Marion Mach., Foundry & Supply Co. v. Duncan

• Decision Date: 19 March 1940
• Docket Number: Case Number: 29132
• Citation: 101 P.2d 813,1940 OK 136,187 Okla. 160
• Parties: MARION MACHINE, FOUNDRY & SUPPLY CO. v. DUNCAN
• Court: Oklahoma Supreme Court

1940 OK 136

101 P.2d 813

187 Okla. 160

MARION MACHINE, FOUNDRY & SUPPLY CO. v. DUNCAN

Case Number: 29132

Supreme Court of Oklahoma

Decided: March 19, 1940

Syllabus

¶0 1. MASTER AND SERVANT--Action based on theory of respondeat superior--Lack of issue to submit to jury where evidence undisputed that third party was defendant's independent contractor.

Where plaintiff seeks to charge defendant with the negligence of another on the theory of respondeat superior and there is positive undisputed evidence that the third party was defendant's independent contractor, there is no issue for submission to the jury.

2. SAME--"Independent contractor" defined.

An "independent contractor" is one who engages to perform a certain service for another, according to his own manner and method, free from control and direction of his employer in all matters connected with the performance of the service, except as to the result or product of the work.

3. SAME-- Principal contractor liable for negligence of independent contractor only in exceptional cases.

A person performing work through an independent contractor is not liable for damages to third persons caused by the negligent performance of the work by the latter, except where the work is inherently dangerous or unlawful or in cases where the principal contractor owes a contractual or defined legal duty to the injured party in the performance of the work.

4. AUTOMOBILES--Operation of motor truck not inherently dangerous.

The operation of a motor truck is not inherently dangerous.

Appeal from District Court, Carter County; J. I. Goins, Judge.

Action by Eunice Duncan against Marion Machine, Foundry & Supply Company, a corporation. Judgment for plaintiff, and defendant appeals. Reversed.

Dolman, Dyer & Dolan, of Ardmore, for plaintiff in error.

Champion, Champion & Fischl, of Ardmore, for defendant in error.

GIBSON, J.

¶1 This is an action for wrongful death. Judgment was rendered on verdict for plaintiff below, and defendant has appealed.

¶2 Plaintiff's husband was killed when his automobile was driven into the rear end of a truck parked on or near the edge of a paved highway. The truck belonged to one Graves, an alleged agent of the defendant, and was being operated at the time by two employees of said alleged agent.

¶3 Plaintiff sought to link defendant with the accident through the medium of a subsisting master and servant relationship between defendant and Graves, while the defendant insisted that Graves was its independent contractor.

¶4 Such was the principal issue; and the paramount question on appeal is whether the evidence warranted submission of the question of agency to the jury.

¶5 According to the undisputed evidence Graves owned the truck, and that the operators thereof at the time of the accident were his employees. The truck was loaded with oil field tubing belonging to defendant. The defendant had engaged Graves at a stipulated consideration to haul the tubing from a point in Texas to Wilson in this state. Defendant exercised no particular control over Graves. Its agents were to advise Graves where to pick up the tubing in a designated town in Texas, and the exact place to unload it in the town of Wilson. Otherwise defendant had no part in the trip except to pay Graves the compensation theretofore agreed upon.

¶6 The burden was on plaintiff in this case to establish the fact of agency or the relationship of master and servant between defendant and Graves. The only facts established by plaintiff in this regard were that Graves with his own truck and his own employees was hauling a load of tubing for defendant. Thus it was shown that Graves was performing services for defendant. It has been said that this type of evidence is sufficient to raise a presumption of agency and to shift the burden to defendant to overcome the same. Oklahoma City Const. Co. v. Peppard, 43 Okla. 121, 140 P. 1084; Ellis & Lewis, Inc., v. Trimble, 177 Okla. 5, 57 P.2d 244.

¶7 To rebut the presumption the defendant established the facts as related above. That evidence, as we have said, was undisputed by plaintiff. It was clearly shown that Graves was an independent contractor. Practically every element usually considered by the court when confronted with this question pointed to an independent contractor relationship. See Ellis & Lewis, Inc., v. Trimble, supra. In that case the court defines an independent contractor, as distinguished from an agent or servant, as follows:

"An independent contractor is one who engages to perform a certain service for another, according to his own manner and method, free from control and direction of his employer in all matters connected with the performance of the service, except as to the result or product of the work."

¶8 That definition well applies to Graves in the instant case. The evidence produced by defendant and stated above clearly substantiates our statement. When defendant produced that evidence, the plaintiff should then have assumed the burden of proof on the issue and proceeded with it, all of which she failed to do. So we adopt here the language of the court as employed in the last-cited case in connection with an almost identical situation. It reads as follows:

"In the face of evidence such as defendant introduced, the plaintiff was bound to assume the burden of the proof on that issue and to go forward with it. He did not do so. Therefore, the court committed error in submitting the issue to the jury."

¶9 The issue there mentioned was that of independent contractor.

¶10 Here there was no dispute in the material facts. The rule with reference to submission of the issue to the jury in such case is stated in Branham v. International Supply Co., 166 Okla. 273, 27 P.2d 354, as follows:

"Where the evidence is undisputed, the question of whether the relation of the parties is that of contractor and contractee or employer and employee is one of law for determination by the court."

¶11 There was evidence to show that Graves had not complied with the Motor Carrier Act in that he had failed to procure a permit from the Corporation Commission as required by said act (chapter 156, S. L. 1933, 47 Okla. Stat. Ann. §161, et seq.). There is evidence also to show that his drivers on the night of the accident violated the port of entry act by failing to stop at the border when entering the state with the load of tubing aforesaid (chapter 50, art. 1, S. L. 1935, 47 Okla. Stat. Ann. § 191, et seq.). While plaintiff admits that there was no causal connection between the violation of these laws and the accident, and that the defendant could not be charged with negligence on that theory (Bradley v. Chickasha Cotton Oil Co., 184 Okla. 51, 84 P.2d 629), she insists that there was evidence that the defendant aided or abetted Graves in the violations, and that such evidence was sufficient to show that the defendant took a personal interest in and supervision over the hauling, and that by reason thereof defendant was estopped to assert an independent contractor relationship between it and Graves.

¶12 There is language appearing in the Bradley Case, above (184 Okla. 51, 84 P.2d 629) to indicate that a shipper's act in aiding the carrier in the violation of the motor vehicle law would, under certain circumstances, constitute evidence of a relationship of master and servant between those parties. But here there was no evidence worthy of consideration to indicate that the defendant...