
    Sams, Appellee, v. Hughes, Appellant.
    (No. 119
    Decided March 23, 1950.)
    
      Mr. Harold A. Predmore and Messrs. Rendigs & Pry, for appellee.
    
      Messrs. Matthews & Altich and Mr. Eugene A. Hahne, for appellant.
   Metcalf, J.

This appeal grows out of an action brought by Donald C. Sams, father of a minor daughter six years of age, to recover for medical, hospital, nursing and other expenses incurred by him by reason of injuries sustained by such minor as a result of being struck by an automobile owned by the defendant-appellant, Ferris L. Hughes, which at the time of the accident was being driven by Edward Barrett, a garage and filling station operator who was delivering the automobile to defendant’s residence after it had been repaired in a garage operated jointly by Barrett and one Woodrow Reno.

The jury found in favor of the plaintiff and returned a verdict against the defendant in the sum of $8,772. It is from that verdict and the judgment thereon that this appeal is taken on questions of law. While there are six separate assignments of error, counsel for both parties agree that the assignments present only two questions of law, there being no dispute of any consequence relative to the facts. These questions are: First, did the trial court err in deciding that the driver of the automobile was the agent of defendant rather than an independent contractor, in operating defendant’s automobile at the time of the accident? Second, did the trial court err in refusing to give appellant’s special charge No. 2?

We will dispose of the second question by simply stating that an examination of special charge No. 2 discloses that, while perhaps not so intended, it is confusing in that it throws upon this minor child the duty of exercising at least some degree of care, and can easily be interpreted as charging her with being capable of contributory negligence, with which she can not be charged by reason of her infancy. True, it contains the word, “solely,” in reference to the cause of such injuries yet, in our opinion, its lack of clarity made mandatory the court’s refusal to give it.

The one important question in this case is whether Barrett, the driver of the car at the time of the accident, was an independent contractor or the servant of the defendant.

The defendant is a farmer residing two and one-half miles south of Hillsboro, Ohio. On May 2, 1946, the time of the accident involved herein, Edward Barrett was the proprietor of a filling station combined with a small garage, located on North High street in Hillsboro and called the Barrett Service Station. Barrett operated the service station individually, but he, together with one Woodrow Reno, an automobile mechanic, operated jointly the garage part of the business, Reno making repairs on cars brought there for that purpose. The record indicates that Reno had nothing to do with the filling station part of the business, it being operated independently by Barrett.

On the morning of the above date the defendant, Hughes, brought his automobile to this garage to be repaired. Barrett was not there at the time and the only contact had by the defendant was with Reno.

On the question of the delivery of the car after the completion of the repairs the defendant, Hughes, testified :

“When he [Reno] drove up he asked me if I wanted him to call me when he got it done. I said, you probably won’t get it done today. He said, I will bring it out. Now that was just the words he said, I’ll bring it out. I said O. K.”

Mr. Reno testified:

“Well, say I asked Mr. Hughes if he wanted the car delivered and Mr. Hughes said, O. K. ”

Reno testified further that he told his partner, Barrett, that the automobile was to be delivered; that he had no instructions as to the manner or mode in which the car was to be driven or the route over which it was to be driven; that it was customary, with the authority of the owner, in the operation of the service station and garage business to deliver customers’ automobiles without charge after the repairs were completed; and that this was done as a courtesy on the part of the garage.

The repairs to the automobile were completed by Reno, and about 12:30 o’clock on that day Barrett drove the automobile from the garage for the purpose of delivering it to the residence of the defendant. Barrett testified by deposition and stated in substance that he chose the route and the manner and mode of driving in delivering the automobile to the defendant, Hughes. As he proceeded southwardly on High street in Hillsboro the car struck and injured plaintiff’s daughter who was running westwardly across the street at a point other than an intersection or crosswalk.

It should be noted that the defendant moved for a directed verdict at the close of all the evidence; moved for a judgment notwithstanding the verdict; and moved for a new trial, all of which motions were overruled.

Since the facts were not in conflict, counsel for both parties joined in asking the court to declare as a matter of law what relationship existed bewteen the defendant, Hughes, and the driver of the car, Barrett. Under such circumstances it became the duty of the trial court to charge the jury as to the result that mast-follow an application of the law to the facts so established, and, since the question is whether the relationship of master and servant or that of independent contractor arose by reason of such facts, the trial court should have instructed the jury as to which relationship existed. Schickling, an Infant, v. Post Publishing Co., 115 Ohio St., 589, 155 N. E., 143.

This the trial court did in its general charge by instructing that the plaintiff must prove:

“That the driver of the automobile was acting as defendant’s agent at the time of the accident.
“And now since there is no conflict in the testimony as to that, the court has found that he was so acting as agent, and, therefore, the principal is liable for any negligence of his agent. That eliminates that issue.”

