Nolan v. Nally

• Decision Date: 20 January 1961
• Citation: 342 S.W.2d 400
• Court: United States State Supreme Court — District of Kentucky
• Parties: Dillard NOLAN, Appellant, v. Sam NALLY et al., d/b/a Nally & Boone, Appellees. Burley HOWARD, Appellant, v. Dillard NOLAN, Appellee. Fred HAGAN, Appellant, v. Dillard NOLAN, Appellee.

Page 400

342 S.W.2d 400

Dillard NOLAN, Appellant, v. Sam NALLY et al., d/b/a Nally & Boone, Appellees.

Burley HOWARD, Appellant, v. Dillard NOLAN, Appellee.

Fred HAGAN, Appellant, v. Dillard NOLAN, Appellee.

Court of Appeals of Kentucky.

Jan. 20, 1961.

Cawood Smith and G. E. Reams, Harlan, for Dillard Nolan.

Smith & Shehan, Harlan, for Burley Howard.

Joseph K. Beasley, Harlan, for Fred Hagan.

John P. Sandidge and Woodward, Hobson & Fulton, Louisville, for Nally, Boone and Hamilton.

CLAY, Commissioner.

Plaintiff Nolan brought this suit for personal injuries and automobile damage against defendants Howard, Hagan, Nally, Boone and Hamilton. Howard drove the truck with which the plaintiff collided. Hagan apparently was the owner. Defendants Nally, Boone and Hamilton (comprising a business firm we will hereafter refer to as Nally and Boone) had rented the vehicle on the day of the accident. The claimed liability of all defendants except Howard is based on an alleged agency relationship.

On motion the trial court dismissed the complaint against Nally and Boone. It denied a similar motion made by Hagan. The jury returned a verdict for plaintiff in the amount of $23,000 against Howard and Hagan.

Plaintiff appeals on the grounds (1) the court erroneously directed a verdict for Nally and Boone, and (2) refused to admit evidence of the latter's liability insurance policy. Hagan appeals on the principal ground that he was entitled to a directed verdict. Howard appeals on the grounds the court erred in (1) the admission and exclusion of evidence, (2) denying a directed verdict, and (3) the giving of a certain instruction.

The principal controversy between the plaintiff and all of the defendants, except the driver of the truck, Howard, is whether or not Howard at the time of the accident was an independent contractor. If so, the trial court properly directed a verdict for Nally and Boone and erroneously failed to direct a verdict for Hagan on the same ground. We will first consider the liability of Hagan, assuming he was the owner of the truck.

Howard operated a garage. Hagan delivered the truck to Howard to do some work on it. While there is a great deal of argument in the briefs about the details of the transaction, Howard agreed to return the truck that evening to the home of Hagan's regular driver (after performing the work and test driving it). Howard completed the work about 5:30 in the afternoon, gave the truck a road test, and left it at his garage while he went home for supper. Returning about an hour later (after dark) he backed the truck onto the highway, intending to deliver it as agreed. While the vehicle was crosswise in the road plaintiff collided with it. Assuming Howard was negligent, the question is whether or not he was at that time the agent of Hagan so that the latter would be liable to the plaintiff under the doctrine of respondeat superior.

Reduced to its essentials, we have a situation where a garageman as an incident to or in addition to performing work on a motor vehicle undertakes to return it to the owner. Is he then an independent contractor, which admittedly he was while performing the work and test driving the vehicle, or is he somehow converted into an agent of the owner for this trip?

While there are many factors that may be significant in determining whether a person is a servant or an independent contractor (several of which have no bearing on our problem), the most significant consideration is the control or right of control by the alleged employer of the manner in which the particular enterprise will be carried out. See Sam Horn Motor & Implement Co. v. Gregg, Ky., 279 S.W.2d 755. When the problem involves the use of a motor vehicle, the question of control concerns the operation of the motor vehicle on the specific trip involved. See Johnson v. Byrne & Speed Coal Corporation, 271 Ky. 216, 111 S.W.2d 671; Shedd Brown Mfg. Co. v. Tichenor, Ky., 257 S.W.2d 894.

The closest case on the facts in Kentucky is Stamper v. Jesse, 199 Ky. 324, 250 S.W. 1008. There Jesse, the owner of an automobile, engaged Shuck, a garageman, to repair and sell it. The latter came to the owner's home, picked up the car, and on his way back to his place of business an accident occurred. A directed verdict for the owner in a suit by an injured third party was affirmed. The court said, at page 1008 of 250 S.W.:

'Therefore, when Shuck took possession of the car, he was not subject to discharge by Jesse, or to his direction, supervision, or control in any way whatever. On the contrary, he was his own master, with full power to select his own route, fix the speed of the car, and regulate its movement in any way that he saw fit. It follows that Shuck was not Jesse's agent, but was an independent contractor, for whose negligence Jesse was not responsible.'

It appears to be the universally accepted rule that when a garageman takes possession of an automobile for the purpose of transporting it to his place of business for storage or servicing, the garageman is an independent contractor on that trip. See 18 A.L.R. 974; 35 A.L.R.2d 811. In the great majority of jurisdictions the same rule is applied when the garageman is returning the vehicle to the owner. See annotations just cited. In the following cases, which involved substantially the same facts presented here, it was decided the garageman was still an independent contractor when returning the vehicle to the owner. Sams v. Hughes, 99 Ohio App. 199, 105 N.E.2d 460; Simmons v. Beatty, 61 Ga.App. 759, 7 S.E.2d 613; Gatz v. Smith, Tex.Civ.App., 205 S.W.2d 616; Netzer v Isaacson Garage & Motor Sales Co., 312 Ill.App....