Skvarce v. Sales Necessities, Inc.

Butzel, J. Prank Skvarce, plaintiff, was employed by the Evening News Association, Inc., as “jumper” on an auto truck used by the latter in the distribution of newspapers. On May 29, 1933, he sustained personal injuries in a collision between the delivery truck, driven by a fellow employee, Charles Kulow, and an automobile owned by defendant, a Michigan corporation, and operated by the latter’s employee. Although the collision occurred through defendant’s negligence, plaintiff’s coemployee, Kulow, was guilty of contributory negligence. Plaintiff, however, was guilty of no negligence, unless that of his coemployee, or fellow-servant, is imputable to him. Under the stipulation of facts, it was- agreed that Kulow had complete charge of the operation of the delivery truck in question, his duties consisting of driving it from the plant of the employer to each and every stop assigned in his district, and returning it to the garage upon the completion of the route. It was plaintiff’s duty to ride upon the running board *542 of the truck, and, as it reached the designated stops on the route assigned to the driver, to jump from the side of the truck with the required number of newspapers for that particular stop, and deliver them. He then returned to the side of the truck, where he counted out the papers for the next stop while standing on the running board, which was specially constructed to permit its use for that particular purpose. While plaintiff was engaged in this operation, the truck remained in motion, under the complete guidance and control of Kulow. Plaintiff had no control whatsoever over the handling of the truck from the time it left the employer’s establishment until it returned; nor did he have any authority to direct the manner in which the truck should be driven, all of these matters being left to the discretion of Kulow. It was further conceded that in the interest of their common employer both plaintiff and Kulow attempted to increase the number of sales of the Detroit News, and that upon some occasions plaintiff was allowed- to make collections for the driver. The wages earned by plaintiff, however, were fixed and set by the employer, and his weekly wage was in no way dependent upon the number of papers sold upon the route, although Kulow re'ceived a guaranteed sum, plus a commission varying with the amount or number of sales. The employer owned the truck, maintained it, and paid all expenses for its use and upkeep. Defendant disclaims liability on the ground that the contributory negligence of Kulow was imputable to plaintiff, claiming that plaintiff and Kulow were fellow-servants and also joint adventurers engaged in a common enterprise, in which each had an interest. There is no merit to either of these theories. The case is ruled by McKernan v. Railway Co., 138 *543 Mich. 519 (68 L. R. A. 347), where, under a somewhat similar set of circumstances, we held that the contributory negligence of the driver of a fire engine was not imputable to the engineer who, in the performance of his duty, was riding on the rear end of the engine when it collided with a street car. This case has been cited with approval in City of Grand Rapids v. Crocker, 219 Mich. 178. See, also, Rogers v. Weber, 235 Mich. 180, and notes in 8 L. R. A. (N. S.) 631. The agreed facts show that there was no joint enterprise. Judgment for plaintiff is affirmed, with costs. Nelson Sharpe, C. J., and Potter, North, Peal, Wiest, Bushnell, and Edward M. Sharpe, JJ., concurred.