Luckie v. Diamond Coal Co.

Defendant appeals from an order granting a new trial after a verdict in its favor.

The action is for the recovery of damages for personal injuries sustained in an automobile accident, alleged to have resulted from the negligence of defendant’s servants. Whether the persons whose negligence caused the accident were the servants of defendant or of one whom defendant claims was an independent contractor, is one of the principal questions presented.

[1] The order granting the new trial is as follows: “The motion of plaintiff for a new trial herein is hereby granted, upon the grounds specified in the notice of intention filed herein, except upon the grounds of insufficiency of evidence, as to which grounds said motion is denied.” The language of the order eliminates from consideration here the question of the sufficiency or insufficiency of the evidence to justify the verdict. (Kauffman v. Maier, 94 Cal. 270 , [ 18 L. R. A. 124 , 29 Pac. 481 ]; Siemsen v. Oakland etc. Ry. Co., 134 Cal. 494 , [ 66 Pac. 672 ]; Higgins v. Los Angeles Gas etc. Co., 159 Cal. 651 , [ 34 L. R. A. (N. S.) 717 , 115 Pac. 313 ].) Though respondent, had he elected to do so, could have presented to this court any good reason, disclosed by the record, why there should be an affirmance of the order appealed from, other than as to the sufficiency of the evidence, he has chosen to limit his attempted vindi

On the evening of December 16, 1914, more than a half hour -after sunset, in the city of Los Angeles, an automobile, in which plaintiff was riding as a passenger, collided with a heavy auto truck, known as a Gramm truck, on which was the sign “Diamond Coal Company.” The truck was in charge of one Terry, as driver, assisted by one Cunningham, as helper. It was standing on Sunset Boulevard, near the corner of that thoroughfare and Alvarado Street. Upon approaching the corner, Terry and Cunningham discovered that the light, known in common parlance as the “tail light,” had gone out. It was a stormy, rainy night. Failing to light a match in the blustering wind, Terry secured an ordinary hand lantern which was regularly carried on the truck, took it to a near-by garage, lit it, and hurried back. As he approached the truck with the lighted lantern the automobile in which plaintiff was being carried as a passenger, traveling on Sunset Boulevard in the same direction that the truck had been going, collided with the rear end of the truck, resulting in the injuries to plaintiff.

At the time of the accident the truck was in the possession and control of one Foulks, under á written lease from defendant, or conditional sale contract, bearing date June 20, 1914. Contemporaneously with the execution of this lease, defendant and Foulks had entered into another written agreement, hereinafter referred to as the “contract of employment,” wherein defendant is referred to as the first party and Foulks as the second party, and which, so far as is necessary to an understanding of the questions here presented, after reciting that defendant is desirous of securing

At the same time that defendant and Foulks entered iiito their written contract of employment, they executed their lease or conditional sale contract whereby defendant leased the Gramm truck to Foulks. This agreement, which was also in writing, declares that Foulks agrees to pay defendant, as rental, a certain sum for the Gramm truck, in equal amounts of $125 per month on the twentieth day-of each month to and including April 20, 1916, and a further sum, in certain monthly installments, for' the Gar-

At or about the time when the written agreements were executed the metallic plate upon which was inscribed the license number for the Garford truck was transferred to the Gramm truck and remained fastened thereto up to and including the time of the accident. This, presumably, was done or caused to be done by defendant in conformity with che requirements of section 8 of the state Motor Vehicle Act of 1913 (Stats. 1913, p. 643).

Defendant’s sole right to the Gramm truck was by virtue of a lease to it under a written conditional sale contract with one Colyear, by whom the truck was owned in the first instance, and who had executed to defendant a conditional sale contract similar, mutatis mutandis, to that which defendant gave to Foulks.

Foulks had an independent calling. He was in the transfer and delivery business. In that business he used auto trucks. He testified that, at the time of the accident, and in connection with his business, he was making deliveries for persons other than defendant. He hired the driver Terry and the helper Cunningham. He kept the Gramm truck on his brother-in-law’s premises when it was not in use. Though defendant insured the truck, Foulks paid the

