HE Wolfe Const. Co. v. Fersner

• Decision Date: 12 April 1932
• Docket Number: No. 3245.,3245.
• Citation: 58 F.2d 27
• Parties: H. E. WOLFE CONST. CO. v. FERSNER.
• Court: U.S. Court of Appeals — Fourth Circuit

58 F.2d 27 (1932)

H. E. WOLFE CONST. CO. v. FERSNER.

No. 3245.

Circuit Court of Appeals, Fourth Circuit.

April 12, 1932.

P. L. Felder and Robert Lide, both of Orangeburg, S. C. (Lide & Felder, of Orangeburg, S. C., and Merritt U. Hayden, of Detroit, Mich., on the brief), for appellant.

J. A. Berry and W. C. Wolfe, both of Orangeburg, S. C. (Berry & Berry, J. Leroy Dukes, and Wolfe & Wolfe, all of Orangeburg, S. C., on the brief), for appellee.

Before PARKER and SOPER, Circuit Judges, and HAYES, District Judge.

SOPER, Circuit Judge.

This action was brought by the administrator of Sallie Fersner against the H. E. Wolfe Construction Company to recover damages for her death. She was killed on July 29, 1930, while riding with her husband in a buggy on a public highway near Orangeburg, S. C., when the buggy was struck from behind by an automobile truck negligently driven by Jacob Hancock. The truck was owned by J. T. Gresham, Hancock's employer, and was being used at the time in the construction of a highway which the construction company was building under a contract with the state highway commission of South Carolina. There was a verdict and judgment for the plaintiff, from which the construction company has appealed.

Its contention is that the District Judge should have granted a motion offered by it for a directed verdict in its favor on the ground that Gresham was an independent subcontractor, solely responsible for his driver's negligence. Gresham owned a fleet of eight trucks and furnished them with drivers to the construction company to haul paving material from its warehouses near Orangeburg, to the point of paving on the highway, which, at the time of the accident, was ten miles distant. There was no written contract between Gresham and the construction company, but, under the arrangement between them, Gresham received an agreed price for each load of material which he moved. For this consideration, he provided the trucks and drivers, and kept the trucks in repair, and bought the necessary gasoline and oil. He paid the drivers' wages, and exercised the right to discharge them. But he did not do all the hauling of material, and no special part of this work was assigned to him. The construction company also owned a fleet of trucks which were used for hauling, side by side with those of Gresham, mingling with them in going to and fro between termini. At each end were stationed superintendents of the construction company, who directed and controlled the work of loading and unloading both fleets, and indicated when and where each truck was to go. Between the two points, the trucks in each fleet were under the control of their respective drivers, and the evidence does not show that the construction company actually exercised the right to direct how they should be driven; but the only reasonable inference is that the company had the right to control the driving of both sets of trucks, for the defendant's evidence includes the general statements that "the hauling which Gresham was doing was done under the supervision and direction of the superintendents of the Wolfe Construction Company," and that "Gresham and his men were required to obey the orders of the superintendents of the Construction Company in doing this hauling."

These facts present the question whether the driver of the truck which caused the death of Mrs. Fersner was acting at the time as the servant of the construction company, or whether, on the other hand, although engaged in hauling the company's material, he remained the servant of Gresham, his general employer. It is generally held that when a master, with power to hire and discharge a servant, lets him and a vehicle to another to do such hauling as the hirer may direct, the legal presumption, in the absence of an agreement to the contrary, is that the driver remains subject to the control of his general employer in the method of the performance of the work which the hirer gives him to do, and the hirer is not liable for the negligence of the servant in the performance of the work. Driscoll v. Towle, 181 Mass. 416, 63 N. E. 922; Lion Oil Refining Co. v. Lawrence (C. C. A.) 37 F.(2d) 256. But in this class of cases, as in all others in which the question of independent contractor is raised, the criterion is the power to control and direct the servants in the rendering of their service. The underlying principle is so clearly set out in the leading case of Standard Oil Co. v. Anderson, 212 U. S. 215, 221, 222, 29 S. Ct. 252, 254, 53 L....