Mahan v. Litton

• Decision Date: 20 February 1959
• Citation: 321 S.W.2d 243
• Parties: James MAHAN & Dr. Pepper Bottling Company, Paintsville, Kentucky, Appellants, v. Georgie LITTON, Guardian for Willis Litton, Appellee.
• Court: United States State Supreme Court — District of Kentucky

Page 243

321 S.W.2d 243

James MAHAN & Dr. Pepper Bottling Company, Paintsville, Kentucky, Appellants, v. Georgie LITTON, Guardian for Willis Litton, Appellee.

Court of Appeals of Kentucky.

Feb. 20, 1959.

W. A. Johnson, Paintsville, Robert L. Milby, Lexington, for appellants.

G. C. Perry, III, Paintsville, for appellee.

STANLEY, Commissioner.

The appeal is from a judgment for $3,500 damages for personal injuries sustained by the appellee, Willis Litton, represented by his guardian, when a truck being driven by the appellant James Mahan and owned by the appellant Dr. Pepper Bottling Company of Paintsville and Pikeville, Kentucky, left the highway and overturned. The primary question is whether the plaintiff may maintain the common law action for damages rather than have sought relief under the Workmen's Compensation Act, KRS 342.001 et seq. Other questions of contributory negligence and excessive damages are raised, but we do not reach them under our decision of the case.

We regret the appellee's confidence in the strength of his case is such that he has declined to file a brief. This conclusion is not so obvious to us. Rather than apply a more drastic provision of our Rule 1.260, we will accept the appellants' statement of facts and issues as correct and decide the case upon that statement, which we may add, is a fair one. The statement is as follows:

'Litton had been working on Dr. Pepper's trucks for almost two years as a helper to the driver-salesmen, Harry and James Mahan. He was paid one dollar per day for his labor. He was working on the company's truck at the time of the accident. [He was then eighteen years old.] Dr. Pepper pays its driver-salesmen Ten Cents (10cents) per case to deliver and sell its products; Dr. Pepper permits each driver to have one helper who is paid out of the Ten Cents (10cents) per case. Dr. Pepper knew Litton was employed as a helper and that he received compensation from Mahan out of the Ten Cents (10cents) a case. Dr. Pepper reserved the right to discharge the helpers. Litton recognized Willis Hamilton, manager of Dr. Pepper Bottling Company, as the 'boss.' Dr. Pepper Bottling Company operates under the Workmen's Compensation Act.'

The Bottling Company pleaded the court had no jurisdiction because Litton was its employee; the company was operating its business under the provisions of the Workmen's Compensation statute, and Litton had automatically accepted those provisions by virtue of KRS 342.395. Depositions of Litton, Mahan and Hamilton, manager of the plant, were filed. The defendants' motion to dismiss the complaint for want of jurisdiction was overruled, and the case was tried.

Ordinarily, when a question of the employer-employee relationship is involved, the alleged employer takes the position that the person injured was not his employee and that he was not liable under the Compensation Act. In this case the question is presented conversely and in the affirmative.

Wherever the Workmen's Compensation law is applicable, the rights and remedies granted or provided thereby are exclusive with certain exceptions which the statute makes. Hence, the right to maintain an action for damages for personal injuries and any corresponding liability of the employer to the employee for negligence of the employer, directly or under the doctrine of respondeat superior, are extinguished, and no common law action can be maintained to recover damages. KRS 342.015. Standard Oil Co. v. Cheek, 278 Ky. 508, 128 S.W.2d 950.

It is certain that Litton was not a mere volunteer or stranger. He was an employee either of the bottling company or of Mahan as an independent contractor. If the latter, of course, there was no responsibility upon the bottling company for Mahan's negligence. Standard Oil Co. v. Cheek, supra, 278 Ky. 508, 128 S.W.2d 950.

The question of the relationship of employer and employee has usually arisen in respect of liability or nonliability for tort and in claims for workmen's compensation. The test in the two categories is substantially the same. If there is any difference, it lies in the attitude of greater liberality in workmen's compensation cases to hold the relationship to exist than in cases of vicarious liability for tort.

The usual approach to the proposition of whether a person helping a recognized employee in the discharge of his duties is an employee is to see whether or not the relationship of the helper to the employer is such that he is liable for some wrongful act or omission of the helper to a third party or, as above recited, whether the employer is liable under the Workmen's Compensation Act for injuries sustained by the helper. It may be observed that the relationship of master and servant may exist for one purpose and some other relationship for other purposes. 56 C.J.S. Master and Servant § 2, p. 31.

Various elements may tend to indicate the existence of the relationship. No one fact or circumstance is necessarily conclusive. Prominent among the tests usually applied generally is the right of one party to direct what work shall be done by the other and the manner in which it shall be done and the existence of the power to discharge him from service. 56 C.J.S. Master and Servant § 2, pp. 33-36. Sam Horne Motor and Implement Co. v. Gregg, Ky., 279 S.W.2d 755, 53 A.L.R.2d 626; New...