The court, of its own motion, after giving correct definitions of the terms “servant” and “independent contractor,” and stating that if Foulks was an independent contractor and Terry and Cunningham were his servants and not defendant’s, plaintiff could not recover, instructed the jury that if the written agreements were signed and delivered by the parties thereto, the law presumes that they were delivered on the day they bear date, to wit, June 20, 1914, that they are genuine and not sham, and were in force prior to and at the time of the accident; and that these presumptions, while satisfactory if uncontroverted, are not conclusive. The court further instructed the jury that if they found that these written agreements were genuine and in force at the time of the accident, and that, in carrying them out, Foulks selected and hired the men who were in charge of the truck at the time of the accident, fixed their duties and had sole control over the details of their work, and that, at that time, they were performing some duty for Foulks, then the plaintiff would not be entitled to recover. Also that if the jury found that, under and by virtue of the contract relations between defendant and Foulks at the time of the accident, the latter was in the employ of the defendant for the purpose of using the truck in making deliveries for defendant, at such times and to such places as it should direct, and that he had the right to determine and control the manner or method and details of the operation of the truck in making such deliveries—being responsible to the defendant only for the making of deliveries at the time and places designated by it, but not. for the method of making the same—and that Foulks had the right to operate the truck either by himself or, at his election, through some other person whom he might select and employ for that purpose, and that at the time of the accident Terry had been so selected and employed by him, and was then operating the truck under his direction and control, as to the manner of its operation, then Foulks was an inde

Plaintiff requested, but the court refused, an instruction to the effect that the only right which the defendant acquired under the contract of employment between itself and Foulks was that of an employer of Foulks and the Gramm truck; that the duty of carrying a red light on the rear of a motor vehicle is imposed as a condition of the “license or privilege” of operating such vehicle upon the public highways of the state; and that responsibility for its neglect cannot be avoided by authorizing another person than the licensee to operate it. The court likewise refused an instruction, requested by plaintiff, instructing the jury, as a'matter of law, that the relation created between defendant and Foulks by the written contract of employment was that of master and servant and not that of contractee and independent contractor. Respondent claims that in refusing to give these requested instructions, the court committed error.

For the reasons stated at the beginning of this opinion, the order granting the new trial must be reversed unless at least one of the grounds expressly assigned in this court by respondent for its affirmance is tenable.

To support his claim that the court erred in refusing the requested instructions and in giving those which it gave of its own motion, respondent contended in the lower court, as he does here: 1. That because the truck was registered under the state Motor Vehicle Act in defendant’s name, as owner and licensee, it is liable, even if Foulks were an independent contractor; 2. That Foulks was a servant merely and not an independent contractor; and 3. That the court erroneously left it to the jury to construe the documents and determine therefrom whether Foulks was a servant or an independent contractor.

To maintain his contention that, because the license on the Gramm truck was issued in appellant’s name, presumably upon its application therefor, the latter is liable, regardless of. whether Foulks was appellant’s servant or an independent contractor, respondent claims that where the public

Foulks was in possession of the truck under a conditional sale contract between. himself and defendant, just as defendant, in its turn, under a similar contract with Colyear, had the right of possession as between itself and Colyear. We shall assume, however, that defendant, and not Foulks, was the “owner” of the truck within the meaning of the Motor Vehicle Act (section 1 of the act, Stats. 1913, p. 640); also that, as such owner, it was obliged to, as it in fact did, apply for and receive a license (section 3 of the act, Stats. 1913, p. 641); and that it was defendant who caused*' the license plate to be. affixed to the Gramm truck. It is provided by the Motor Vehicle Act that “Every motor vehicle . . . while in use shall carry during the period from a half hour after sunset to a half hour before sunrise, ... at the rear ... a lighted lamp exhibiting one red light” (section 13 of the act, Stats. 1913, p. 645). The act, however, does not impose this duty upon the owner and licensee regardless of whether he or someone else be in control of the vehicle. It is this that differentiates this case from those relied upon by respondent. The language of the act, is: “No person shall allow a motor vehicle owned by him or under his control to be operated ... in violation of the provisions of this act.” (Section 19 of the act, Stats. 1913, p. 646. The italics are ours. ) [2] We think it evident that, by the use of the alternative “owned by him or under his control,” the legislature intended to impose the duty of complying with the requirements of the act upon the owner when, and only when, he is in control of

[4] Both of respondent’s remaining points, assigned by him as reasons for the affirmance of the order, appear to be grounded upon the assumption that the nature of the relation between defendant and Foulks at the time of the accident must be determined solely from the written agreements, particularly the written contract of employment. We think this an erroneous assumption. We think that the nature of Foulk’s relation to defendant at the time of the accident, whether that of an independent contractor or servant, must be determined not alone from the terms of the written contract of employment, but from the subsequent conduct of each, known to and acquiesced in by the other.

