Peterson v. McLean Trucking Company

103 S.E.2d 479 (1958)

248 N.C. 439

John Jacob PETERSON v. McLEAN TRUCKING COMPANY.

No. 377.

Supreme Court of North Carolina.

May 21, 1958.

Clyde C. Randolph, Jr., Robert L. Styers, Winston-Salem, for plaintiff appellant.

Spry, White & Hamrick, Deal, Hutchins & Minor, Winston-Salem, for defendant appellee.

WINBORNE, Chief Justice.

Plaintiff, the appellant, states in his brief filed on this appeal that matters relating to proof of negligence and damages are not presented for review, but that "the question is simply this: Do the admitted facts bar the plaintiff's action as a matter of law?" The answer is "Yes". For, basically, *482 on this question there arises, as stated by defendants appellees, the question as to "whose employee was Brower at the time he injured plaintiff?" The admitted facts shown in the record of case on appeal respond "CMX".

The answers to these questions are found in the opinions of this Court in the cases of: Wood v. Miller, 226 N.C. 567, 39 S.E.2d 608; Brown v. L. H. Bottoms Truck Lines, 227 N.C. 65, 40 S.E.2d 476; Roth v. McCord, 232 N.C. 678, 62 S.E.2d 64. See also McGill v. Bison Fast Freight, 245 N.C. 469, 96 S.E.2d 438.

All these involved agreements strikingly similar to the agreement here in hand: (1) Whereby lessor-owner leased truck and drivers to lessee; (2) Provisions whereby lessee took complete control of truck for the particular trip involved; (3) Stipulation that the lessee would attach its identification mark on the truck, and (4) specifying the above with particularity.

Indeed, as stated in Wood v. Miller, supra [226 N.C. 567, 39 S.E.2d 609]: "The relationship between the driver of the truck and the defendant is determinable, in the main, from the terms of the trip lease agreement. This is a question of law under applicable principles of law." And the Court then goes on to say: "It is generally held that the relationship of master and servant is created when the employer retains the right to control and direct the manner in which the details of the work are to be executed and what the laborer shall do as the work progresses," citing and quoting from opinion in Hayes v. Board of Trustees of Elon College, 224 N.C. 11, 29 S.E.2d 137.

In the light of these applicable principles, the admitted facts point unerringly to the conclusion that CMX, the lessee, expressly assumed direction and control of the operation of the truck in question for the duration of the term of the lease. And while it is true that McLean was to pay Brower, it appears that it was to be reimbursed therefor by CMX. Such an arrangement does not nullify the legal effect of the action of CMX in assuming the control and direction of the operation of the truck and responsibility to the public for its operation. See Shapiro v. City of Winston-Salem, 212 N.C. 751, 194 S.E. 479; also Wood v. Miller, supra.

For reasons stated the judgment from which appeal is taken is

Affirmed.