Badertscher v. Independent Ice Co. ( 1919 )

FRICK-, J.

Plaintiff commenced this action in the district ’court of Salt Lake county against the Independent Ice Company, a corporation, hereinafter called ice company, and against the Wasatch Coal Company, also a corporation, hereinafter styled coal company, to recover damages for personal injuries which he claimed to have suffered through the alleged joint negligence of the two companies.

Upon the trial of the case, after the plaintiff had introduced his evidence, the two companies filed separate motions for non-suits upon the ground that the evidence, for the reasons stated in the motions, was insufficient to take the case to the jury. The district court granted the motion of the ice company and denied that of the coal company. The case was accordingly dismissed as against the ice company, and the trial proceeded as against the coal company alone. The jury, under the instructions of the court, which are not complained of here, found a verdict in favor of the plaintiff against the coal company. Judgment was duly entered on the verdict, from which the coal company appeals, and assigns a number of errors, which we shall hereinafter consider.

In taking the appeal from the judgment against it the coal company did not serve the ice company with notice of the appeal. The plaintiff has filed a motion to dismiss the coal company’s appeal upon the ground that the ice company is an adverse party, and hence a necessary party to the appeal, and, not having been served with notice of the appeal, he contends this court cannot hear the appeal for want of jurisdiction. In view that the plaintiff sued the two companies as joint wrongdoers, their precise relationship for the purposes of this motion is quite immaterial. The question, and the only question, to be determined upon the motion, is, Is the ice company an adverse, and hence a necessary, party to this appeal! In other words, would its interests, from a legal point of view, be affected in case the judgment against the coal company were modified or reversed ? The fact that the district court, upon the evidence produced against the ice company, as a matter of law found that it was not connected with the alleged wrong or tort, and upon that ground entered a judgment dismissing the action against it, which judgment is in full force and effect, should conclusively dispose of this motion against the plaintiff’s contentions. If, as a matter of law, the plaintiff has no cause of action against the ice company, in what way can that company be interested in this appeal, which is from a judgment 1 against the coal company alone, and which appeal is from that judgment only and from no other? I confess my utter inability to understand how the ice company is any longer connected with this case. Why is not the judgment of dismissal upon the grounds stated, while not appealed from, for the purposes of this appeal just as conclusive as a judgment upon the merits in defendant’s favor, if not appealed from, would be? It would seem that upon a proposition so elementary no authority should be required. The following cases are, however, squarely in point: Bliss v. Grayson, 24 Nev. 422, 56 Pac. 231; O’Keefe v. Omlie, 17 N. D. 404, 117 N. W. 353; State v. Mining Co., 169 Mo. App. 79, 154 S. W. 168. See, also, Tucker v. Carlson, 113 Iowa, 449, 85 N. W. 901.

In Bliss v. Grayson, supra, the court said: “Notice of appeal by a defendant need not be served on defendants who were dismissed from the action before judgment.” O’Keefe v. Omlie, supra, is precisely to the' same effect. As a matter of course such must be the ease. When the judgment of dismissal was entered, which is still in full force and effect, the ice company went out of the case, and thereafter its legal relation to the defendant coal company was precisely the same as though it never had been a party at all. True, the plaintiff might have appealed from the judgment of dismissal, and might thus have continued the ice company in the case; but he did not do so, and. therefore the judgment of dismissal stands. The plaintiff was, however, the only one who could have complained of that judgment. The coal company, being sued as a joint wrongdoer, cannot legally complain because the action was dismissed against the ice company before judgment. The coal company, being a joint wrongdoer, is liable for the whole damage, and has no right of contribution against its joint wrongdoer, and hence cannot complain if the other joint wrongdoer is dismissed from the action. 1 Cooley on Torts (3d Ed.) 254; Groot v. R. R. Co., 34 Utah, 152, 96 Pac. 1019; City of Covington v. Whitney (Ky.) 96 S. W. 907. Indeed, the coal company had no right of appeal from the judgment of dismissal. That is squarely decided in the case of City of Covington v. Whitney, supra, and is clearly the logic of the decision in Groof v. R. R. Co. It is, however,contended that the cases of Griffin v. So. Pac. Co., 31 Utah, 296, 87 Pac. 1091, Allen v. Garner, 45 Utah, 39, 143 Pac. 228, and other cases, there cited, hold to the contrary. There is no merit to the contention. In all of those cases there were joint judgments, and the party upon whom service of notice was omitted would have been affected by the modification or reversal of the judgment. The distinction between those cases and the one at bar is stated in the ease of Langton L. & C. Co. v. Peery, 48, Utah, 112, 159 Pac. 49, in the following words:

