Sams v. Hughes

• Decision Date: 23 March 1950
• Parties: , 59 Ohio Law Abs. 484, 44 O.O. 179 SAMS v. HUGHES.
• Court: Ohio Court of Appeals

Page 199

90 Ohio App. 199

105 N.E.2d 460, 59 Ohio Law Abs. 484, 44 O.O. 179

SAMS v. HUGHES.

Court of Appeals of Ohio, Highland County.

Decided March 23, 1950.

Syllabus by the Court.

1. Whether the relationship of independent contractor or principal and agent exists depends upon the particular facts of a given case; and where the right to control the manner and means of doing the work is reserved, the relationship established is that of principal and agent; but where the control of the result only of the work is reserved, the manner and means of the doing thereof being controlled by the one who is responsible only for the result, the relationship of independent contractor is established.

2. The delivery of an automobile to a garage for repairs creates a contract of bailment, an implied term of which is the redelivery of such automobile to its owner, and where the owner reserves no control or right to control over the manner and means of redelivery, he incurs no liability for the negligent operation of such automobile by the garageman in effecting such redelivery.

3. In an action in which the facts giving rise to an issue are not in dispute, it is the duty of the court to charge the jury as to the result that must attend the application of the law to such established facts; and, where the issue is whether the relationship of principal and agent or independent contractor exists, it is the court's duty to instruct the jury as to which relationship is established.

Harold A. Predmore, Hillsboro and Rendigs & Fry, Cincinnati, for appellee.

Matthews & Altick, Dayton, and Eugene A. Hahne, Hillsboro, for appellant.

METCALF, Judge.

This appeal grows out of an action brought by Donald C. Sams, father of a minor daughter six years of age, to recover for medical, hospital, nursing and other expenses incurred by him by reason of injuries sustained by such minor as a result of being struck by an automobile owner by the defendant-appellant, Ferris L. Hughes, which at the time of the accident was being driven by Edward Barrett, a garage and filling station operator who was delivering the automobile to defendant's residence after it had been repaired in a garage operated jointly by Barrett and one Woodrow Reno.

The jury found in favor of the plaintiff and returned a verdict against the defendant in the sum of $8,772. It is from that verdict and the judgment thereon that this appeal is taken on questions of law. While there are six separate assignments of error, counsel for both parties agree that the assignments present only two questions of law, there being no dispute of any consequence relative to the facts. These questions are: First, did the trial court err in deciding that the driver of the automobile was the agent of defendant rather than an independent contractor, in operating defendant's automobile at the time of the accident? Second, did the trial court err in refusing to give appellant's special charge No. 2?

We will dispose of the second question by simply stating that an examination of special charge No. 2 discloses that, while perhaps not so intended, it is confusing in that it throws upon this minor child the duty of exercising at least some degree of care, and can easily be interpreted as charging her with being capable of contributory negligence, with which she can not be charged by reason of her infancy. True, it contains the word, 'solely,' in reference to the cause of such injuries yet, in our opinion, its lack of clarity made mandatory the court's refusal to give it.

The one important question in this case is whether Barrett, the driver of the car at the time of the accident, was an independent contractor or the servant of the defendant.

The defendant is a farmer residing two and one-half miles south of Hillsboro, Ohio. On May 2, 1946, the time of the accident involved herein, Edward Barrett was the proprietor of a filing station combined with a small garage, located on North High street in Hillsboro and called the Barrett Service Station. Barrett operated the service station individually, but he, together with one Woodrow Reno, an automobile mechanic, operated jointly the garage part of the business, Reno making repairs on cars brought there for that purpose. The record indicates that Reno had nothing to do with the filling station part of the business, it being operated independently by Barrett.

On the morning of the above date the defendant, Hughes, brought his automobile to this garage to be repaired. Barrett was not there at the time and the only contact had by the defendant was with Reno.

On the question of the delivery of the car after the completion of the repairs the defendant, Hughes, testified:

'When he [Reno] drove up he asked me if I wanted him to call me when he got it done. I said, you probably won't get it done today. He said, I will bring it out. Now that was just the words he said, I'll bring it out. I said O. K.'

