Lewis v. Summers ( 1940 )

The forenoon of July 18, 1936, plaintiff, while driving her automobile in a southerly direction on State highway M-40 about three and one-half miles north of the city of Dowagiac, collided with a truck driven by defendant Kass in a northerly direction, and received serious injuries. She brought this action to recover damages against the driver of the truck and defendant John Summers, doing business under the name of Summers Distributing Company, claiming that Summers was the owner of the truck and employer of the driver and, upon trial by jury, was awarded a verdict against both defendants. Judgment on the verdict was entered against Kass but, notwithstanding the verdict, the court entered judgment in favor of defendant Summers on the ground that, under the evidence, the truck was owned by Kass who was not an employee of defendant Summers but an independent contractor in delivering beer for Summers.

Plaintiff appeals, claiming that, under the evidence, whether Kass was an employee of defendant Summers and about the business of his employer at the time of the collision was a question of fact for the jury.

Defendant Kass has not appealed and the record contains only such part of the evidence as pertains to the issue of whether defendant Kass was an employee of defendant Summers or an independent contractor.

It appears that defendant Summers was a distributor of beer and, to make deliveries, he employed defendant Kass and his truck, paying an agreed price per case of beer delivered. This seems to have been the main employment of Kass. It is clear from the evidence that Kass and not Summers owned the truck but, under the evidence and reasonable inferences to be drawn therefrom, we think the issue of whether defendant Kass and his truck were in the employ of defendant Summers was for the jury, and the court was in error in entering judgment in favor of defendant Summers contrary to the verdict of the jury.

We had occasion in Dennis v. Sinclair Lumber Fuel Co.,242 Mich. 89, to consider a quite similar case of employment. In that case Mr. Dennis was hired, with use of his truck, to deliver coal in retail quantities to customers of the lumber and fuel company. His every act was under direction and control of the company. The coal for delivery was selected by the company, weighed under its supervision, billed by the company, and delivered in each instance under its immediate direction, and if not paid for before or at delivery, was brought back, and, if paid for on delivery, the money was brought to the company. We there said:

"This court has held that the test of the relationship is the right to control, whether in fact exercised or not.Tuttle v. Embury-Martin Lumber Co., 192 Mich. 385 (Ann. Cas. 1918 C, 664). Mr. Dennis served the lumber and fuel company, in accord with its direction as to each load, under its right to control his movements and command his services in carrying out its business requirements, and the company had a right to dispense with the same at will without liability. Mr. Dennis was an employee and not an independent contractor."

We there cited applicable cases.

In Lynn v. Roberts, 257 Mich. 116, we had a quite similar question and again held as in the Dennis Case.

Defendant Summers not having appealed and the record not containing the instructions to the jury we must assume that the court covered the issues on this point.

The judgment in favor of defendant Summers is reversed and the case remanded to the circuit court with direction to enter judgment against both defendants in accordance with the verdict of the jury.

Plaintiff will recover costs against defendant Summers.

SHARPE, CHANDLER, NORTH, and McALLISTER, JJ., concurred with WIEST, J.