Lynn v. Roberts
| Decision Date | 02 March 1932 |
| Docket Number | Nos. 51,52.,s. 51 |
| Citation | 241 N.W. 214,257 Mich. 116 |
| Parties | LYNN v. ROBERTS. WIMBUSH v. SAME. |
| Court | Michigan Supreme Court |
OPINION TEXT STARTS HERE
Appeal from Circuit Court, Wayne County; Guy A. Miller, Judge.
Separate suits by James R. Lynn and by John Wimbush against F. Leon Roberts were tried as one. Judgments for plaintiffs, and defendant appeals.
Affirmed.
Argued before the Entire Bench.John E. Martz, of Detroit (Longley, Bogle & Middleton, of Detroit, of counsel), for appellant.
Ritchie S. Barrie, of Detroit, for appellees.
These two cases were tried as one, with separate damages awarded. Plaintiff Wimbush owned and operated a gasoline filling station, and ordered benzol from defendant. Mr. Roberts was engaged in selling benzol and gasoline to retail dealers at filling stations, and to make deliveries of orders he provided an owner of two trucks with tanks to be mounted thereon, and paid the owner of the trucks a percentage commission for making deliveries and collecting and returning payments. The driver of one of the trucks made a delivery of benzol at the filling station of Mr. Wimbush on the 3d day of April, 1926, and, while doing so, carelessly spilled several gallons of the benzol upon the ground, a few feet from the building. At closing time that night Mr. Wimbush and plaintiff James B. Lynn went into the basement of the filling station to close up for the night, and plaintiff Wimbush struck a match, and an explosion followed, seriously burning both men and wrecking the building. These suits were brought to recover damages for personal injuries and loss of earnings by both men and by Mr. Wimbush for damages also to his building. Trial by jury resulted in verdicts for both plaintiffs, and defendant Roberts reviews by appeal. Defendant Roberts contended in the circuit court, and makes renewal thereof here, that the owner of the truck was an independent contractor, and therefore he is not liable to respond for the consequences, if any, arising out of the negligence of the driver of the truck. It appears that orders for benzol were given by retail dealers to defendant Roberts, and he communicated the same to the owner of the trucks, who was furnished with blank delivery slips, and that the truck driver in filling an order procured the benzol from a supply arranged for by Mr. Roberts, made out a delivery ticket, delivered the benzol, collected pay therefor, and returned the money to Mr. Roberts. The circuit judge held that the owner of the trucks was not an independent contractor. Upon this question many cases are cited by counsel for plaintiffs and defendant. We find it unnecessary to make review of such cases. The rule applicable to the facts in this case is found in Dennis v. Sinclair Lumber Co., 242 Mich. 89, 218 N. W. 781, 782. In that case:
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