We are not interested in the contracts between defendant and Foulks, or the'right of either to enforce the same, save in so far as such contracts may afford evidence as to the nature of the true relation between them at the very time of the accident. For here the vital question is: What, at the time of the accident, was the actual relation between defendant and Foulks? Was their relation, at that time,

We do not think that the relation of master and servant, and none other, is conclusively established by the written contract of employment. But even if it were, that would not prevent the parties from changing that contractual. relation and establishing another. Where the parties to a written contract of employment, by mutual consent inferred from their subsequent conduct, have modified their contract and have acted upon it as thus modified, it is valid, in the modified form, to the extent and during the period it was so acted upon and carried out. As between a third party and either party to the contract, - such change or modification unquestionably could be shown by parol. [5] In an action between a party to a contract and a third party, the rule that parol evidence cannot be received to contradict or vary a written contract does not apply, as the estoppel on which the rule rests must be mutual, and, since the third person is not bound by the contract as written, neither is his adversary in the action. Strangers to the contract are at liberty to show that the written instrument does not disclose the full or true character of the relation between the contracting parties. And if a stranger to the contract be thus at liberty, when contending with a party to the contract, the latter must be equally free to show the true relation between himself and the one with whom he

[7] The accepted doctrine is that, where the essential object of the employment is the performance of work, the relation of master and servant does not exist unless , the employer retains the right to direct the mode and manner in which the job shall be done; or, in other words, not only what shall be done, but how it shall be done. (Labatt on Master and Servant, see. 64; Western Indemnity Co. v. Pillsbury, 172 Cal. 807 , [ 159 Pac. 721 ].) “The chief consideration which determines one to be an independent contractor is the fact that the employer has no right of control as to the mode of doing the work contracted for.” (Green v. Soule, 145 Cal. 96 , 99, [ 78 Pac. 337 , 339].) He is deemed to be the master who has the supreme choice, control, and direction of the servant, and whose will the servant represents, not merely in the ultimate results of the work, but in all the details. The legal test for the determination of the question is stated by Thompson as follows: “An ihdependent contractor, within the meaning of this rule, is one who renders service in the course óf an occupation, representing the will of his employer only as to the result of; his work, and not as to the means by which it is accomplished. The contractor must answer for his own wrongs and the wrongs committed in the course of the work by his ¡servants. ’’ (1 Thompson on Negligence, sees. 621, 622.)

Foulks exercised an independent occupation. He was, to use his own words, in the transfer and delivery business. There was evidence that defendant did not exercise, i or assume the right to exercise, any authoritative control oyer Foulks as to how his truck should haul the loads. Foulks determined what route the deliveries should take. Terry and Cunningham were his servants. Defendant exercised

Respondent argues that Foulks was a servant and not an independent contractor because: (a) Under the lease contract or conditional sale agreement between- Foulks and defendant, the latter had the right at any time, and for no reason other than its own untrammeled will, to terminate the lease contract and thus, indirectly, terminate the contract of employment; and (b) the contract of employment provides for the personal services of Foulks in that it requires him to drive the truck.

The contract of employment did not expressly give to defendant the right to discharge Foulks. Nor did the other contract—the so-called lease contract—give to defendant the right to terminate the lease of the truck merely because the manner whereby Foulks was performing his con

Assuming, though not conceding, that the written contract of employment contemplated that Foulks should personally drive the truck, the fact remains that Foulks ■' did employ others to drive it and deliver the loads; that these other persons received their orders and directions, as well as their pay, from him and not from defendant; and that defendant acquiesced in this course of conduct. And even if Foulks himself had been required to drive the truck, it would not necessarily follow that he was a servant and, not an independent contractor. (See Gall v. Detroit Journal Co., supra.) The fact is there were many circumstances adduced at the trial, none of an absolutely controlling nature, but each pointing to the character of the employment—some squinting at the relationship of master and servant and others at that of contraetee and independent contractor. For this reason different and discordant inferences were deducible from the attending circumstances, so

[10] Furthermore, the doctrine of respondeat superior applies only where the relation of master and servant is shown to exist between the wrongdoer and the person sought to be charged with the result of the wrong, at the time and in respect to the very transaction out of which the injury arises. Foulks was in possession of the truck as lessee, or purchaser under a conditional sale contract. Upon him alone, under the terms of his contract with defendant, rested the obligation to take care of, house, and repair the truck. At the time of the accident the truck, which had been in a repair shop for certain repair work, was being taken from the repair-shop to the place where Foulks habitually kept it overnight. At that time the truck was not being used in the service of defendant. At that- time Foulks was the only master in whose business the driver and his helper were engaged.

Order reversed.

Sloane, J., and Thomas, J., concurred.

A petition to have the cause heard in the supreme court, after judgment in the district court of appeal, was denied by the supreme court on August 4, 1919.

All the Justices concurred.