War Emergency Co-Op. Ass'n v. Widenhouse

• Decision Date: 14 August 1948
• Docket Number: No. 5749.,5749.
• Citation: 169 F.2d 403
• Parties: WAR EMERGENCY CO-OP. ASS'N v. WIDENHOUSE et al.
• Court: U.S. Court of Appeals — Fourth Circuit

169 F.2d 403 (1948)

WAR EMERGENCY CO-OP. ASS'N v. WIDENHOUSE et al.

No. 5749.

Circuit Court of Appeals Fourth Circuit.

August 14, 1948.

R. Hoyle Smathers, of Charlotte, N. C., and J. Bat Smathers, of Asheville, N. C. (Smathers, Smathers & Carpenter, of Charlotte, N. C., and Smathers & Meekins, of Asheville, N. C., on the brief), for appellant.

Luther T. Hartsell, Jr., and John Hugh Williams, both of Concord, N. C., for appellees.

Before PARKER and DOBIE, Circuit Judges, and WATKINS, District Judge.

PARKER, Circuit Judge.

This is an appeal in three actions for damages tried in the court below by the judge without a jury. The defendant, War Emergency Cooperative Association, is a motor carrier licensed by the Interstate Commerce Commission to transport gasoline in interstate commerce. Plaintiffs are persons whose property was damaged when one of the trucks operated under defendant's license exploded as a result of the negligence of the driver while operating it. One of the plaintiffs, A. C. Widenhouse, was the owner of the truck which exploded and the employer of the driver; and the explosion occurred while the truck was delivering gasoline to Widenhouse's filling station. There was no question as to the negligence involved or as to damages, but only as to defendant's responsibility. The District Judge held the defendant liable in all three cases and it has appealed. In A. C. Widenhouse's case its contention is that there is no liability on its part, in the other cases that it should have judgment over against Widenhouse, who was brought in as third party defendant, on the ground that in those cases its liability is secondary to his.

There is no dispute as to the facts. The truck which exploded was owned and operated by Widenhouse. He and a number of other truckers chartered the defendant War Emergency Cooperative Association, in order that they might obtain a license to operate their trucks in interstate commerce, and executed leases to that corporation of trucks which they themselves continued to operate. The defendant obtained the license in its name, and the trucks were operated thereunder with license and permit numbers issued to it. Defendant, however, had nothing to do with the operation of the trucks, except that it collected from customers the transportation charges which the trucks earned; and these it remitted to the truck owners after deducting a small percentage (5% or less) to cover insurance and other expenses. Cargo, property damage and public liability insurance was taken out on the trucks and their cargoes in the name of defendant and the premiums were deducted from the remittances made to the truck owners.

Widenhouse was operating a number of trucks under the above arrangement, among them the truck which exploded and caused the damage complained of in the several suits. The driver of this truck was employed and paid by Widenhouse, who had complete control over what he did and gave orders and directions not only as to what duties he was to perform but also as to how he was to perform them. At the time of the explosion, he was engaged in hauling gasoline which Widenhouse had directed him to haul with explicit directions as to where he was to get the gasoline, where he was to spend the night, and in what order he was to make deliveries. This business had come to Widenhouse, not to defendant; and defendant did not know that Widenhouse had received it. The lease between Widenhouse and defendant provided that the latter should engage and use qualified employees in operating the trucking equipment and should "direct, control and manage the use thereof as if the title to same were vested in it"; but no one paid any attention to this provision, at least so far as the truck here involved is concerned; and defendant did not know whom Widenhouse had employed as driver. Widenhouse testified before the state compensation commission that the driver, who was killed in the explosion, was his employee, and compensation was awarded on that basis.

Some question arises as to whether Widenhouse may properly be described as an independent contractor, in view of the fact that the business in which he was engaged was his own business and defendant was little more than an agent for him and the truckers associated with him; but, whatever view be taken of this, there can be no question that the driver of the truck was the employee of Widenhouse, working for him at the time, and not the employee of defendant. We think, however, that the true position of Widenhouse was that of independent contractor. The defendant was a real corporation holding the license under which interstate transportation was conducted, collecting the charges for this transportation, effecting cargo and other insurance and keeping the records and handling the funds which these matters necessitated. Widenhouse and the other truckers did the hauling involved in this transportation under contract with the defendant, furnishing the necessary trucks and drivers and supervising their operation. Widenhouse was not an employee of defendant, and in operating the trucks neither he nor his drivers were subject to the defendant's directions. The rule applicable is well stated by Mr. Justice Barnhill in Hayes v. Board of Trustees of Elon College, 224 N.C. 11, 29 S.E.2d 137, 140, as follows:

"When one exercising an independent employment contracts to do a piece of work according to his own judgment and methods, and without being subject to his employer except as to the result of the work, and who has the right to employ and direct the action of the workmen, independently of such employer and freed from any superior authority in him to say how the specified work shall be done or what laborers shall do as it progresses, he is clearly an independent contractor. The vital test is to be found in the fact that the employer has or has not retained the right of control or superintendence over the contractor or employee as to details."

See also Brown v. L. H. Bottoms Truck Lines, 227 N.C. 299, 42 S.E.2d 71; Wood v. Miller, 226 N.C. 567, 39 S.E.2d 608; Beach v. McLean, 219 N.C. 521, 14 S.E.2d 515, 518; Bryson v. Gloucester Lumber Co., 204 N.C. 664, 169 S.E. 276; H. E. Wolfe Const. Co. v. Fersner, 4 Cir., 58 F.2d 27; Malisfski v. Indemnity Ins. Co. of North America, 4 Cir., 135 F.2d 910, 912; Venuto v. Robinson, 3 Cir., 118 F.2d 679; Hodges v. Johnson, D.C. 52 F.Supp. 488. As said by this Court in Malisfski v. Indemnity Ins. Co. of North America, supra:

"We find that liability for the acts of the driver of a car or truck, who is employed by the owner but is serving a hirer at the time, has been the subject of many and sometimes conflicting decisions. See annotation 42 A.L.R. 1416 et seq. and cases there cited. The rule to be deduced from these is the rule ordinarily applied in determining whether a servant is to be deemed the servant of him for whom work is done or of an independent contractor, i.e. he is the servant of him who has the right to control not merely results but the progress and details of the work and the manner in which it is done. If the driver is...