Mr. Reno testified:

'Well, say I asked Mr. Hughes if he wanted the car delivered and Mr. Hughes said, O. K.'

Reno testified further that he told his partner, Barrett, that the automobile was to be delivered; that he had no instructions as to the manner or mode in which the car was to be driven or the route over which it was to be driven; that it was customary, with the authority of the owner, in the operation of the service station and garage business to deliver customers' automobiles without charge after the repairs were completed; and that this was done as a courtesy on the part of the garage.

The repairs to the automobile were completed by Reno, and about 12:30 o'clock on that day Barrett drove the automobile from the garage for the purpose of delivering it to the residence of the defendant. Barrett testified by deposition and stated in substance that he chose the route and the manner and mode of driving in delivering the automobile to the defendant, Hughes. As he proceeded southwardly on High street in Hillsboro the car struck and injured plaintiff's daughter who was running westwardly across the street at a point other than an intersection or crosswalk.

It should be noted that the defendant moved for a directed verdict at the close of all the evidence; moved for a judgment notwithstanding the verdict; and moved for a new trial, all of which motions were overruled.

Since the facts were not in conflict, counsel for both parties joined in asking the court to declare as a matter of law what relationship existed between the defendant, Hughes, and the driver of the car, Barrett. Under such circumstances it became the duty of the trial court to charge the jury as to the result that must follow an application of the law to the facts so established, and, since the question is whether the relationship of master and servant or that of independent contractor arose by reason of such facts, the trial court should have instructed the jury as to which relationship existed. Schickling v. Post Publishing Co., 115 Ohio St. 589, 155 N.E. 143.

This the trial court did in its general charge by instructing that the plaintiff must prove 'That the driver of the automobile was acting as defendant's agent at the time of the accident.

'And now since there is no conflict in the testimony as to that, the court has found that he was so acting as agent, and therefore, the principal is liable for any negligence of his agent. That eliminates that issue.'

In determining the correctness of this charge an examination of the rules promulgated by the Supreme Court of Ohio, distinguishing the relationship of master and servant from that of employee and independent contractor, is imperative.

In the case of Miller v. Metropolitan Life Ins. Co., 134 Ohio St. 289, on pages 291, 292, 16 N.E.2d 447, 448, the court said:

'The relation of principal and agent or master and servant is distinguished from the relation of employer and independent contractor by the following test: Did the employer retain control, or the right to control, the mode and manner of doing to work contracted for? If he did, the relation is that of principal and agent or master and servant. If he did not but is interested merely in the ultimate result to be accomplished, the relation is that of employer and independent contractor.'

The Supreme Court in the case of Gillum v. Industrial Commission, 141 Ohio St. 373, 48 N.E.2d 234, again announced the test to be applied in determining whether one is an independent contractor or servant. The second paragraph of the syllabus reads:

'Whether one is an independent contractor or in service depends upon the facts of each case. The principal test applied to determine the character of the arrangement is that if the employer reserves the right to control the manner or means of doing the work, the relation created is that of master and servant, while if the manner or means of doing the work or job is left to one who is responsible to the employer only for the result, an independent contractor relationship is thereby created.'

The defendant's automobile was delivered to the garage for repair, thereby creating a contract of bailment, one of the implied terms of which is the redelivery of the automobile to its owner. This may be done upon the premises of the garage by placing the automobile where it is accessible to its owner or at any other place agree upon by the bailor and bailee. The redelivery of the automobile to its owner was as much a part of the contract of bailment as the repairs that were to be made. The garageman was under no obligation, contractual or otherwise, in the first instance, to offer to return or deliver the automobile to the defendant at his farm home. He volunteered to do this in lieu of telephoning the owner and the latter accepted the offer. That it was without extra remuneration or, according to the testimony of Reno, that it was done to accommodate customers when it was able to be done is beside the point. It is strenuously urged by counsel for plaintiff...