Sargent Paint Company v. Petrovitzky

• Decision Date: 20 November 1919
• Docket Number: 9,927
• Citation: 124 N.E. 881,71 Ind.App. 353
• Parties: SARGENT PAINT COMPANY v. PETROVITZKY
• Court: Indiana Appellate Court

124 N.E. 881

71 Ind.App. 353

SARGENT PAINT COMPANY v. PETROVITZKY

No. 9,927

Court of Appeals of Indiana

November 20, 1919

From Marion Superior Court (100,789); W. W. Thornton, Judge.

Action by Pearl Petrovitzky against the Sargent Paint Company and another. From a judgment for the plaintiff against the named defendant only, such defendant appeals.

Affirmed.

Charles E. Henderson, for appellant.

Beckett & Beckett, for appellee.

OPINION

MCMAHAN, J.

This action was commenced by appellee against the appellant and Roy Perkins to recover damages for personal injuries caused by appellee being struck and run over by a motor truck driven by one Harold Hays, who was alleged to have been the servant of appellant and Perkins. There was a verdict in favor of appellee against appellant, and in favor of Perkins, upon which judgment was rendered. Appellant filed a motion for a new trial, for the reasons that the verdict of the jury is not sustained by sufficient evidence, is contrary to law, and that the court erred in giving, and in refusing to give, certain instructions. The error assigned is the overruling of the motion for a new trial.

This cause involves the question as to when a servant in the general employment of one person becomes, with regard to a particular transaction, the servant of another. Perkins owned the truck, kept it in repair, bought the oil and gasoline therefor, and employed Harold Hays to drive it. Hays was a chauffeur by occupation, and had been driving the truck three or four years prior to the time of the accident.

Appellant owned and operated a factory for making paint, also had a store where it sold paint at retail. About two years prior to the time of the accident appellant and Perkins entered into an oral arrangement, whereby Perkins was to furnish appellant a truck and driver for the purpose of delivering goods for appellant. Appellant was to, and did, pay Perkins $ 35 a week for the use of the truck and driver. The exact nature of this arrangement is not clearly disclosed by the evidence. Mr Perkins testified that he had two trucks, one of which he drove for the Stewart-Carey Glass Company, and the one which Harold Hays drove. When asked to state what arrangement he had with the appellant in connection with the delivery of its goods he said: "My arrangement with Mr. Sargent was to do the delivering for so much a week and furnish him a truck and driver. I hired the drivers, paid them and discharged them. I paid for the repairs on the truck, and for the gasoline and oil used in running it. Harold Hays drove the truck for the Sargent Paint Company. They directed him on his deliveries. The only directions I gave him was to report to the Paint Company and after that I exercised no authority over him at all unless I wanted him to do something. I gave him no directions about his paint orders."

Harold Hays testified that Perkins hired him and agreed to pay him $ 15 a week. Perkins told him that he had made arrangements with the appellant to furnish appellant with a truck and driver and deliver goods for them, for which he (Perkins) was to receive $ 35 a week. The witness was asked whether or not Mr. Perkins told him that he (Hays) would receive orders what to do, that they would consist of sale slips and that he (Hays) could route himself and deliver to the best advantage to take up the least time according to the sale slips, to which he answered: "No Sir, he did not tell me anything in regard to that because I was to learn that when I got there." He also testified that Perkins told him that the appellant would show him the process of the work; that, when he got there each morning, he found there were sale slips made out of goods to be delivered; that he and the shipping clerk placed the goods in the car to the best advantage in making deliveries so as not to cover the ground twice. In making the deliveries no one gave him any orders to go a certain way. He was left to his own discretion in routing himself. When he made a delivery he would return to the appellant's place of business and wait until other orders came in or until something was wanted from the warehouse, and that he went over to the warehouse for stock nearly every morning. Sale slips were made out for each delivery indicating to whom and where the delivery was to be made. When making c. o. d. deliveries he collected the money and turned the same over to appellant. He would know where to deliver the goods by the bill of sale, and would wait until the shipping clerk gave orders what to do. He obeyed these orders, and obeyed the orders of any one around the store, but did not obey orders of anybody except some one connected with the store. Sometimes he would haul things for the men there. He hauled a cabinet for one of the salesmen for his garage, and he hauled things for Mr. Sargent.

