Whalen v. Zinn

• Citation: 96 P.2d 434,60 Idaho 722
• Decision Date: 22 November 1939
• Docket Number: 6689
• Parties: L. L. WHALEN, Appellant, v. JOHN ZINN, Respondent
• Court: United States State Supreme Court of Idaho

96 P.2d 434

60 Idaho 722

L. L. WHALEN, Appellant, v. JOHN ZINN, Respondent

No. 6689

Supreme Court of Idaho

November 22, 1939

EVIDENCE-BURDEN OF PROOF-PRINCIPAL AND AGENT-MASTER AND SERVANT.

1. Where evidence as to who employed person whose negligence caused injuries sued for is undisputed, question whether relation of master and servant existed between such person and defendant is one of law.

2. In personal injury suit, predicated on negligence of third person's employee while acting as defendant's agent burden was on plaintiff to establish such agency.

3. The relation of "master and servant" exists whenever employer retains right to direct manner in which business shall be done, as well as result to be accomplished, by employee.

4. A wholesaler's employee, to whom one purchasing pipe from retailer gave order therefor, as directed by retailer's salesman, acted as wholesaler's, not retailer's employee in cutting and threading pipe to meet buyer's requirements, so that retailer was not liable for injuries to buyer as result of pipe rolling off bench onto his feet when released from vise by such employee, in absence of evidence that retailer had or sought to exercise any authority over employee or wholesaler's shop, tools or machinery.

The foregoing syllabus is by West Publishing Company, that following is by author of opinion.

I. Where the evidence as to employment is undisputed the question of whether the relation of master and servant existed is one of law.

II. In an action for personal injury predicated on alleged negligence of an agent of defendant, the burden of proof is on plaintiff to establish that the relation of principal and agent existed.

III. The relation of master and servant exists whenever the employer retains the right to direct the manner in which the business shall be done, as well as the result to be accomplished.

APPEAL from the District Court of the Tenth Judicial District, for Nez Perce County. Hon. Miles S. Johnson, Judge.

Action for damage for personal injury. Judgment for defendant. Affirmed.

Judgment affirmed. Costs awarded to respondent.

Butler & Madden, for Appellant.

The relation of master and servant may arise by implication as well as expressly, and one who knowingly and without objection receives the benefit of labor or holds out to the people one as engaged in his service, is liable as a master for the acts of the latter as his servant, even though the servant was, at the time of negligence complained of, in the general employment of another. (39 C. J. 1270; Haluptzok v. Great Northern Ry. Co., 55 Minn. 446, 57 N.W. 144, 26 L. R. A. 739; Union Depot & Ry. Co. v. Londoner, 50 Colo. 22, 114 P. 316, 33 L. R. A., N. S., 433; Gates v Daley, 54 Cal.App. 654, 202 P. 467.)

Durham & Hyatt, for Respondent.

Appellant having predicated his case upon the doctrine of respondeat superior had to prove the existence of an actual relationship of master and servant between respondent and the person whose neglect caused appellant's injury, which he failed to do. (Axtell v. Northern P. Ry. Co., 9 Idaho 392, 74 P. 1075; Nalli v. Peters, 213 A.D. 735, 211 N.Y.S. 411; West Texas Produce Co. v. Pate, (Tex. Civ. App.) 64 S.W.2d 381.)

The facts being undisputed, the question of whether or not the relationship of master and servant existed was one of law for determination by the trial court. (Branham v. International Supply Co., 166 Okla. 273, 27 P.2d 354, 355.)

MORGAN, J. Ailshie, C. J., and Budge, Givens and Holden, JJ., concur.

OPINION

MORGAN, J.

March 8, 1937, respondent was engaged in conducting a retail plumbing, heating and sheet metal business in Lewiston. Adjoining his store, and separated from it by a partition wall, was a wholesale plumbing store conducted by Charles Hahn. A part of the basement of the building was occupied by respondent and another part was used by Hahn as a storeroom and work shop. Across the alley from the building Hahn maintained a stock of water pipe. On the date above mentioned appellant called at respondent's store and ordered from one of his salesmen a three-inch iron pipe, nineteen feet six and a quarter inches long, to be threaded at both ends. Respondent did not carry three-inch pipe and it was his custom, when he had an order for goods which could not be filled from his stock, to procure it from Hahn's wholesale store. His salesman prepared the order for the pipe and passed it through a window in the partition to an employee of Hahn. He also gave an order to appellant and told him "to give it to one of the boys in the back." Appellant took the order and gave it to an employee of Hahn, named Fite, near the entrance at the back of respondent's store. At that time he did not know who employed Fite. It was about the noon hour and Fite told appellant he was alone and the pipe was too heavy for one man to handle, but if appellant would help him they would get it out. Together they got the pipe from Hahn's stock and carried it across the alley to his work shop in...