“It will be observed, however, that the test whether a party below is a necessary party to an appeal, as laid down in that case [Allen v. Garner, 45 Utah, 39, 143 Pac. 2281, as in all other cases emanating from this court, is that the omitted party must be affected by a modification or reversal of the judgment appealed from. If a party would not be affected he is not a necessary party, and hence to omit to serve him with notice of appeal. * * * is not fatal to the appeal.”

All of the Utah cases are clearly distinguishable from the case at bar, and hence have no controlling influence here.

It is, however, further contended that inasmuch as, under our statute (Comp. Laws 1917, section 6484), a party who fails in an action otherwise than upon the merits “may commence a new action within one year after the reversal or failure” of the original action, that for that reason the ice company is interested in this appeal and should have been served witb notice. That contention entirely overlooks or ignores the real purport of the statute. What the statute permits is a “new action” which is entirely independent of the one that failed. The original action is ended, so 2 far as the defendant against whom it was dismissed is concerned, precisely the same as though no new action could be commenced. If it be true that in this case the ice company must be served with notice because the new action could be commenced against it, if commenced within the time limited by the statute, then it is also true that in this state the joint wrongdoers have a right to be served with notice of appeal, whether parties to the action or not, for the simple reason that a new action can be commenced at any time against them, if commenced within the statutory period of limitations, so long as the damages remain unsatisfied.

But it is urged that the ice company is interested in maintaining the judgment against the coal company and in having it paid by that company. While that may be true, it would be no less true if the ice company had never been made a party to the action. It is true precisely the same so far as the driver of the wagon is concerned, who., because of his negligence, caused plaintiff’s injury of which he here complains. So long as the damages remain unsatisfied the driver of the wagon may be sued, if sued within the statutory period of limitations, and hence he is also interested in having the coal company pay the judgment. No one would, however, seriously contend that he could come into this court and insist upon an affirmance of the judgment against the coal company. The legal status of the ice company, in view of the entry of the judgment of dismissal, is, however, precisely the same as that of the driver of the wagon. True, it was made a party to the action, but the district court found and adjudged as a matter of law that it was not responsible for the wrong, and entered judgment dismissing the action against it. The ice company, therefore, is no more a party to the action than is the driver of the wagon, and for that reason has no right to be heard on the coal company’s appeal any more than the driver would have. The case of Humphreys v. Hunt, 9 Okl. 196, 59 Pac. 971, is relied on as bolding to a contrary doctrine. While it is true that in that case the Supreme Court of Oklahoma has apparently arrived at a different conclusion, yet the writer confesses his utter inability to understand the legal principle upon which the decision in that case rests. Another case is also relied on, namely, Bullock v. Taylor, 112 Cal. 147, 44 Pac. 457. That case is a case of joint contractual liability, and, in addition to that, it seems from that case that an appeal by any party to the action brings up the whole cause for review. Such is not the ease in this jurisdiction. Here there is no appeal except from a final judgment. A party, in order to be entitled to have rulings occurring during the trial reviewed, must appeal from the final judgment. An appeal may also be taken from any judgment, if there be more than one in the case, and from any independent part of a judgment. In this case the judgment of dismissal in favor of the ice company is clearly a separate and independent judgment, has no connection with the judgment against the coal company, and an appeal by the coal company from the judgment against it in no way affects the judgment of dismissal. Besides, as we have seen, the plaintiff is the only one who could have assailed the judgment against the coal company by an appeal, and he did not do so. Neither the ease from Oklahoma nor the one from California has any bearing upon this motion. Moreover, this court, in a number of unreported cases, refused to dismiss appeals upon the ground that a joint wrongdoer, against whom the action was dismissed in the court below, was not served with notice of appeal to this court. The rulings ’ in those cases ‘are manifestly sound and should be adhered to.