In determining the correctness of this charge an examination of the rules promulgated by the Supreme Court of Ohio, distinguishing the relationship of master and servant from that of employee and independent contractor, is imperative.

In the case of Miller v. Metropolitan Life Ins. Co., 134 Ohio St., 289, 16 N. E. (2d), 447, the court on pages 291 and 292, said:

The relation of principal and agent or master and servant is distinguished from the relation of employer and independent contractor by the following-test : Did the employer retain control, or the right to control, the mode and manner of doing the work contracted for ? If he did, the relation is that of principal and agent or master and servant. If he did not but is interested merely in the ultimate result to be accomplished, the relation is that of employer and independent contractor.”

The Supreme Court in the case of Gillum v. Industrial Commission, 141 Ohio St., 373, 48 N. E. (2d), 234, again announced the test to be applied in determining whether one is an independent contractor or servant. The second paragraph of the syllabus reads:

“Whether one is an independent contractor or in service depends upon the facts of each case. The principal test applied to determine the character of the arrangement is that if the employer reserves the right to control the manner or means of doing the work, the relation created is that of master and servant, while if the manner or means of doing the work or job is left to one who is responsible to the employer only for the result, an independent contractor relationship is thereby created.”

The defendant’s automobile was delivered to the garage for repair, thereby creating a contract of bailment, one of the implied terms of which is the redelivery of the automobile to its owner. This may be done upon the premises of the garage by placing the automobile where it is accessible to its owner or at any other place agreed upon by the bailor and bailee. The redelivery of the automobile to its owner was as much a part of the contract of bailment as the repairs that were to be made. The garageman was under no obligation, contractual or otherwise, in the first instance, to offer to return or deliver the automobile to the defendant at his farm home. He volunteered to do this in lieu of telephoning the owner and the latter accepted the offer. That it was without extra remuneration or, according to the testimony of Reno, that it was done to accommodate customers when it was able to be done is beside the point. It is strenuously urged by counsel for plaintiff that there were two separate contracts entered into on the morning this car was delivered for repairs. One of bailment for the purpose of repairing, thereby creating the relationship of independent contractor, and one to deliver the car to the farm home by the agent of the owner.

It seems to the majority of this court that which ever view is taken of the arrangement entered into on the morning the defendant brought his car to the garage for repairs, that is, whether there were two separate contracts, one of bailment arid one for delivery, or whether as contended by defendant it was one contract, the result will be the same. The terms of the contract or contracts as completed provide only that the garage should make the repairs and deliver the car to its owner at his home. Only the result was agreed to, namely, the repair and the delivery of the car. The details of making delivery and the manner and mode thereof were left entirely to the discretion of the garage without retention or reservation of control on the part of Hughes. Under the contract, Reno could deliver this car himself or send another and he chose to send his partner, Barrett. The features of the trip such as the route, the speed, and the stops, if any, were left to the uncontrolled discretion of the garage.

It is urged by plaintiff’s counsel in their brief and oral argument that even though this is so, the right to control the same remained with the defendant, Hughes. Such interpretation is in conflict with the terms of the agreement applying to the delivery of this car. There is no question that Hughes could have reserved the right to control the manner and mode of delivering the car, the route to be driven, and all other incidental features appertaining thereto, but this right was neither reserved nor provided for in the contract between the defendant and the garage, either expressly or by implication.

The question is not what right of control the defendant, Hughes, could have provided for in the contract of delivery but rather is what, if any, right of control did he exercise or reserve in the contract for delivery. The contract is devoid of any such reservation of control or the right to control. The reason for this is manifest and can be expressed in no better terms than that in which counsel for plaintiff have set forth in their well written brief, although, of course, it is intended to substantiate their claim of the existence of control. This paragraph in the brief of counsel for plaintiff reads:

£ £ The situation was such that there was no need for Hughes to exercise his right of control. He evidently assumed that the car would be driven lawfully and over the most direct route to his home. Having placed his trust in the garage to properly repair his car, it cannot be said to be unusual that he did not delineate in minute detail the exact manner or route over which he wished his car to be driven upon its return to his farm.”

The fact is that not only did the defendant fail to delineate in minute detail but he in no way exercised nor did he reserve the right to exercise any control.

The Supreme Court of Wisconsin in the Ederer case, infra, under circumstances similar to the instant case, gave as one of its reasons for holding that the garage was an independent contractor a similar statement as to why the owner of an automobile has the right to assume that the car would be driven lawfully, i. e., “the risk which the law puts upon the owner of an * * * automobile is, upon principles of justice and good sense, no longer his when he turns his automobile over to a garage, repair shop, or service station for repairs or servicing.” The court cited a long list of decisions from various jurisdictions upholding this principle.

