Lindsey v. Loebel

Potter, J. Plaintiffs, as widow and son of Ernest Lindsey, deceased, made claim against defendants before the department of labor and industry for compensation for the death of Ernest Lindsey. The sole question in dispute is whether the accident arose out of and in the course of decedent’s employment. The deputy commissioner found defendants liable and awarded compensation. This finding was reversed on appeal by the department. The case was disposed of by the department on the theory decedent was employed by defendant Max Loebel as a delivery truck driver. The undisputed evidence is, “He was employed to sell cheese and deliver cheese on a route.” On the day Ernest Lindsey was injured he started out with defendant Loebel’s truck about.5:30 a. m. over his regular route, and after about 2:30 p. m. one Grant Bennett, a friend who had accompanied him, drove the truck and was driving it when the accident occurred in which decedent was injured. Decedent was, under the undisputed facts, something more than a truck driver. He was a salesman employed to sell and deliver cheese over a route. He was in the discharge of his duty as such salesman at the time the injury occurred; in furtherance of his employer’s business; doing a duty he was employed to perform. *244 There is no question but defendants would be liable had decedent himself been driving the truck. The sole defense rests upon the fact some one other than decedent was driving the truck at the time of the injury which resulted in his death. A similar question was before the court in Marchand v. Russell, 257 Mich. 96. This was an action for damages resulting from alleged negligence. After reviewing the authorities it was said: “We think the more satisfactory rule is to hold that the person permitted by the servant to operate the car in his presence is but an instrument employed by him, and that his acts are, in legal effect, the acts of the servant himself. ’ ’ Hoffman v. Roehl, 61 Mont. 290 (203 Pac. 349, 20 A. L. R. 189, 194); Thixton v. Palmer, 210 Ky. 838 (276 S. W. 971, 44 A. L. R. 1379); Geiss v. Twin City Taxicab Co., 120 Minn. 368 (139 N. W. 611, 45 L. R. A. [N. S.] 382); Grant v. Knepper, 245 N. Y. 158 (156 N. E. 650, 54 A. L. R. 845), and the cases collected in the annotations thereto in A. L. R. fully sustain this rule. The order of the department of labor and industry is reversed, and the cause remanded for disposition in accordance with this opinion. McDonald, C. J., and Fead, J., concurred with Potter, J.