Finally, it is contended that, inasmuch as the coal company has assigned the ruling of the district court in sustaining the ice company’s motion for a nonsuit as error, for that reason it should have been served with notice. I have already pointed out that the coal company cannot legally complain of that ruling, and that in no event could the ruling be reviewed without appealing from the judgment following the ruling. Both of the foregoing reasons are conclusive 3-5 against the motion. It would be strange doctrine, however, because a party asks too much, that, for that reason, the court is ousted of jurisdiction. If that doctrine prevailed this court would have to be abolished for want of something to do. But even if the coal company had the right to complain of the ruling of the district court in sustaining the ice company’s motion for a nonsuit, yet this court would be powerless to review the ruling, because the coal company saved no exception to the ruling. Without such an exception we cannot review the ruling on the motion for a nonsuit. Stewart v. R. R., 39 Utah, 375, 117 Pac. 465. The motion to dismiss the appeal must, therefore, be denied.

This brings us to the merits of the appeal.

Plaintiff’s evidence, which is material here, at the time the coal company interposed its motion for a nonsuit, was, in substance, as follows: The coal company was engaged in the retail coal business at Salt Lake City. The ice company was engaged in the ice business. During the winter season the ice company had a surplus of men and teams, while the coal company did not always have sufficient men and teams to deliver coal to its customers as ordered by them. The coal company applied to the ice company for teams and men, and for the running gears of wagons. Whenever the coal company desired men and teams it would apply to the ice company, and the ice company would then order some of the teamsters in its employ to report to the coal company with teams and the running gears of wagons. The coal company furnished the wagon boxes in which the coal was hauled, on which boxes the name of the coal company was printed in large letters. After the box was placed on the running gear of a wagon, the teamster with the team and wagon would report to the foreman of the coal company at its coal yard, and the foreman would then direct the teamster where to load the coal and to whom to deliver the same. If the coal was delivered C. O. D. the teamster would also collect the price of the coal, and in addition thereto the additional cost of de Every, which in 'this- case was one dollar per ton. When the coal was to be delivered C. O. D., and tbe customer did not pay tberefor, tbe coal was taken back to tbe coal company’s yard by tbe teamster. The extra amount that was collected by tbe coal company for delivering tbe coal to its customers, in this instance one dollar per ton, was divided between tbe ice company and its teamsters. Tbe ice company, however, settled with the teamsters periodically. Tbe relationship of tbe coal .company and tbe ice company and its teamsters was that the ice company hired tbe teamsters, furnished tbe teams and running gears of the wagons; the coal company furnished tbe coal and the wagon boxes and tbe customers to whom tbe coal was to be delivered; and the teamsters did tbe work incident to tbe delivery of the coal, and in ease tbe coal was' delivered C. O. D. collected tbe price of tbe coal plus tbe cost of delivering, in this instance, one dollar per ton, and would account to tbe coal company for tbe price of tbe coal. At tbe time tbe motion for a nonsuit was interposed it was uncertain whether tbe teamster whose alleged negligence caused plaintiff’s injury was one of tbe ice company’s teamsters or whether be was hired fey tbe coal company. Tbe team and wagon-gear, however, belonged to tbe ice company, while the wagon box belonged to tbe coal company. We shall consider this ease, however, as though the teamster was employed by tbe ice company, was paid by it from time to time, and was sent to tbe coal company to deliver coal as hereinbefore stated.

