Foster v. Wadsworth-Howland Co.

48 N.E. 163, 168 Ill. 514

• Court: Illinois Supreme Court
• Decided: November 1, 1897
• Status: Published

Opinion

Mr. Chief Justice Phillips

delivered the opinion of the court:

The only questions presented by appellant for the consideration of this court urging the reversal of this judgment' are, with, one exception, those of fact.

After the close of all the testimony in the case, both for plaintiff and defendant, the court instructed the jury, that, under the evidence in the case, the plaintiff was not entitled to recover and that the jury should find the defendant not guilty. Exception was taken to the giving of this instruction, and the jury thereupon returned a .verdict for defendant. It is urged it was error in the trial court to give this instruction. Where an instruction is given or asked at the close of plaintiff’s testimony, instructing the jury to return a verdict at that stage of the case, the only question raised by the instruction, and the only one which can be considered by this court, is whether or not there was at that time evidence tending to prove the averments of plaintiff’s declaration. (Cicero Street Railway Co. v. Meixner, 160 Ill. 320; Pullman Palace Car Co. v. Laack, 143 id. 242; Simmons v. Chicago and Tomah Railroad Co. 110 id. 340; Chicago, Rock Island and Pacific Railway Co. v. Lewis, 109 id. 120; Goodrich v. Lincoln, 93 id. 359; Lake Shore and Michigan Southern Railway Co. v. Johnson, 135 id. 641; Phillips v. Dickerson, 85 id. 11; Purdy v. Hall, 134 id. 298.) Where, however, the motion to instruct the jury to return a verdict for defendant is made at the close of all the evidence in the case, and allowed by the court, it must be that the evidence, both for plaintiff and defendant, with all the inferences which the jury might justifiably draw therefrom, is not sufficient to support a verdict for the plaintiff if one should be returned. Lake Shore and Michigan Southern Railroad Co. v. Richards, 152 Ill. 59, and authorities cited.

The principal question necessary to be considered in this case to determine whether or not this instruction was erroneously given by the court, is whether the driver of the wagon which caused the death of appellant’s intestate was a servant of appellee. The wagon bore the name of the appellee company. In Pittsburg, Ft. Wayne and Chicago Railway Co. v. Callaghan, 157 Ill. 406, where a party was injured by an engine which was lettered with the name of the plaintiff in error, this court held that was primeo facie evidence of possession by that company. Prima facie evidence may be overcome or rebutted by proof of opposite facts, and in the case at bar it appeared from the evidence that the driver of this wagon was in the employ of one Smiddie, who owned two teams and wagons and who contracted with appellee to do its hauling for a specified sum per week The driver of the wagon which caused the injury was not an employee of appellee nor subject to its orders, but was under the control and in the employ of Smiddie. Smiddie contracted to do the hauling, which contract necessarily carried with it the duty to emploj' such assistants as might be required. His relationship with appellee was therefore in the nature of a contractor, rather than servant. “One who contracts to do a specific piece of work, furnishing his own assistants, and executing the work either entirely in accordance with his own ideas or in accordance with the plan previously given to him by the person for whom the work is done; without being subject to the orders of the latter in respect to the details of the work, is clearly a contractor, and not a servant.” Hale v. Johnson, 80 Ill. 185.

The case of Wood v. Cobb, 13 Allen, (Mass.) 58, is similar, in many respects, to this case. Plaintiff was struck by a wagon driven by one Wheeler, whose wagon had just left the place of business of defendants loaded with their goods. It developed that the defendants contracted with one Foster to deliver all their goods, and Foster, being sick, had asked permission to have Wheeler drive his wagon.' The court held Foster to be a contractor with the defendants and Wheeler in the employ of Foster, and the defendants not liable, and instructed the jury accordingly, and in its opinion the Supreme Court of that State said: “The testimony of the witness introduced by the defendants would warrant no other inference than that the person who was in charge of the horses and wagon at tlpe time the injury was done to the plaintiff was not in the employment or service of the defendants, but was acting as a servant of the tli.rd person, who exercised an independent employment in no way subject to the command or control of the defendants as to the method in which it should be carried out.” In this case appellee exercised no control over the driver of this wagon; it did not employ him; it did not pay him; it had no right to discharge him, nor had it the right to direct how or in what manner his work should be done, further than it should conform with its agreement made with Smiddie. Under the circumstances the driver of the wagon was not the servant of appellee, and, consequently, there could be no liability against it.

The instruction of the trial court to the jury to find for the defendant was not error. If any other verdict should have been returned the court could not legally have permitted it to stand.

The judgment of the Appellate Court is affirmed.

Judgment affirmed.