We agree with counsel for appellee that the situation was such that there was no need for Hughes to exercise any right of control. However, we insist that this right is not something that can be pulled out of thin air and that its existence must be determined from the contract that creates the relationship. The words and statements of the defendant and Reno, admitted by all counsel to be true, yield to no other interpretation than that the manner or mode of doing both the repair job and the delivery of the automobile to defendant’s home thereafter were left solely to the garage and that the garage was responsible only to the defendant for the result.

In Rich, v. Holmes (1932), 104 Vt., 433, 160 A., 173, the Supreme Court of Vermont held, as shown by the first two paragraphs of the syllabus:

“Rule for determination of whether existing relationship is that of independent contractor or master and servant is whether under contract alleged master has right to control not only result, but also means and methods adopted to accomplish result.
“Where garage repairman, after completion of repairs on automobile, was directed by owner to deliver such car at specified place, but details of making delivery were left wholly to former’s uncontrolled discretion, held that he was independent contractor, and not servant and agent of such owner. ’ ’

Since the tests set forth in the Rich case for the determination of whether the driver of the automobile is an agent or an independent contractor are similar to those of Ohio, we take the liberty of quoting from the opinion the comment of the court, at page 438, on the question of control or right to control being reserved to the owner.

“With this crucial test in mind, it only remains to apply it to the facts as stated. The defendant contends that the arrangement for delivery of the car at Pitts-field was a modification of the original contract of bailment, and should be considered and construed as a part of it. But the plaintiff argues that the undertaking for delivery was separate and distinct from the contract for repairs. We think that the plaintiff’s version of the contract is correct, but, whichever view is taken of it, the result will be the same. The terms of the contract as completed provided only that Allen should make delivery of the car to Holmes at Pitts-field, and receive compensation therefor. Holmes specified only the result, which was delivery at Pitts-field. The details of making delivery were left entirely to the control of Allen. He could go himself or send another driver; he chose to go himself. The features of the trip were left to Allen without right of control by Holmes. In those matters he was his own master. The route which he took was of his own selection; the speed of the car and the stops which he made were left to his own uncontrolled discretion. The plaintiff says that Holmes might have stopped Allen at any point of the journey and directed a different place of delivery. This contention is in conflict with the terms * * * specifically agreed upon, and no right was reserved to change it. The contract could be changed in that respect only by putting an end to it, either by cancellation or substitution.”

Counsel for both parties state that this is a case of first impression involving the same factual situation in Ohio. However, we are not without precedent from many other jurisdictions in addition to the Rich case, supra. In Gatz v. Smith (1947), 205 S. W. (2d), 616, decided by the Court of Civil Appeals of Texas, it was held, as disclosed by the headnotes:

“2. Although repairman, who had received automobile as a bailee to repair it, was not under obligation, either by contract or by local custom, to deliver automobile to owner at any place except repair shop, repairman had a right to return automobile to owner at another garage without charge for such service, without effecting an alteration of the relationship.
“3. Where repairman, as a matter of accommodation, agreed to return automobile to owner at a different garage and retain possession of automobile for that purpose and directed an employee to make delivery, and employee struck plaintiff with automobile while making such delivery, repairman, rather than owner of automobile, was responsible for negligence of driver, since possession was still that of repairman..” (Emphasis supplied.)

In Daigle v. Pelletier (1943), 139 Me., 382, 31 A. (2d), 345, decided by the Supreme Judicial Court of Maine, the first two paragraphs of the syllabus read:

“The delivery of a municipally owned fire-truck, by its driver, to a g’arage for requested service and the acceptance of it for the service requested, by the garage, constitutes a bailment.
“In the performance of such contract of bailment, in the absence of any control by the bailor, the garage proprietor and his employees engaged therein are independent contractors whose negligence is not imputable to the bailor.”

In the course of the opinion, on pages 385 and 386, the court made the following statement:

“An essential element of every contract of bailment of an automobile for repairs, however, is the agreement of the bailee to return the car to the bailor or his authorized representative and if the place of return is designated therein the contract is not complete until a delivery there has been made.” (Emphasis supplied.)

The Supreme Court of Rhode Island in the case of Conant f. b. o. Indemnity Ins. Co. of North America v. Giddings, 65 R. I., 79, 13 A. (2d), 517, held, as disclosed by the first paragraph of the syllabus:

“Apart from statutory regulation, a garageman, who takes an automobile to his garage to be worked upon, and over whom the owner of the automobile has no control as to the performance of the work or the operation of the automobile, is an independent contractor on his own business, and not a servant or agent of such owner who is, therefore, not liable for any negligence of the garageman during such trip.” (Emphasis supplied.)