On the evening of November 2, 1917, one of tbe teamsters aforesaid undertook to deliver a wagon load of coal to one of tbe coal company’s customers in tbe southeastern part of Salt Lake City. In attempting to deliver tbe coal the team was unable to pull the load of coal over tbe sidewalk, and the teamster then unhitched bis team, leaving tbe wagon tongue to protrude entirely across tbe sidewalk about a foot above the walk. Tbe tongue was left in that condition, without auy sign or warning of any kind, all night. Early tbe next morning, before daylight, the plaintiff, being wholly ignorant of tbe condition of the wagon tongue, in delivering the morning papers, while riding on his bicycle, ran against tbe wagon tongue, and was thrown from his bicycle and was severely injured. Tbe coal company unloaded tbe coal from the wagon some time next day. Tbe plaintiff made the necessary proof concerning bis' injuries, damages, etc., and rested. Both tbe ice company and the coal company then interposed separate motions for a nonsuit. The motion of tbe ice company was granted, while that of tbe coal company was denied, and tbe case proceeded to judgment against it. The appeal is from that judgment.

Tbe principal error assigned, in fact the only one we need to specially consider, is that tbe court erred in denying defendant’s motion for a nonsuit, and in submitting tbe case to tbe jury on the-facts, upon tbe ground that tbe driver of tbe wagon was not tbe agent or servant of the coal company, but was in fact and in law the agent or servant of tbe ice company. ¥e need not pause to consider the relationship of tbe ice company to the transaction in question. It is sufficient for us to know that tbe ice company was dismissed from the case as hereinbefore stated, and that tbe coal company cannot legally complain of tbe court’s ruling in dismissing tbe ice company from tbe case. Tbe only question, therefore, that, concerns us is, what is tbe relationship of tbe coal company and tbe driver of tbe wagon and bow is it related, to the transaction in question ? Can we say as a matter of law that it should not be held liable for tbe negligence of tbe driver in leaving tbe wagonr tongue in tbe condition stated, and thus endangering tbe safety of any person who might attempt to pass over tbe sidewalk in tbe nighttime? It is not always easy to determine the precise relationship of tbe parties under circumstances like those in the case at bar. Tbe courts have at times found it difficult to determine which one of the two alleged employers is liable for tbe negligent acts of commission or omission of a particular employé. Mr. Justice MOODY states tbe principle which applies to cases like those we have just referred to so clearly and so admirably that we take tbe liberty of quoting bis statement, which is found in tbe case of Standard Oil Co. v. Anderson, 212 U. S. at page 220, 29 Sup. Ct. at page 253 (53 L. Ed. 480). Tbe Justice says:

“One who employs a servant to do his work is answerable to strangers for the negligent acts or omissions of the servant committed in the course of the service. The plaintiff rests his right to recover upon this rule of law which, though of comparatively modern origin, has come to be elementary. But, however, clear the rule may be, its application to the infinitely varied affairs of life is not always easy, because the facts which place a given case within or without the rule cannot always be ascertained with precision. The servant himself is, of course, liable for the consequences of his .own carelessness. But when, as is so frequently the case, an attempt is made to impose upon the master the liability for the consequences, it sometimes becomes necessary to inquire who was the master at the very time of the negligent act or omission. One may be in the general service of another, and, nevertheless, with respect to particular work, may be transferred, with his own consent or acquiescence, to the service of a third person, so that he becomes the servant of that person with all the legal consequences of the new relation.”

The facts and conclusion of the court are so accurately reflected in the third headnote to the case of Philadelphia & R. C. & I. Co. v. Barrie, 179 Fed. 50, 102 C. C. A. 618, as to justify the adoption of that headnote as part of this opinion, which .we do. The headnote reads as follows:

“Where defendant, a coal dealer, in delivering coal from its yards to customers, hired from another dealer a team and a driver in the latter’s general employ, paying a stipulated sum per hour for their services, and' having full control and direction of the work and the method of its performance, the driver, while engaged in such work, was a servant of defendant, which was liable for an injury to a third person caused by the driver’s negligence in its performance.”

