Burns v. Michigan Paint Co.

Carpenter, J. (after stating the facts). If the facts were as testified to by Boyseau and defendant’s manager, Boyseau was not the servant of defendant, but was an independent contractor, for whose negligence defendant was not responsible. De Forrest v. Wright, 2 Mich. 368; Riedel v. Moran, Fitzsimons Co., 103 Mich. 262; Wright v. Manufacturing Co., 124 Mich. 91 (50 L. R. A. 495); Lenderink v. Village of Rockford, 135 Mich. 531; Joslin v. Grand Rapids Ice Co., 50 Mich. 516. We are of the opinion that a verdict should have been directed in defendant’s favor upon the ground that there was no evidence from which the jury could infer that Boyseau was defendant’s servant. The burden rested upon plaintiff to prove the existence oí the relationship of master and servant between defendant and Boyseau. The only evidence offered by her tending to prove that fact was the sign on Boyseau’s wagon and his declaration that he was working for the defendant. In the absence of any explanation, this circumstance and this statement might have warranted the inference that the relation of master and servant existed. That circumstance and statement are, however, entirely consistent with the relation of independent contractor testified to by Boyseau and defendant’s manager. In other words, there is no conflict between the testimony upon which plaintiff relies as proof of liability, and the testimony which we are bound to hold establishes nonliability. It may be said that the circumstance and admission of Boyseau cast upon defendant a duty of explanation. This duty defendant fully performed. The case does not differ in any legal sense from the many cases in which this court has held that the party upon whom rests the burden of proof is entitled [616] to recover because he has established his case by undisputed testimony. The trial court should have directed a verdict in defendant’s favor. Judgment reversed, and a new trial ordered. Grant, 0. J., and Blair, Montgomery, and Mc-Alvay, JJ., concurred.