Ruth Bros. v. Stambaugh's Adm'R
| Decision Date | 02 December 1938 |
| Citation | 275 Ky. 677 |
| Parties | Ruth Bros. v. Stambaugh's Adm'r et al. |
| Court | United States State Supreme Court — District of Kentucky |
1. Master and Servant. — Where the defense of independent contractor is interposed to an action for death of an employee and the defense is based on an oral contract, and there is no material dispute in the testimony, whether the employee is an independent contractor is for the court but, if there is a conflict in the evidence or if different inferences may be drawn from the testimony concerning the oral contract, the question is for the jury.
2. Automobiles. — Where subcontractor orally engaged another to haul and deliver stone for project from conveyor to highway at a specified price per ton and subcontractor exercised no control over hauling or any employee engaged therein, and employees were hired and paid by other, such other was an independent contractor and subcontractor was not liable for death of third person resulting from negligence of trucker hired by other, irrespective of whether other was to haul all the stone for the project.
3. Master and Servant. — The main question in cases in which the defense of independent contractor is interposed is whether the one claimed to be an independent contractor has contracted to do the work according to his own methods and without being subject to the control of his employer except as to the result of his work.
4. Automobiles. — Where contract for crushed stone was let by the highway commission to a company which sublet to subcontractor, fact that subcontractor was allegedly responsible to commission for full performance did not prevent another who was engaged by subcontractor to haul and deliver from being an independent contractor, as respects subcontractor's liability for death of third person from negligence of trucker hired by such other.
Appeal from Johnson Circuit Court.
HOWES & WALKER and BRADLEY & BRADLEY for appellants.
WHEELER & WHEELER, C.F. PACE and LITTLETON & JARVIS for appellees.
Reversing.
George Stambaugh was killed in a wreck between two trucks on July 18, 1936, and his administrator, William H. Stambaugh, appellee, filed suit against Poplar Ballast Company, Ruth Brothers, C.W. Duncan, Chester Hughes and Marcus Williams. Issue was joined and on a trial before a jury verdict was rendered against Ruth Brothers for $15,000, on which judgment was entered and appellants, Ruth Brothers, prosecute this appeal from that judgment.
George Stambaugh was riding in a truck which came into collision with a truck driven by Marcus Williams and there is no attempt to meet the proof introduced that Williams was negligent. Poplar Ballast Company pleaded that it was an independent contractor and a directed verdict was given in its behalf. Appellants, Ruth Brothers, interposed the defense of independent contractor and this issue was submitted to the jury.
Poplar Ballast Company had a contract with the State Highway Commission by which it agreed for a stipulated price per ton to furnish crushed limestone on the Mayo Trail between Paintsville and Louisa, and it sublet to Ruth Brothers a part of its contract so that Poplar Ballast Company was to furnish the stone and ship it to Paintsville to railroad cars and at this point Ruth Brothers were to receive, unload and spread the stone at a price of fifty cents per ton.
Appellants contend that the court erred in refusing to direct a verdict for them and insist that the evidence shows, as a matter of law, that they were independent contractors and therefore not liable to the plaintiff. Their defense was that after the Poplar Ballast Company sublet the delivery of the stone to them they sublet to defendant, Duncan, and that Marcus Williams, the driver of the truck, was Duncan's employee.
It becomes necessary therefore to review and state the substance of the evidence, introduced under this issue.
Bert W. Cornett, appellees' witness, testifies that he made the contract, subletting the Poplar Ballast contract with John Ruth; that by this contract Poplar Ballast Company was to deliver to Paintsville and Louisa, and Ruth Brothers were to receive the stone there and deliver it on the roads under directions of the highway engineer. He states that before Ruth would close the deal with him he wanted to see another party who was finishing up a job for him and would be loose with some trucks and that Ruth came back later and they closed the deal. This witness never saw either of the Ruths during the delivery of the stone and says that Duncan was in charge at both places (Paintsville and Louisa) and came into the office frequently and checked up on reports. He also states that Duncan informed him that he had the subcontract from Ruth Brothers and was in charge of the work. (No objection was made to this.)
Marcus Williams states that he was employed by Chester Hughes, Duncan's foreman, and paid by Hughes' check; that he did not know either of the Ruth Brothers and never saw them around. Elmer Lyon, assistant cashier of the Second National Bank, testified that on July 13, 1936, Chester Hughes deposited in this bank a check of Duncan's for approximately $900, and a check of Ruth Brothers for $150 on July 24, 1936. He does not testify to whom this check of Ruth Brothers was payable and, as a matter of fact, it was payable to Duncan. On cross-examination it is developed by this witness that a large number of checks were given by Chester Hughes on these deposits in payment for labor and other expenses in connection with the hauling of this stone. All of the above witnesses testified for the appellees on this issue.
For the appellants, John Ruth testifies that he contracted with the Poplar Ballast Company to receive the crushed stone on the railroad cars, unload it and deliver it in trucks on the road under directions of the highway engineer for fifty cents per ton; that he sublet this contract to Duncan by which he was to load the stone on Duncan's trucks and Duncan was to haul and deliver the stone from the conveyor at forty cents per ton; that he had no trucks on the job of hauling and no connection therewith whatsoever; that he did not know any employee engaged in hauling the stone except Chester Hughes, Duncan's foreman; that he paid no one for the work except the contract price to Duncan and had nothing whatsoever to do with it.
It developed on cross-examination of Ruth that the truck driven by Marcus Williams which caused the negligent injuries to Stambaugh from which he died, was purchased by Ruth Brothers about July 1st, some days before the accident, and appellees lay great stress on this fact as evidencing that appellants were the owners of the truck. It appears, however, that Ruth Brothers about the 4th day of July sold this truck to Duncan. Ruth states that this truck was purchased by him from the Rose Motor Company of Greenup and sold by him to Duncan a few days thereafter and that the Rose Motor Company executed a bill of sale to Duncan for same and that the truck was licensed in Duncan's name at the time of this accident. He sold the truck to Duncan for $700 and deducted this sum from amounts due Duncan for hauling this stone, of which sum $300 was deducted shortly after this accident and the remaining $400 sometime later. Ruth also testifies that there was a balance of $1,005 in his hands at the time of the trial due Duncan on this contract of hauling, but that Duncan, for some reason that does not appear, would not accept this as a final settlement.
Roy Roland, the only other witness who testifies on this issue, states that he and his truck were hired by Duncan on this job at $1.40 per hour and that Chester Hughes, Duncan's foreman, hired several other truck drivers and trucks engaged in this hauling. It appears, also, that Duncan had operated a steam shovel for Ruth Brothers a short while before the accident and that he also did contract hauling for them in Carter County about one month before this accident.
The above constitutes the substance of all the material testimony introduced on the issue as to whether or not Duncan was an independent contractor and it becomes necessary to consider the law applicable to this state of facts.
While we mention the testimony with reference to appellants having owned the truck involved in this accident, we do not consider...
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