Postal Telegraph-Cable Co. v. Murrell

• Decision Date: 19 March 1918
• Citation: 201 S.W. 462,180 Ky. 52
• Parties: POSTAL TELEGRAPH-CABLE CO. v. MURRELL.
• Court: Kentucky Court of Appeals

201 S.W. 462

180 Ky. 52

POSTAL TELEGRAPH-CABLE CO. v. MURRELL.

Court of Appeals of Kentucky.

March 19, 1918

Appeal from Circuit Court, Jefferson County, Common Pleas Branch First Division.

Suit by Anna E. Murrell against the Postal Telegraph-Cable Company. Judgment for plaintiff, and defendant appeals. Affirmed.

A. E Richards, A. B. Bensinger, and Wm. W. Cook, all of Louisville, for appellant.

Hubbard & Hubbard and James W. Garrison, all of Louisville, for appellee.

CARROLL J.

The appellee, Mrs. Murrell, while crossing Fourth street at its intersection with Market street in the city of Louisville and at the place in the intersection set apart for foot passengers, was struck and knocked down by a messenger boy riding a bicycle, who at the time was in the employment of the Postal Telegraph-Cable Company. In a suit against the telegraph company to recover damages for the injury sustained, on the ground that the collision was caused by the negligence of the messenger boy, a servant of the company there was a verdict and judgment in favor of Mrs. Murrell.

On this appeal two grounds are relied on for reversal: First, that there was no evidence of negligence; and, second, that the messenger boy occupied the relation of independent contractor, and not that of a servant of the telegraph company, and therefore it was not liable for his negligence even should it be assumed that the collision and resulting injury were caused by his negligence.

There is no complaint about the instructions, and the evidence was sufficient to sustain the contention of Mrs. Murrell that while in the act of crossing the street at the place set apart for foot passengers, and at a time when she was exercising ordinary care for her own safety, she was run into and knocked down by the messenger boy, who at the time was operating his bicycle in a negligent and careless manner. Of course there was conflict in the evidence on this issue, as there always is in cases like this, and there might have been a verdict for either party, but the jury who heard the case decided this issue of fact in favor of Mrs. Murrell, and we will not interfere with their finding.

As to the defense that the relation of master and servant did not exist between the telegraph company and Langford, the messenger boy, but that he occupied the attitude of an independent contractor, the trial judge sustained a demurrer to so much of the amended answer as set up that Langford--

"was employed by this defendant only upon the following terms and conditions, to wit: He was employed as an independent contractor to collect and to deliver various telegrams tendered to the defendant for transmission or received over its wires in consideration of individual compensation for each individual telegram either collected or delivered by him as aforesaid, at the rate of two cents for each telegram that this was the sole compensation paid said messenger; that said messenger paid for his own uniform and furnished his own bicycle which he used in the said employment, and paid for the upkeep and repairs thereon, and also paid for his daily lunch. Defendant further states that said messenger was not subject to its direction or control during the collection or delivery of telegrams as aforesaid, but said messenger used his own discretion and volition in said collection and delivery, and was responsible to this defendant only for the result of his work, and was not subject to its control as to the means by which the result was accomplished. Defendant states that after said messenger had left its office for the purpose of collecting or delivering any telegram, and particularly the telegram or telegrams collected or delivered...