Standard Oil Co. v. Parkinson

• Decision Date: 03 April 1907
• Docket Number: 2,461.
• Citation: 152 F. 681
• Parties: STANDARD OIL CO. v. PARKINSON.
• Court: U.S. Court of Appeals — Eighth Circuit

152 F. 681

STANDARD OIL CO. v. PARKINSON.

No. 2,461.

United States Court of Appeals, Eighth Circuit.

April 3, 1907

(Syllabus by the Court.)

The test of one's liability for the negligent act or omission of his alleged servant is his right and power to command and control his imputed agent in the performance of the causal act or omission at the very instant of its performance or neglect.

A master is liable for damages caused by the negligence of his servant within the scope and in the course of his employment although he neither directs nor is aware of it.

One Perry was intrusted with the keys of the storage tanks of the Standard Oil Company at a town in Nebraska, drew oil and gasoline from them, hauled and delivered these articles to customers of the company in neighboring towns, sold them when he could at prices fixed by the company, collected the prices of the articles delivered and sold, and remitted their proceeds weekly to the company, which paid him monthly one cent a gallon of the articles thus delivered and sold. He used a wagon of the company and his own horses and selected his own routes and times to haul the oil and gasoline, and as he was driving across a railroad track, an engine collided with the wagon and a serious injury resulted.

Held there was substantial evidence that Perry was the agent of the company at the instant and in the act of driving upon the railroad crossing, so that the question whether he was an agent or an independent contractor was for the jury.

In Nebraska the legal presumption is, in an action under sections 2503, 2504, Comp. St. Neb. 1901, for damages for the death of a person by the wrongful act of another, that the widow and children of the deceased person were dependent upon him for support and maintenance, and that they sustained pecuniary injuries by his death.

The legal presumption of the dependence of the wife and minor children upon the husband and father during his lifetime for support is rebuttable, not conclusive, and evidence by a plaintiff in support of it before she knows whether or not the defendant will present evidence to overcome it is neither incompetent nor immaterial.

William D. McHugh (Alfred D. Eddy, on the brief), for plaintiff in error.

Ed. P. Smith (John J. Sullivan and C. J. Smyth, on the brief), for defendant in error.

Before SANBORN, HOOK, and ADAMS, Circuit Judges.

SANBORN Circuit Judge.

On October 27, 1904, J. D. Perry drove his team, attached to a wagon of the Standard Oil Company loaded with oil and gasoline, upon a crossing of the Chicago, Burlington & Quincy Railroad Company, where an engine of that corporation driven by John C. Parkinson collided with it. The gasoline and oil took fire and burned the engineer so that he died. Rosa Parkinson, his widow and the administratrix of his estate, brought this action against the oil company for causal negligence. She averred that Perry was one of the company's servants, that he negligently drove his team upon the crossing and thereby brought about the death of the engineer. The oil company denied these allegations, and the jury returned a verdict for the administratrix. At the close of the evidence the court denied the motion of the defendant to return a verdict in its favor, and this ruling is assigned as error, upon the ground that there was no substantial evidence in the case that Perry was the agent or employe of the oil company in the act of driving his team upon the railroad track at the time of the accident.

The test of one's liability for the act or omission of his alleged servant is his right and power to direct and control his imputed agent in the performance of the causal act or omission at the very instant of the act or neglect. There can be no recovery of a person for the act or omission of his alleged servant under the maxim, 'respondeat superior,' in the absence of the right and power in the former to command or direct the latter in the performance of the act or omission charged, because in such a case there is no superior to respond. Brady v. Chicago Great Western R. Co., 114 F. 100, 107, 52 C.C.A. 48, 55, 57 L.R.A. 712; Atwood v. Railway Co. (C.C.) 72 F. 447, 454, 455; Byrne v. Railroad Co., 9 C.C.A. 666, 61 F. 605, 608, 24 L.R.A. 693; Hilsdorf v. City of St. Louis, 45 Mo. 94, 98, 100 Am.Dec. 352; Town of Pawlet v. Rutland & W.R. Co., 28 Vt. 297, 300; Miller v. Railroad Co., 76 Iowa, 655, 659, 39 N.W. 188, 14 Am.St.Rep. 258; Wood, R.R. Sec. 388; Donovan v. Construction Syndicate (1893) 1 Q.B.Div. 629; Rourke v. Colliery Co., 2 C.P.Div. 205. But a master is liable for damages caused by the negligence of his agent or servant within the scope and in the course of his employment, although he neither directs nor is aware of his acts. Philadelphia & Reading R. Co. v. Derby, 14 How. 468, 486, 14 L.Ed. 502; Singer Mfg. Co. v. Rahn, 132 U.S. 518, 522, 10 Sup.Ct. 175, 33 L.Ed. 440. In the light of these rules of law, let us see whether or not there was any substantial evidence in this case that Perry was the agent of the oil company in the act of driving his team upon the track of the railroad company. There was testimony to the existence of these facts: The oil company had storage tanks at Aurora, in the state of Nebraska, whence its oil was hauled by Perry's team to its customers in neighboring towns. The company owned the wagon and Perry the horses. The company fixed the prices of the oil and gasoline. Perry took them from the storage tanks, hauled and delivered them to the customers of the company in neighboring towns, sold all that he could in lots of 50 gallons each to others, collected all the money for these deliveries and sales, remitted it to the company weekly, and once a month the company paid him one cent for each gallon so delivered and sold. He devoted the principal part of his time to this occupation. He was not engaged for any specific length of time, and he was free to abandon the work, and the oil company was at liberty to discharge him at any time. The company directed him to keep its customers in four towns supplied with oil and gasoline, but it did not direct him when or by what routes he should draw these articles to them. He went to the customers whenever they needed the oil or gasoline which he supplied. Some time after Perry entered upon his work the company directed him to deliver oil to its customers at another town, Phillips, and he did so. He was on his way to Phillips when the accident which caused this suit occurred. By means of the horses and wagon he kept the customers in the towns it specified supplied with oil and gasoline pursuant to its direction. But he determined when, how, and by what roads he would drive his team to each town and customer. Perry testified of the beginning and end of his occupation in this way:

'Anyway, about November, Mr. Fender came here and I talked over the matter with him and he decided to hire me, and so I went to work for them. * * *

'Q. When did you quit their employ? A. Along in the fall.

'Q. How did you come to quit at that time? A. How?

'Q. I mean did you quit voluntarily or did they discharge you? A. They discharged me.'

The witnesses divided upon the question whether or not the contract between the oil company and Perry was in writing. If it was, the written agreement was not in evidence, and the facts which have been recited are...