Wood v. . Miller

39 S.E.2d 608, 226 N.C. 567, 1946 N.C. LEXIS 281

• Court: Supreme Court of North Carolina
• Decided: October 9, 1946
• Status: Published

Opinion

Winborne, J.

Tbe parties do not debate in this Court tbe question as to sufficiency of tbe evidence, offered on tbe trial below, to take tbe case to tbe jury as to actionable negligence. Tbe sole question for decision is whether there is evidence tending to show tbe relationship of master and servant between tbe driver of tbe truck covered by tbe trip lease agreement, and tbe defendant at tbe time of, and in respect to tbe collision.

Tbe relationship between tbe driver of tbe truck and tbe defendant is determinable, in tbe main, from tbe terms of tbe trip lease agreement. This is a question of law under applicable principles of law.

It is generally held that tbe relationship of master and servant is created when tbe employer retains tbe right to control and direct tbe manner in which tbe details of tbe work are to be executed and what tbe laborer shall do as tbe work progresses. See Hayes v. Elon College, 224 N. C., 11, 29 S. E. (2d), 137, where tbe authorities are assembled. “Tbe vital test is to be found in tbe fact that tbe employer has or has not retained tbe right of control or supervision over tbe contractor or employee as to tbe details,” Barnhill, J., in the Hayes case, supra.

In the light of this principle it is seen from the terms of the trip lease agreement that the defendant, as lessee of the truck, expressly assumed “direction and control of the leased vehicle and full responsibility to the public, shippers, and consignees, for its operation.” Moreover, defendant agreed to display on the truck indicia showing that it was being operated by defendant. the language is sufficiently broad to give to the defendant the full control and direction of the operation of the truck for the duration of the trip. It is true it was agreed that the name of the driver of the leased truck would be kept on the pay roll of the lessor, the owner of' the truck. But it is manifest that this was for the purpose of providing for “deduction and payment of all pay roll deductions, etc., due by reason of payment of wages or other earnings of the driver or any helper utilized in the operation of the leased vehicle, without ^be transfer to the lessee’s pay roll.” Such an arrangement does not nullify the legal effect of the action of defendant in assuming the control and direction of the operation of the truck and “responsibility to the public . . . for its operation.” See Shapiro v. Winston-Salem, 212 N. C., 751, 194 S. E., 479. Furthermore, it is set out in the trip lease agreement that the compensation to be paid by the lessee to the lessor covered “the services of the driver.”

Thus, bolding as we do, that there was error in withholding tbe case from tbe jury, other principles of law advanced by appellant need not be considered.

Tbe judgment below is

Reversed.