Baker v. Magnolia Petroleum Co.

Citations

• 111 Kan. 555
• 207 P. 789
• 1922 Kan. LEXIS 294

Syllabus

<p>SYLLABUS BY THE COURT.</p> <p>1. Collision — Automobile and Truck — Injuries—Demurrer to Plaintiff’s Evi- ■ dence Properly Overruled. Certain evidence considered and held competent.</p> <p>2. Same. In an action to recover damages against defendant caused by a collision between an automobile in which the plaintiff was riding and a truck used in the business of the defendant, held, there was no error in overruling a demurrer to the evidence.</p> <p>3. Same — Whether Driver of Truck was Servant of Defendant was Question for the Jury. The defense to the action was that the truck belonged to an independent contractor who was engaged in the truck business and under a contract furnished the truck and driver and the gasoline, for which the company paid him twenty dollars a day. The defendant’s evidence showed that it was an oral contract and that nothing more was said than that the company wanted the truck to go to its leases wherever the work was being done. Sometimes one driver was sent by the owner of the truck and sometimes another. The driver reported each morning and gathered up the men in the employ of the defendant and hauled them from town to the place in the country where the defendant was laying a pipe line. The driver stayed at the pipe line and was sent occasionally for drinking water, and transported the tools from place to place. He was sometimes sent back to town on errands. The defendant’s testimony tended to show that the boss of the gang of workmen gave the driver no directions as to the way he drove the truck. The driver himself testified that the boss who had charge of the gang directed the operation of the truck and told him what to do and where to go, and when. Held, that the question whether the .driver of the truck was a servant of the defendant (although he continued to be the general servant of the contractor and paid by the latter for his work) was a question for the jury to determine from a consideration of all the circumstances under which t