Waters v. Pioneer Fuel Co.

• Decision Date: 13 March 1893
• Citation: 55 N.W. 52,52 Minn. 474
• Parties: WATERS v PIONEER FUEL CO.
• Court: Minnesota Supreme Court

52 Minn. 474

55 N.W. 52

WATERSvPIONEER FUEL CO.

Supreme Court of Minnesota.

March 13, 1893.

(Syllabus by the Court.)

1. Held, under the evidence, as appearing upon the record, that an employe of the defendant, a fuel company, engaged in delivering coal for the company at a stipulated price per load, was a servant of the company, and not an independent contractor, merely.

2. And where such employe delivered a load of coal through an opening in a sidewalk, uncovered for the purpose, and, after the coal had been so delivered, replaced the cover over the opening so imperfectly and insecurely as to render the same dangerous to persons passing along the sidewalk, held, that the jury were justified in finding that it was part of the teamster's business to replace the cover, and that the submission of that question to the jury was not ground of exception by the defendant.

Appeal from municipal court of Minneapolis; Mahoney, Judge.

Action by John E. Waters against the Pioneer Fuel Company to recover for personal injuries sustained by falling through a coal hole in the sidewalk, the lid of which had been improperly replaced by an employe of defendant. Judgment for plaintiff. From an order refusing a new trial, defendant appeals. Affirmed.

Kitchel, Cohen & Shaw, for appellant.

John E. Waters and A. H. Noyes, for respondent.

VANDERBURGH, J.

The defendant's employe, engaged in hauling coal, delivered by its order a ton of coal to one of its customers in the city of Minneapolis. He delivered the coal through a hole in the sidewalk in front of the premises of the purchaser, into a vault or bin under the sidewalk, connected with the premises. After the coal was unloaded, he took out the chute through which it was delivered, and put the cover over the hole, but, as is alleged, failed to replace it properly; and the plaintiff, who soon after passed along, stepped upon it, and was precipitated into the hole, and injured. He brings this action against the defendant, and insists that it is a case where respondeat superior applies. The defendant, however, resists this claim on the ground that the person delivering the coal was not its servant, but an independent contractor.

The evidence of the nature of his employment, which is undisputed, is that he had applied to the defendant for work, and had worked for the fuel company about three months; had worked almost every day for them, delivering coal; and was paid 35 cents per ton for delivering it, and got his pay every week. He owned the team, and the running gear of the wagon. The defendant furnished him the wagon box. He was not sure of business every day, and could quit when he wanted to, though the fact that he was paid every Saturday night shows that the employment was continuous until suspended. He had not, however, quit, or been discharged, when this coal was delivered. When the order for this ton of coal came in, it was delivered to him to execute, and the amount, quality, and price specified. He loaded the coal, and took it to the specified place, got the money for it, and, after the coal was delivered, procured the receipt, acknowledging its delivery, and returned it, and the money, to the defendant. We think this evidence shows that the person who delivered the coal was in the service of the defendant, though the term of service was precarious; and we do not see that it is material that he was paid by the load, by the hour, or by the day for his work. He represented the master in all the details of the work enumerated, and, while he remained in defendant...