Zajic v. Johnson
| Decision Date | 21 February 1934 |
| Docket Number | 28724 |
| Citation | 253 N.W. 77,126 Neb. 191 |
| Parties | JAMES ZAJIC, ADMINISTRATOR, APPELLANT, v. ELMER JOHNSON ET AL., APPELLEES |
| Court | Nebraska Supreme Court |
APPEAL from the district court for Douglas county: CHARLES LESLIE JUDGE. Affirmed.
AFFIRMED.
Syllabus by the Court.
1. Evidence examined, and held to sustain the determination of the trial court, made at the close of plaintiff's proof, that the Omaha Bee-News Publishing Company and the World-Herald Publishing Company, defendants each possessed the status of an independent contractor in the transaction complained of, and each was without liability for the damages in suit; further, the evidence justifies the dismissal of the cause as to these defendants then made.
2. Instruction of the trial court, stating in effect that, deceased and the driver of the automobile in which deceased was riding at the time of the collision being then engaged in a joint enterprise or undertaking, the negligence of the driver in the operation of the automobile, if any such negligence was proved, in view of the facts established by undisputed evidence, is imputable to deceased, is approved.
Appeal from District Court, Douglas County; Leslie, Judge.
Action by James Zajic, administrator of the estate of James F. Zajic, deceased, against Elmer Johnson and others. From an order overruling a motion for a new trial, plaintiff appeals.
Affirmed.
Crofoot, Fraser, Connolly & Stryker, for appellant.
Wear, Garrotto & Boland, Kennedy, Holland & DeLacy and Wells, Martin, Lane & Offutt, contra.
Heard before GOSS, C. J., GOOD, EBERLY, DAY and PAINE, JJ., and HASTINGS, District Judge.
This action was brought by the administrator of the estate of James F. Zajic to recover damages for the latter's death. This fatality was caused by the colliding of a Packard sedan, wherein deceased occupied a rear seat, with a truck owned by one defendant, of which another defendant was driver, and which truck was then transporting the property of the defendant publishing companies. At the close of plaintiff's evidence the trial court sustained the separate motions to dismiss of the defendants Omaha Bee-News Publishing Company and the World-Herald Publishing Company, for the reason that these defendants were independent contractors in the instant transaction. Thereafter further evidence was adduced and the cause was submitted to the trial jury who returned a verdict for Elmer Johnson and Chester A. Eager, the remaining defendants. From the order overruling his motion for a new trial the plaintiff appeals.
As to the first question, the facts disclosed by the evidence are not in serious dispute. The truck involved at the time of the accident was the property of the defendant Chester A. Eager. It was being driven by the defendant Johnson, who was then employed in that capacity by Eager, from whom he received his compensation. The route followed went from Omaha to Lincoln, to Nebraska City, and to Louisville, all in Nebraska. The truck was one of a number of trucks then owned and operated by Eager in the prosecution of a general trucking business, carried on under the trade-name of the Louisville Motor Transfer Company, with headquarters at Louisville, Nebraska. This business had been continuously carried on for a period of about 14 years. During this period Eager held himself out to the public as ready to engage in the transportation of goods for hire for any one who offered merchandise to be hauled.
The plan followed in carrying on the general business by this defendant was to keep one of his trucks hauling freight on a scheduled run between Omaha and Louisville. The other trucks owned by the defendant were employed in hauling from one town to another as the calls for service might require. It was a daily business of trucking for hire, in performance of which the trucks were owned by defendant Eager, who employed, paid, discharged, and controlled his drivers and other employees, as the exigencies of the traffic might require.
Up to six years prior to the accident in suit, the Sunday editions of the newspapers published by the defendant publishing companies had been delivered to their patrons in part by railway train service and in part by other means of transportation. The defendant Eager then entered into negotiations to secure this business. Some test runs were made and the results submitted to these publishing companies. Finally an oral agreement for the transportation of the Sunday editions of the Omaha Bee-News and the Omaha World-Herald was entered into whereby these papers, prepared in bundles, labeled, and weighed by the publishers at their respective places of business in Omaha, were delivered to the trucks of the Louisville Motor Transfer Company at Omaha on Saturday night or early Sunday morning, accompanied by lists showing the destination of each bundle of papers thus turned over. The employees of the defendant received these bundles, loaded the same in the trucks and thereafter cared for the same, and deposited each at the place directed. These trucks, exclusively in charge of the motor transfer company's operators and driven to definite places where delivery of papers was required, proceeded in accord with a definite time schedule agreed upon by the parties in interest. The routes followed from one scheduled stop to another were for the determination of the transfer company. It seems that, in the event of an accident to truck or cargo occurring, the fact was to be at once reported to the publishing companies. We infer that the selection of the particular truck for each trip on each route, as well as the employees to man the same, and the furnishing of necessary oil, grease, gasoline and repairs of the fleet of trucks thus engaged, was wholly performed by the defendant Eager. He hired and fired the men engaged. He settled all indebtedness incurred in the transaction, and gave all necessary directions to the employees concerned in, and apparently assumed full responsibility for the successful completion of, each of the runs made. We have searched the record and find no evidence of control over these movements of the transportation agency either reserved by the publishing companies in this oral understanding, which is controlling, or exercised by them pursuant to its terms. Considering all the evidence, we are impressed with the view that, as a matter of fact, the weekly delivery of these papers, though made pursuant to a special understanding and agreement, was but an incident of the general business carried on by the defendant, and essentially no different in its inherent qualities from that of which it formed a part.
This general business was the undertaking "for hire or reward, to transport the goods of such as choose to employ him from place to place" (10 C. J. 39)--that of a common carrier. State v. Union Stock Yards Co., 81 Neb. 67, 115 N.W. 627.
"Persons who engage in the business of draymen, carters, truckmen, wagoners, or public moving van companies for the transportation of goods and merchandise, and who hold themselves out as willing to serve all who apply and pay their charges, are common carriers in respect to the carriage of such goods and merchandise as they make a business of carrying, and it is immaterial what mode of transportation is employed, or that there is no regular tariff of charges." 10 C. J. 49.
Obviously the relation of a public common carrier with its patrons is not ordinarily that of "master and servant." It may be generally conceded "that a common carrier may * * * act as a private carrier, and it has been held that a common carrier may become a private carrier when, as a matter of accommodation or special engagement, it undertakes to carry something which it is not its business to carry." 10 C. J. 39. Plainly the facts in the instant case do not invoke the application of the principle last quoted.
The appellant relies upon Showers v. Lund, 123 Neb. 56, 242 N.W. 258, Cole v. Minnick, 123 Neb. 871, 244 N.W. 785, Standish v. Larsen-Merryweather Co., 124 Neb. 197, and Bowen v. Gradison Construction Co., 236 Ky. 270, 32 S.W.2d 1014. In none of these cases is the relation of a public common carrier to its patron considered; hence, the doctrine announced therein can have no application to the instant case.
However conceding arguendo that the status of the motor transfer company is that of a private carrier or contractor, still the facts outlined herein differentiate the instant case from those cited on this point by appellant. Support for this conclusion may be gained from the discussion which the opinions...
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