The Supreme Court of Wisconsin in the case of Paine v. Finkler Motor Car Co., Inc. (1936), 220 Wis., 9, 264 N. W., 477, held, as shown by paragraph one of the syllabus:

“When an automobile is delivered for repairs to a public garage or its employees, a bailment is created which places the responsibility for negligence in driving the automobile by garage employees upon the garage keeper under the rule of respondeat superior.”

The Supreme Court of Wisconsin in 1936 also held in the case of Ederer v. Milwaukee Automobile Ins. Co. Limited Mutual, 220 Wis., 635, 639, 265 N. W., 694:

“The owner of an automobile is liable only for his own negligence or that of his agent or employee while the latter is acting within the scope of his employment. * * * He is not liable for the negligence of the owner of a garage, or his agent or employee, while operating his automobile, not as his agent but as an independent contractor. ’ ’

In 46 A. L. R., 840, the question involved in this case is annotated. This annotation is headed by the statement that “as a general rule the owner of a car is not liable for the negligent driving of his car by a person in the general employment of a garage man while getting or delivering his car.” The cases cited thereunder warrant this statement.

Counsel for both parties have been helpful to the court in briefing the law from other jurisdictions as well as the textbook law they feel applies to their respective positions. Plaintiff has set forth several decisions from other jurisdictions which appear to be contrary to the conclusion reached by a majority of this court, but an analysis of those cases reveals that they are clearly distinguishable, either because of the factual situation, the formula to be applied, or the law of the particular jurisdiction making the issue involved, not as it arises in this appeal, but one of fact for the jury.

A majority of this court is forced to the conclusion that Edward Barrett, while in the process of delivering defendant’s car, was an independent contractor and as such his negligence, if any, cannot be imputed to the defendant; that the trial court was in error in charging the jury that the relationship of principal and agent existed between the defendant and Barrett; and that the jury should have been charged in words and effect that the relationship was one of independent contractor with, and not as servant of, the defendant. Of course, such a charge would have terminated the case. In other words, in the opinion of this court, the motion for a directed verdict in favor of the defendant should have been granted. Not having done this, judgment non obstante veredicto would have been in order.

The charge on the relationship existing between the defendant and Barrett as well as the rulings on the various motions herein enumerated are erroneous and prejudicial. There is no conflict in the evidence on this material question; hence, there is presented purely a question of the application of the legal formula to the established facts, which question we resolve against the plaintiff. Therefore, the judgment of the Common Pleas Court should be and hereby is reversed and judgment rendered for defendant.

Judgment reversed.

Gillen, J., concurs.

McCurdy, P. J.,

dissenting. Jurisdictions, which attempt to resolve questions similar to the issues involved in the instant case by confining the situation created to the law of bailments, by necessity must ignore the proposition that the bailee, under proper circumstances at the termination of his work for which the bailment was made, does, if the parties so agree, take off his cloak of bailment and put on the cloak of agent.

The reasoning that should be applied in this case has been adopted in many jurisdictions, and is to the effect that a bailment of an automobile is made when it is delivered to the mechanic for the purpose of making repairs, and such bailment continues in force until the repairs are completed. Ordinarily, delivery would terminate the bailment, but where by agreement of the parties the owner does not return to get his car, and specifies separate and apart from the contract for repairs that the car be delivered to him, the bailment terminates upon the completion of the repairs. The repairman becomes the agent of the owner in making the delivery of the automobile to the owner, even though such delivery is in the nature of an accommodation or a favor.

In this case there is no dispute about the facts. The defendant, Hughes, after making the contract for repairs, stated to the repairman, “Xou probably won’t get it done today,” whereupon the repairman replied, “I will bring it out.” ' To this offer of accommodation the owner of the automobile, the defendant, stated, “0. K.” It must be noted that this conversation took place at a time when the repairman asked the owner, Hughes, whether he wanted him, the repairman, to call Hughes when he got it done. Clearly the arrangement for delivery followed the contract for repairs, and the proper interpretation is that the arrangement for delivery was not a part of the contract for repairs.

Hughes constituted the repairman his agent and could have exercised full direction and control over him for the purpose of delivering the car. This right he did not have while a bailment for the purpose of repairs was in force. It was during the time the owner of the car could have exercised control over his agent that the agent-repairman while driving the car struck the child.

Under such circumstarices to hold that the bailment, which was created for the purpose of making repairs, continued until the time of the delivery of the car to the owner, Hughes, on the theory of law that such bailment continues until delivery by the bailee to the bailor, regardless of the arrangement between the parties in relation to delivery, is not sound and ignores the facts.

The trial court properly charged the jury in this regard, and the judgment should be affirmed.

For the foregoing reasons, briefly stated, I feel compelled to dissent in this case.  