When asked what directions he received from Perkins when he first went to work with the paint company, and in testifying what Perkins said to him, he said: "He told me that they would show me the process of the work when I got to the Sargent Paint Company." He kept the truck at his home except in bad weather when he kept it at the garage; that he was required to be at appellant's store each working day of the week at seven o'clock in the morning and was required to deliver and haul anything he was asked to haul for the appellant. Sometimes at the request of Mr. Perkins he would drive the truck on Sundays and take people to picnics and different places, this being at times outside of which he was required to be at appellant's place of business. The name of appellant was painted on the truck.

The bookkeeper of appellant testified: "We had a contract with Perkins. He was to look after the delivering and see that our goods were delivered about the city for which we paid him $ 35 a week. Roy Perkins' name was on the payroll. Harold Hays' was not."

Lambert Mack, appellant's order clerk, testified that: "Perkins was hired to do our hauling. I would get my orders in rotation and hand them to Hays, and he would load and deliver them. I never told the direction in which he was to go or where he should go or how he should go. I handed him the orders and he delivered them. The orders were written, never gave any directions by word of mouth. The orders that were sent out by Hays were for goods we had sold and contracted to deliver. When the orders were gotten up I gave him a written slip. He would collect c. o. d. orders and bring in the money. When we had so many orders that I could not take care of them all with the truck, I would hire another wagon."

This is in substance all of the evidence throwing any light upon the nature of the agreement between the appellant and Perkins, and the method used in carrying it out and in carrying on the business of appellant in so far as the use of the truck and driver and the delivering of goods sold by appellant. Appellee was injured by reason of the negligence of Hays in driving the truck in question while delivering paint sold by appellant. The said arrangement between appellant and Perkins had been in existence about three years at the time of the accident, during all of which time Hays drove the truck, except for short periods when, for some reason not disclosed by the evidence, Perkins would send another driver to take his place.

Appellant in its brief says that all of the errors relied upon for a reversal can be determined by ascertaining whether Hays was the servant of appellant or of Perkins.

Appellant says that the question of what constitutes an independent contractor is ordinarily one of mixed law and fact, but that where the evidence is oral and is sufficient to establish the existence of some relation, and where it is uncontradicted and susceptible of but a single inference, the question of what relation is thereby shown to exist is one of law and that, under the evidence in this case Hays, as a matter of law, was the servant of Perkins and not of appellant. Appellee insists that the question as to whose servant Hays was, at the particular time he inflicted the injuries upon appellee, was, under the evidence, a question of fact for the jury, and not a question of law.

The rule that one who employs a servant to do his work is answerable to strangers for the negligent acts or omissions of the servant committed in the course of the service is elementary. But, however, clear as the rule may be, its application to the varied affairs of life is not always easy, as the facts which place a given case within or without the rule cannot always be ascertained to a certainty. When the attempt is made to impose upon the master the liability for the consequences of the servant's neglect, it sometimes becomes necessary to ascertain who was the master at the very time of the negligent act or omission. One may be in the general service of another and, nevertheless, with respect to particular work, may be transferred, with his own consent or acquiescence, to the service of a third person, so that he becomes the servant of that person, with all the legal consequences of the new relation. The true test in determining who the master is, in a case of this character, is not who actually did control the actions and movements of the servant in doing the work, but who had the right to control.

If appellant was not the owner of a truck and did not have any person in its employ who could do its hauling and delivering, it had the right to enter into an agreement with Perkins to furnish a truck and man to do this work. If in this case Perkins furnished the truck and driver to do appellant's work and placed the driver, Hays, under the control of appellant in the performance of that work Hays became pro hac vice the servant of appella...