The doctrine announced in the Barrie Case is also fully sustained in 1 Labatt, Master and Servant (2d Ed.) sections 52-57, where the author, in referring to the decisions in which the relationship between a servant who by his employer is permitted to work for another person is disc'ussed, approves and adopts the language of Mr. Chief Justice Cockburn in Rourke v. White Moss Colliery Co., L. R. 2 C, P. Div. 205, namely:

" ‘When one person lends his servant to another for a particular employment, the servant, for anything done in that particular employment, must be dealt with as the servant of the man to whom he is lent, although he remains the general servant of the person who lent him.’ ”

The author concludes:

“In other words, the servant of A. may, for a particular purpose or on a particular occasion, he the servant of B., though he continues to he the general servant of A. and is paid hy him for his work.”

To the same effect are Scribner’s Case, 231 Mass. 132, 120 N. E. 350 and Moll, Independent Contractors and Employers Liability; Section 7.

Plaintiff’s counsel has also called our attention to a recent article in 89 Central Law Journal, pages 97-103, in which the doctrine is ably discussed, and where a number 6, 7 of cases are cited and distinguished. The writer of the article mates it quite clear that the doctrine quoted from Labatt is the one that is supported by the best-considered cases. We desire to express our appreciation to counsel for having directed our attention to the article while the case remained undisposed of.

The following cases also fully sustain the conclusion reached in the Barrie Case from which we have quoted: Kolnitsky v. Matthews, 64 Misc. Rep. 167, 118 N. Y. Supp. 366, Weber v. Becker (Sup.) 136 N. Y. Supp. 119, and Glover v. Richardson & Elmer Co., 64 Wash. 403, 116 Pac. 861. There are a number of cases'cited in the foregoing cases, where the same result was reached under similar circumstances, to which we need not specially refer.

The law as laid down in the foregoing cases fully justifies us in sustaining the ruling of the trial court in denying the motion of the coal company for a nonsuit: Counsel for the coal company has however, cited and relies upon the following, among other, cases: Driscoll v. Towle, 181 Mass. 416, 63 N. E. 922; Foster v. Wadsworth-Howland Co., 168 Ill. 514, 48 N. E. 163; Chicago, etc., Co. v. Campbell, 116 Ill. App. 322; Cohen v. Western Elec. Co., 50 Misc. Rep. 660, 99 N. Y. Supp. 525; Quinn v. Complete Elec. Const. Co. (C. C.) 46 Fed. 506; Joslin v. Grand Rapids Ice Co., 50 Mich. 516, 15 N. W. 887, 45 Am. Rep. 54; Kellogg v. Church Charity Foundation, 203 N. Y. 191, 96 N. E. 406, 38 L. R. A. (N. S.) 481, Ann. Cas. 1913A, 883; Ash v. Century Lumber Co., 153 Iowa, 523, 133 N. W. 888, 38 L. R. A. (N. S.) 973.

While all of the foregoing cases have features which in some respects are similar to those in the case at bar, yet, upon a close analysis of the cases, it will be found that the case at bar in many respects is distinguishable from those cases, and that the controlling features of this case are like those in the cases we have quoted from above.

Upon the whole record we feel constrained to hold that the district court did not err in denying the motion for a non-suit, and that the case is not one where we can say as a matter of law that the coal company is not responsible for the negligent acts of the driver of the coal wagon in leaving it in the condition he did while in the act of delivering the coal of the coal company; while, upon the other hand, under the law as laid down in the cases we have quoted from, when applied to the facts, the jury could well find that the driver of the wagon was the agent of the coal company, and that it is responsible for his negligence.

Other errors assigned, in view of the record, are not such as require special consideration.

For the reasons stated the judgment should be, and it accordingly is, affirmed, with costs to plaintiff.

CORFMAN, C. J., and WEBER and THURMAN, JJ., concur. ,