Rich v. Holmes

• Decision Date: 04 May 1932
• Parties: NELLIE C. RICH v. W. E. HOLMES ET AL
• Court: Vermont Supreme Court

160 A. 173

104 Vt. 433

NELLIE C. RICH v. W. E. HOLMES ET AL

Supreme Court of Vermont

May 4, 1932

February Term, 1932.

Master and Servant---Rule for Determining Whether Relationship Is That of Independent Contractor---Sufficiency of Evidence To Show Person To Be Independent Contractor---Disposition of Case upon Reversal---Effect of Taking Case to Supreme Court on Exceptions---Judgment upon Affirmance---Execution upon Affirmance of Judgment in Supreme Court---Facts Held To Require Reversal as to but One of Two Defendants.

1. Rule for determination of whether existing relationship is that of independent contractor or master and servant is whether under contract alleged master has right to control not only result but also means and methods adopted to accomplish result.

2. Where garage repairman, after completion of repairs on automobile, was directed by owner to deliver such car at specified place, but details of making delivery were left wholly to former's uncontrolled discretion, held that he was independent contractor, and not servant and agent of such owner.

3. Reversal as to party wrongfully adjudged liable does not require reversal as to party properly subjected to liability common-law rule that judgment against two or more defendants is an entirety, and that reversal of judgment as to one or more appealing operates as reversal as to all, no longer being followed.

4. When case is regularly passed to Supreme Court by filing of bill of exceptions, whether by one or all of defendants, whole judgment is brought up so as to give Supreme Court jurisdiction to render any judgment to which parties are shown to be entitled.

5. When judgment of county court in case taken to Supreme Court on exceptions is affirmed, judgment of county court becomes judgment of Supreme Court and is merged therein.

6. When case is taken from county court to Supreme Court by filing bill of exceptions, and execution is stayed by order of county court, upon affirmance G. L. 2265 requires Supreme Court to render final judgment, and execution issues from Supreme Court.

7. Reversal as to one defendant taking case to Supreme Court on exceptions, held, under circumstances of case, not to require reversal as to co-defendant, who did not appear in Supreme Court and urge any error or irregularity in proceedings below, ground of reversal not affecting his liability, and record showing him to be active wrongdoer.

ACTION OF TORT to recover damages for personal injuries resulting from the negligent operation of an automobile. Plea, general issue. Trial by jury at the June Term, 1931, Bennington County, Sturtevant, J., presiding. Verdict for the plaintiff against both defendants, and judgment thereon. The defendant W. E. Holmes excepted. The opinion states the case.

Judgment against defendant Holmes reversed, and judgment for this defendant to recover his costs; judgment against defendant Pederson affirmed.

Lawrence Stafford & O'Brien for the defendant W. E. Holmes.

Present: POWERS, C. J., SLACK, MOULTON, THOMPSON, and GRAHAM, JJ.

OPINION

GRAHAM

The action is to recover damages for personal injuries resulting from the negligent operation of the automobiles of the defendants. Trial was by jury. The verdict was in favor of the plaintiff against both defendants, and judgment was rendered thereon. The defendant Holmes alone brings exceptions to this Court. The defendant's exceptions are to the denial of his motion for a directed verdict, and to the charge of the court, and they present a single question: Was the driver of the Holmes automobile acting as the agent and servant of defendant Holmes at the time of the accident, or was he at that time an independent contractor?

In the latter part of August, 1930, Holmes, a resident of Wichita Kansas, was traveling in his automobile in the vicinity of Randolph, Vermont. He there met with some difficulty which necessitated repairs to his car. It was taken to the garage of George S. Allen in the village of Randolph for that purpose. The repairs required new parts, which had to be ordered by Allen from the factory. Holmes went to Boston to visit friends, and at that time he intended to return to the Allen Garage in Randolph for his car after the new parts were delivered and the repairs were made. He telephoned Allen twice from Boston to learn about the progress of the repair work. The last telephone conversation was about eleven o'clock in the forenoon of August 30, and Holmes then learned from Allen that the parts had arrived and were being installed. During this same conversation, Holmes asked Allen to meet him at some place on the line of railroad from Boston to the west, at either Springfield or Pittsfield, Massachusetts, or Albany, New York. After consulting a map, Allen told Holmes that he would bring the car to Pittsfield, and Holmes then told Allen what time his train would arrive in Pittsfield, and that he would be waiting at a hotel there. Holmes also told Allen to instruct the man who drove the car to Pittsfield what the cost of that service was so he could pay it. Allen elected to drive the car himself, and when the repairs were completed at about four forty-five that afternoon, he started for Pittsfield. Before leaving Randolph, Allen placed his own garage plates over the Kansas number plates then on the car. In driving the car from Randolph to Pittsfield, Allen traveled over the road through Bethel, Stockbridge, Rutland to Manchester, and while he was proceeding south from Manchester to Bennington the accident occurred, resulting in the injuries complained of in this action.

After the accident, Allen proceeded with the car to Pittsfield, where he delivered it to Holmes, and was paid both for the repairs and for his services and expenses making delivery, including the cost of gasoline and oil used in the car on the trip from Randolph to Pittsfield.

The plaintiff makes no question but that the defendant's motion for a directed verdict should have been granted, if, on the facts stated, Allen was at the time of the accident driving the Holmes car as an independent contractor, and not as the servant of Holmes. The rule which is to guide us to a determination of the relationship existing between Allen and Holmes is whether under the contract Holmes had the right to control not only the result, but also the means and methods adopted to accomplish that result. Richards v. Consolidated Lighting Co., 90 Vt. 552, 99 A. 241; Kelley's Dependents v. Hoosac Lumber Co. et al., 95 Vt. 50, 53, 113 A. 818; LeBlanc v. Nye Motor Company, 102 Vt. 194, 199, 147 A. 265. In Kelley's Dependents v. Hoosac Lumber Co., supra, it is stated that if the party for whom the work is being done may prescribe not only what the result shall be, but also may direct the means and methods by which the other shall do the work, the former is an employer, and the latter an employee. But if the former may specify the result only, and the latter may adopt such means and methods as he chooses to accomplish that result, then the latter is not an employee, but an independent contractor.

With this crucial test in mind, it only remains to apply it to the facts as stated. The defendant contends that the arrangement for delivery of the car at Pittsfield was a modification of the original contract of bailment, and should be considered and construed as a part of it. But the plaintiff argues that the undertaking for delivery was separate and distinct from the contract for repairs. We think that the plaintiff's version of the contract is correct but whichever view is taken of it, the result will be the same. The terms of the contract as completed provided only that Allen should make delivery of the car to Holmes at Pittsfield, and receive compensation therefor. Holmes specified only the result, which was delivery at Pittsfield. The details of making delivery...