Leonard v. Tatum & Dalton Transfer Co.

Sea well, J. A person, natural or corporate, may lend or let a servant to another in such a way as to be relieved from liability arising out of injury to another through the negligence of the servant. But to bring this about, the control of the original employer over the acts of the employee must be so completely surrendered as to virtually suspend, temporarily, at least, any responsibility which might reasonably be associated with control. We do not find such a situation to exist in the arrangement between appellant and Bryant Electric Company. The words employed in the contract are those of hire; but Tatum & Dalton Transfer Company not only hired Jones originally, but they seem to have paid him regularly during his service, during which he was in charge of the truck continuously. It is significant that as a part of the contract Bryant Electric Company agreed to furnish gas and oil and load the logs. This looks more like a hauling contract than the simple hiring of a truck and man, when these things would not be a matter of obligation to the owner of the hired truck or of understanding with him, but the concern only of the hirer. A person may hire a truck to haul his poles, if he please, but if that is the real nature of the transaction he doesn’t need to agree with the owner to furnish the gas and load the poles. The contract is susceptible to the construction that what the Tatum & Dalton Company really undertook to furnish was service and that this, not the facilities for its accomplishment, was put under control of the Bryant Electric Company, and only so far as might be necessary to accomplish the purpose of the contract. McNamara v. Leipzig, 227 N. Y., 291, 125 N. E., 244; Berry, Law on Automobiles, Vol. 4, p. 587; Long v. Eastern Paving Co., 295 Pa., 163, 145 Atl., 71. “Where a truck owner contracted with a highway contractor to haul gravel at a fixed price, based on yardage and mileage, and the highway contractor had no control over the operation of the truck except to fill it, while the county employed an inspector to direct the unloading, the truck owner was found to be an independent contractor.” Burns v. Eno, Iowa, 881, 240 N. W., 209 (1932). Berry, Law on Automobiles, supra. *672 “A truck owner was an independent contractor, ratber than an employee, where he was engaged to haul asphalt at an hourly rate, subject only to orders as to the asphalt to be hauled and the place of unloading.” Long v. Eastern Paving Co., supra. The limited control which the Electric Company exercised over Jones is apparent from the testimony of both Bryant and his superintendent, Burgess, to whom he referred for enlightenment on this point. Burgess testified: “I did not at any time direct which route of travel Mr. Jones was to take other than the written instructions set out in the working sheet. I did not direct how many poles he should haul at a load. I did not direct how many hours he should work a day. I did not direct him to work at night. I did not tell Mr. Jones what time he should report for duty in the morning nor what time he should quit in the evening. I did not require Mr. Jones to report at the office at any time as to how many poles he had delivered on a given date or where he had delivered them. ... I did not hire Mr. Jones. I did not have the right to fire him.” While the factual situations may at points vary, the case seems to fall substantially under the rule applied in Wagner v. Motor Truck Renting Corp., 234 N. Y., 31, 136 N. E., 229 (1922), as stated in Berry on Automobiles, at page 787: “Where an owner of auto trucks hires them out at a per diem compensation, furnishing driver, oil, gasoline and accessories, and the driver is under the control of the owner during the entire period of hire, while the bailee cannot discharge the driver, and has no authority over him except to direct the place to which he shall drive, the owner is liable for an injury caused to a third person by the negligent act of the driver occurring during the period of hire, if the bailee has not interfered with the operation of the truck.” In substantial agreement will be found Matlack v. Chalfant, 69 Pa. Super. Ct., 49 (1917); Spellacy v. Hagerty Motor Trucking Co., Inc., 182 N. Y. Supp., 355; Norwegian News Co. v. Simkovitch, 182 N. Y. Supp., 595; Berry on Automobiles, Vol. 4, pp. 786-787. Upon this evidence we are unable to say, as a matter of law, that the relation of master and servant did not exist between the appealing defendant and Jones, the driver of the truck, at the time of plaintiff’s injury, or that the jury were not warranted in finding that it did exist. In one aspect of the evidence relating to the contract, the case might, as contended by the defendants, fall within the holdings of the court in Shapiro, Admr., v. Winston-Salem, 212 N. C., 751, 194 S. E., 479, and similar cases cited in defendants’ brief. But the .evidence relating to this contract is contradictory, or, at least, capable of another construction favorable to the plaintiff. Jeffrey v. Mfg. Co., 197 N. C., 724, 150 S. E., 503; Norwegian News Co. v. Simkovitch, supra; McNamara v. Leipzig, supra; Braxton v. Mendelsome, 233 N. Y., 122, 135 N. E., *673 198. See 42 A. L. R., 1421. In this situation the matter was for the jury, under proper instructions by the court, and defendants’ motion for judgment as of nonsuit on this ground was properly refused. Dickerson v. Reynolds, 205 N. C., 770, 172 S. E., 370. Upon the question of negligence on the part of Jones, and contributory negligence on the part of plaintiff, we could not take the case away from the jury without running into serious difficulty with rules we have promulgated in like eases. There is sufficient evidence to sustain a verdict finding negligence. Fox v. Army Store, 215 N. C., 187, 1 S. E. (2d), 550; Reid v. Coach Co., 215 N. C., 469, 2 S. E. (2d), 578; Newbern v. Leary, 215 N. C., 134, 1 S. E. (2d), 384; Gates v. Max, 125 N. C., 139, 34 S. E., 266; Willis v. R. R., 122 N. C., 905, 908, 29 S. E., 941. It is not necessary to pass upon the question whether the evidence tends to show that the truck was inadequately equipped with lights when put into service upon the highway by appellant. In the trial of the case, we find No error.