Tilburne v. Burton

NOURSE, J.

Plaintiffs sued for damages arising from a collision between an automobile operated by plaintiffs and a truck operated by defendant Gepperd, who, plaintiffs contended, was an agent and employee of defendant Burton. The cause was tried before a jury and resulted in verdict in favor of plaintiffs against defendant Gepperd and against the plaintiffs as to defendant Burton. The plaintiffs appeal from the portion of the resulting judgment adverse to them. The appeal is presented on a bill of exceptions.

At the time of the collison the truck was owned by defendant Burton, but was rented by him to the city of Los Angeles under a written contract whereby Burton undertook to furnish the city seven trucks with drivers for the collection of refuse. The proposal and specifications under which the contract with the city was made (offered in evidence by defendant as a part of the agreement) called upon the defendant to furnish the machines and provide drivers for them, to furnish all fuel and supplies, to make all necessary repairs and to provide garage. Every driver was required to perform his work in a satisfactory manner and as may be specified by the city engineer, and “any driver whose services are not satisfactory to the city engineer shall be discharged by the contractor” (defendant). Payment was to be made at the rate of $10.85 per day for each truck and driver. The contractor had the power to employ and discharge the driver and was alone responsible for the fixing and payment of his wages. He was also required to carry indemnity insurance “covering his full liability of compensation under said act (Workmen’s Compensation

[629]

Act [Stats. 1917, p. 831]) for any person injured while performing any work” under the contract.

The city undertook to direct the routes the drivers should cover in collecting the rubbish and general directions were given by the city’s representative to all drivers that they should zigzag from the right-hand side of the road to the left and back again to pick up the rubbish as they found it. The defendant Burton testified that he satisfied himself that this particular driver was a competent and courteous driver and that he instructed all his drivers to be careful and prudent and that he would discharge them if they were reckless.