
    The Post Publishing Co. v. Schickling, an Infant.
    
      Negligence — Independent contractor — Employer not liable to third persons, when — “Independent contractor” defined!— Automobile owner contracting to deliver newspaper bundles, independent contractor, when — Oral contract does not make existence of relationship jury question — One agreeing to make deliveries an independent contractor, when — Control by employer determines status.
    
    
      1. Employer is not liable to third persons for negligence of independent contractor.
    2. “Independent contractor” is one employed to accomplish some result or do some piece of work, but who is at liberty in general to choose his own means and methods, being responsible only for results.
    3. One furnishing automobile and agreeing with publisher to deliver papers to certain points indicated by slip attached to each bundle, but who was required to follow no specific directions en route of travel, or limits in time, held independent contractor, for whose negligence in manner of performing service publishing company was not liable.
    4. That contract to perform service was oral does not in itself make question whether relation of independent contractor was created jury question.
    5. One may agree as independent contractor to deliver papers printed by publisher.
    (Decided April 12, 1926.)
    Error: Court of Appeals for Hamilton county.
    
      Messrs. Harmon, Colston, Goldsmith & Hoadly and Mr. Joseph O’Meara, Jr., for plaintiff in error.
    
      Messrs. Jones & Pfau, for defendant in error.
   Hamilton, J.

Defendant in error brought an action against the plaintiff in error in the court of common pleas of Hamilton county, Ohio, claiming damages for personal injuries, the result of being struck by an automobile driven by a man by the name of William L. Meader, who was delivering bundles of baseball extra Posts at different stations in the city of Cincinnati. The trial of the case resulted in a verdict and judgment in favor of the defendant in error and against the plaintiff in error, and from that judgment error is prosecuted to this court.

The main defense of the plaintiff in error, who was defendant below, was, and is, that the relation of master and servant did not exist as between Meader and the publishing company, which relation would make the publishing company responsible under the doctrine of respondeat superior, but that Meader was an independent contractor and liable for his own acts while engaged in the service. At the close of plaintiff’s testimony the defendant publishing company moved for an instructed verdict, which motion was overruled by the trial court, and the case proceeded to judgment.

The trial court took the view that the question whether or not Meader was an independent contractor, under the evidence, was a question for the jury, and so charged the jury. This is the main ground of error relied upon by plaintiff in error, and will be first considered.

The only evidence in the record on the question of employment or contract between Meader and the Post Publishing Company is contained in the testimony of Meader. For a proper understanding, it is necessary to quote somewhat from his testimony. It appears from his evidence that one Mr. Hyde, connected with the publishing company, had charge of the arrangement for distribution of the publications and delivery to the distributors. On page 110 of the bill of exceptions the following appears :

“Q. Just what was the agreement with Mr. Hyde as to what you were to furnish? A. You see, when I got the job, there was a fellow told me, he says, ‘You have got a machine: why don’t you go down to the Post and haul papers ? ’ lie says, ‘I will meet you down there tomorrow, and I will talk to him about this; ’ and all right, I went. * * *
“A. So I asked him if he needed any more machines, and he said ‘Yes;’ he says, ‘What time can you get here every day?’ and I says, ‘I quit work at 2 o’clock, and I guess I can get here any time most after that’; and then he says, ‘Well; come around tomorrow,’ so the next day I went around, and he give me a trip.”

The record discloses that Meader had a Ford machine, which he had had for some time; that he kept it at his home; that he used it for family service at times; that he drove a team for the American Express Company from 6 o’clock in the morning until 2 o’clock in the afternoon; that he went to the publishing company’s place of business about 4:30 each day during the baseball season and received there from Mr. Hyde several bundles of baseball extra Posts, to be delivered at places named in the written slips attached to each bundle ; that he was paid for the time required to make the deliveries at the rate of $1.50 per hour; that he furnished his own gas, oil, and all the upkeep of his machine; that he received no further instructions. He further states that if he was not able to go down to take his route that all he did was call up, and there were always other fellows there with machines to do the work, and that there was no other agreement concerning the work. Under these undisputed facts, was Meader an independent contractor ?

Many cases are cited in the briefs and are in the books on similar propositions, but they are of little aid, as each case must stand on its own facts.

The rule is, as laid down in Cooley on Torts (3d Ed.), Section 1092: “Where a contract is for something that may lawfully be done, and is proper in its terms, and there has been no negligence in selecting a suitable person to contract with in respect to it, and no general control is reserved either as respects the manner of doing the work or the agents to be employed in doing it, and the person for whom the work is to be done is interested only in the ultimate result of the work, and not in the several steps as it progresses, the latter is neither liable to third persons for the negligence of the contractor as his master, nor is he master of the persons employed by the contractor, so as to be responsible to third persons for their negligence.”

In Thompson on Negligence, Section 622, the au-, thor says: “An independent contractor, within the meaning of this rule, is one who renders service in the course of an occupation, representing the will of his employer only as to the result of his work, and not as to the means by which it is accomplished. ’ ’

In 2 Mechem on Agency (2d Ed.), Section 1870, the author says: “An independent contractor is one who carries on an independent business, in the course of which he undertakes to accomplish some result or do some piece of work, for another, being left at liberty in general to choose his own means and methods, and being responsible to his employer only for the results which he has undertaken to bring about.”

This rule is approved in City of Cincinnati v. Stone, 5 Ohio St., 38, and in Hughes v. Railway Co., 39 Ohio St., 461.

Applying these rules to the facts of this case, the only interest that the publishing company had in the engagement of Meader was to have him take his machine and deliver the Posts at the stations indicated by a slip attached to each bundle. It was only interested in the result. Meader could appear or not as he saw fit. No directions or route of travel were given. He was not limited in his time in making the delivery. In other words, the Post Publishing Company reserved no control over the manner or method of performing the service required.

Testing the case by these rules, our conclusion is that Meader was an independent contractor, and, since there was no conflict in the evidence on the point, the trial court should have sustained the motion of the defendant, the Post Publishing Company, for an instructed verdict.

A case directly in point is Gall v. Detroit Journal Co., reported in 191 Mich. at page 405, 158 N. W., 36, 19 A. L. R., 1164. The facts are in substance the same as in the instant case, with the single exception that the agreement for the service was in writing. Defendant in error in the brief undertakes to distinguish this case on the proposition that where the agreement is verbal, that, in itself, makes the proposition a jury question; that the court cannot construe a verbal contract as a matter of law.

In the case of Gall v. Detroit Journal Co., supra, the Supreme Court held under the facts that Gall was an independent contractor. In the course of the opinion the court said: “No reason is seen why a man may not agree, as an independent contractor, to deliver all, or part, of the papers printed by a publisher, of the groceries sold by a groceryman, or of the goods sold by a merchant, if the method and means for doing so are left entirely to him without any right of control by the employer. In the instant case either party had the right to terminate the contract at pleasure.” We are in accord with this decision.

There are other errors presented in the record, but, since this disposes of the case, it is unnecessary to pass upon the same.

Judgment for plaintiff in error.

Buchwalter, P. J., and Cushing, J., concur.  