Redfield v. Chelsea Coal Co.

• Decision Date: 10 December 1932
• Docket Number: 30816.
• Citation: 136 Kan. 588,16 P.2d 475
• Parties: REDFIELD v. CHELSEA COAL CO. [*]
• Court: Kansas Supreme Court

16 P.2d 475

136 Kan. 588

REDFIELD v. CHELSEA COAL CO. ^[*]

No. 30816.

Supreme Court of Kansas

December 10, 1932

Syllabus by the Court.

Where mining company engaged truck owner to haul coal, owner's driver over whom company exercised no control held not company's "servant" or "agent," as regards liability for collision damages.

Servant must be engaged in master's business when tort is committed to render master liable.

Evidence held insufficient to establish that driver of truck, owner of which mining company had engaged to haul coal, was engaged in company's business when collision occurred.

1. Where a coal mining company makes a contract with a truck owner to haul coal from a mine to a loading tipple, and the truck owner hires drivers for his trucks, and the mining company exercises no control over the drivers as to the manner in which they carry on their work, the truck drivers are not the servants or agents of the mining company.

2. In order for a master to be liable for the torts of his servant the servant must be engaged on the business of the master when the tort is committed.

3. The record in a suit against a coal mining company for a tort of a truck driver is examined, and it is held that the evidence offered did not prove that the truck driver was the agent or servant of the coal mining company, or that he was engaged in the business of the mining company when the tort was committed.

Appeal from District Court, Crawford County, Division No. 2; Joe Gaitskill, Judge.

Action by George L. Redfield against the Chelsea Coal Company. Judgment for defendant, and plaintiff appeals.

Servant must be engaged in master's business when tort is committed to render master liable.

Win. H Sprecher, of Arcadia, and Caroline A. Lowe, of Pittsburg, for appellant.

P. E Nulton and G. L. Stevenson, both of Pittsburg, for appellee.

SMITH J.

This was an action for damages growing out of a collision of an automobile with a truck. Judgment was for defendant sustaining a demurrer to the evidence of plaintiff. Plaintiff appeals.

The collision occurred on May 8, 1930, at a point where highway 66 is intersected by a county line road. Highway 66 is a heavily traveled north and south federal highway. Near the point where the collision occurred, the Chelsea Coal Company operates a coal mine. About 800 feet west of the intersection is located the loading tipple of appellee. This tipple is made by making an earth grade on which trucks could drive up loaded with coal. When they reach the top the truck is dumped and the coal falls into the railway cars below. The railroad track runs parallel with the highway at this point. The railroad track was about 150 feet west of the road. It is considerably higher than the highway, so that from the railroad tracks to the highway there is a down grade. About a mile and a half east of the intersection is located a strip pit coal mine operated by defendant. The road upon which the truck was traveling when it attempted to cross the highway is used for the passage of trucks in hauling coal from the mine of appellee on the east of the highway to the loading tipple west of the highway, and for other traffic.

The truck which collided with the car in which appellant was riding was being driven by a man named Henry Land. The truck belonged to a man named Fred Garland. Suit was brought against the Chelsea Coal Company on the theory that Land was the agent of the coal company. The petition alleged that Land was the agent of the company. This was denied by appellee under oath. It was necessary for appellant, in order to establish liability against the coal company, to prove that Land was the agent of the company, and was engaged in business of the company when the collision occurred. There is an argument made that the evidence of appellant showed that he was guilty of contributory negligence. In view of the conclusion we have reached on the question of agency, it will not be necessary to discuss that question in this opinion.

Immediately after the collision, Henry Land told appellant that he was hauling coal for the Chelsea Coal Company. When this evidence was offered, the court sustained an objection to it on the ground that it was an attempt to prove agency by a...