Wells, Inc., v. Shoemake

• Decision Date: 17 February 1947
• Docket Number: 3451.
• Citation: 177 P.2d 451,64 Nev. 57
• Parties: WELLS, Inc., et al. v. SHOEMAKE et al.
• Court: Nevada Supreme Court

177 P.2d 451

64 Nev. 57

WELLS, Inc., et al. v. SHOEMAKE et al.

No. 3451.

Supreme Court of Nevada

February 17, 1947

Appeal from Eighth Judicial District Court, Clark County; George E Marshall, Judge.

Action by Flora Marie Shoemake and John Alley Shoemake, by Flora Marie Shoemake, his guardian ad litem, against Wells Inc. and William Long for the wrongful death of Kenneth C Shoemake and for personal and property damages suffered by plaintiff in motor vehicle collision. From a judgment for plaintiffs for $20,000 for wrongful death and judgment for Flora Marie Shoemake for $6,050 for personal injuries and property damage, and from an order denying defendant's motion for a new trial, the defendant appeals.

Affirmed.

Morse, Graves & Jones, of Las Vegas, for appellants.

V. Gray Gubler, of Las Vegas, for respondents.

EATHER Chief Justice.

This action was instituted by the respondents, Flora Marie Shoemake and John Alley Shoemake by Flora Marie Shoemake, his guardian Ad Litem, to recover damages for the death of Kenneth C. Shoemake, who was husband and father of the respective respondents and who, at the time of his death, was twenty-nine years of age. The death was alleged to have been caused by the negligence of the appellants.

The parties will be referred to as in the court below, and to better appreciate the contentions of both parties it is necessary that we briefly state the facts.

The accident in which the deceased sustained the injuries which resulted in his death happened near the City of Las Vegas, County of Clark, State of Nevada. On the morning of the 14th day of December, 1943, defendant, Wells Inc., was engaged in operating a fleet of trucks for the hauling of ore along and upon U.S. Highway 95, extending in a north-westerly direction from the City of Las Vegas, Nevada; On the said 14th day of December, 1943, William Long was employed by defendant, Wells Inc., as a truck driver; about 6:30 o'clock A.M. of said day defendant William Long, acting within the scope of his employment as a truck driver for the defendant Wells Inc., then and there drove and operated a truck controlled and operated by the defendant Wells Inc., along and upon U.S. Highway 95, ten miles, or thereabouts, in a north-westerly direction from Las Vegas, Nevada; that on the said 14th day of December, 1943, at about 6:30 o'clock A.M., the plaintiffs, Flora Marie Shoemake and her son John Alley Shoemake, were riding with her mother-in-law and her husband, Kenneth C. Shoemake, and were proceeding north and north-westerly from Las Vegas, Nevada, on Highway 95, at or about nine or ten miles from the City of Las Vegas, when the 1936 Chevrolet in which they were riding was involved in a collision with the truck driven by William Long, who was acting within the scope of his employment as a truck driver for the defendant, Wells, Inc.

As a result of the collision Kenneth C. Shoemake suffered a badly crushed chest and internal injuries and also suffered head injuries and a deep gash posterior to his left eye, together with great physical and mental shock and as a result of said injuries, Kenneth C. Shoemake died in Las Vegas, Nevada, December 14, 1943. Further as a result of the collision Flora Marie Shoemake was thrown violently from the Chevrolet automobile in which she was riding and suffered injuries, great shock to her nervous system and mental pain and suffering.

The plaintiff, Flora Marie Shoemake, and plaintiff John Alley Shoemake, are respectively the surviving wife and child of Kenneth C. Shoemake, deceased, and are the next-of-kin and only heirs-at-law of said Kenneth C. Shoemake, deceased.

The answer sets forth 'that the defendants were at all times mentioned in the complaint, and at the time of answering, agents and employees of the Defense Plant Corporation, a subsidiary of the Reconstruction Finance Corporation of the United States and as such were not suable as sole defendants in this action; that the parent Defense Plant Corporation was not joined as a party defendant and for that reason the Court had no jurisdiction of the action and for that same reason the two causes of action plead in the complaint did not state facts sufficient to constitute a cause of action.' These defenses were stricken upon demurrer and defendants answered, denying any negligence on their part, and the defense of contributory negligence having also been stricken upon the demurrer, defendants alleged that the accident in which the said Kenneth C. Shoemake sustained injuries from which he died, was caused solely by the negligence of said Kenneth C. Shoemake. Upon trial and submission of the case to the jury a verdict was returned against defendants in the sum of $20,000.00 on plaintiffs' first cause of action, and $6050.00 on plaintiffs' second cause of action. Judgment was therefore entered upon the verdict plus $465.05 costs.

Defendants' motion for a new trial was denied and this appeal is prosecuted from the judgment rendered upon the verdict of the jury and from the denial of defendants' motion for a new trial.

A number of errors are assigned within the general one, that the trial court erred in overruling defendants' motion for a new trial. The first two, which can be considered together, go to the action of the court in overruling defendants' general demurrer to the complaint, and in sustaining plaintiffs' demurrer to the answer.

(1) Defendants contend that their defense properly raised the question of suability of an instrumentality of the Federal Government.

We have given careful attention to the contention of defendants that their defenses raised the question of the suability of an instrumentality of the Federal Government, and in our opinion, it clearly appears from the authorities submitted by defendants that there is no question of the suability of Defense Plant Corporation, and no question of the suability of the defendants, either separately or jointly with Defense Plant Corporation, assuming an agency relationship to have existed, as alleged by defendants. We are convinced, however, there was, in fact, no agency relationship between the defendants, or either of them, and Defense Plant Corporation, as clearly appears from the testimony of J. W. Wells, President of Wells Inc., Folios 300-302 of the Transcript. Questions propounded by V. Gray Gubler, Attorney for Plaintiffs, were answered as follows:

'Q. Under the agreement by which you were operating on December 14, 1943 was it or was it not, Mr. Wells, agreed that Wells Inc., should be wholly responsible for the conduct of their drivers and the management of their drivers? A. Yes, I think that is so.

'Q. Assuming, of course, that there was actionable negligence or other legal liability for the conduct of those drivers. A. I don't know whether the contract specifically states that, but I think that is correct.

'Q. Who hired the defendant, William Long? A. He was hired originally in Reno by my brother, R. C. Wells. He worked there for a considerable time, perhaps a month, as a student, and before he was allowed to come to Luning where he took over one of these trucks.

'Q. And as an employee of the Company he was solely responsible to and solely under the supervision and management of the defendant, Wells Inc.? A. That is correct.

'Q. And was subject to the supervision of no other corporation, no other person other than his employer, Wells Inc.? A. That is correct.

This testimony, which was the only testimony on the point, except as further substantiated by other testimony of the witness J. W. Wells, clearly shows that defendant Wells Inc. was an independent contractor, managing independently the operation of the trucks in question, and that neither defendants, or either of them, were servants and/or agents of Defense Plant Corporation.

The law is established beyond question, that one for whom services are performed by an independent contractor is not liable for the negligence or other delict or tort of such independent contractor.

The rule is well stated, 35 Am.Jur. page 967, § 539: 'Power of Selection and Control as Determining Factor:--One of the tests of the existence of the relation of Master and servant as a basis for holding the master liable to third persons for the wrongful acts of the servant, is the power of the alleged master to select and discharge the servant. It has been held that where a person may be compelled by law to employ a particular individual in a given matter, he is not to be held liable for the delinquencies of the quasi employee. However, the relationship may exist, giving rise to liability for acts of another, notwithstanding the law restricts the employer's selection of employees to a limited class.'

The right of selection is the basis of the responsibility of a master or principal, for the act of his agent. No one can be held responsible, as a principal, who has not the right to choose the agent from whose act the injury flows.

'The relation between parties to which responsibility attaches to one, for the acts of negligence of the other, must be that of superior and subordinate, or, as it is generally expressed of master and servant, in which the latter is subject to the control of the former. The responsibility is placed where the power exists. Having power to control, the superior or master is bound to exercise it to the prevention of injuries to third parties, or he will be held liable, The responsibility attaches to the superior, upon the principal qui facit per alium facit per se. (Who acts through another acts for himself.) To determine the responsibility, therefore, it is necessary to ascertain whether the relation existing between the party charged and the party actually committing the injury, be in fact that of...