{ "id": 8624258, "name": "JOHN JACOB PETERSON v. McLEAN TRUCKING COMPANY", "name_abbreviation": "Peterson v. McLean Trucking Co.", "decision_date": "1958-05-21", "docket_number": "", "first_page": "439", "last_page": "443", "citations": [ { "type": "official", "cite": "248 N.C. 439" } ], "court": { "name_abbreviation": "N.C.", "id": 9292, "name": "Supreme Court of North Carolina" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "194 S.E. 479", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 0 }, { "cite": "212 N.C. 751", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8619504 ], "opinion_index": 0, "case_paths": [ "/nc/212/0751-01" ] }, { "cite": "29 S.E. 2d 137", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "224 N.C. 11", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8594820 ], "opinion_index": 0, "case_paths": [ "/nc/224/0011-01" ] }, { "cite": "96 S.E. 2d 438", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "245 N.C. 469", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8613205 ], "opinion_index": 0, "case_paths": [ "/nc/245/0469-01" ] }, { "cite": "62 S.E. 2d 64", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "232 N.C. 678", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8612733 ], "opinion_index": 0, "case_paths": [ "/nc/232/0678-01" ] }, { "cite": "40 S.E. 2d 476", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "227 N.C. 65", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8621158 ], "opinion_index": 0, "case_paths": [ "/nc/227/0065-01" ] }, { "cite": "39 S.E. 2d 608", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "226 N.C. 567", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8622490 ], "opinion_index": 0, "case_paths": [ "/nc/226/0567-01" ] } ], "analysis": { "cardinality": 527, "char_count": 9661, "ocr_confidence": 0.581, "pagerank": { "raw": 8.980369148333886e-08, "percentile": 0.5026011168990934 }, "sha256": "83a023e06dbe6e5609910388fa538c12474eadcaca31dcec0dd158d3ba86032b", "simhash": "1:df0fc09f88ccced1", "word_count": 1607 }, "last_updated": "2023-07-14T22:38:24.992419+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "JOHN JACOB PETERSON v. McLEAN TRUCKING COMPANY." ], "opinions": [ { "text": "Winborne, C. J.:\nPlaintiff, 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 \u201cthe question is simply this: Do the admitted facts bar the plaintiff\u2019s action as a matter of law?\u201d The answer is \u201cYes\u201d. For, basically, on this question there arises, as stated by defendants appellees, the question as to \u201cwhose employee was Brower at the time he injured plaintiff?\u201d The admitted facts shown in the record of case on appeal respond \u201cCMX\u201d.\nThe 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. 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. Freight, 245 N.C. 469, 96 S.E. 2d 438.\nAll these involved agreements are 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.\nIndeed, as stated in Wood v. Miller, supra: \u201cThe 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.\u201d And the Court then goes on to say: \u201cIt 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,\u201d citing and quoting from opinion in Hayes v. Elon College, 224 N.C. 11, 29 S.E. 2d 137.\nIn 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. Winston-Salem, 212 N.C. 751, 194 S.E. 479; also Wood v. Miller, supra.\nFor reasons stated the judgment from which appeal is taken is\nAffirmed.", "type": "majority", "author": "Winborne, C. J.:" } ], "attorneys": [ "Clyde C. Randolph, Jr., Robert L. Styers for plaintiff, appellant.", "Spry, White & Hamrick, Deal, Hutchins & Minor for defendant, appellee." ], "corrections": "", "head_matter": "JOHN JACOB PETERSON v. McLEAN TRUCKING COMPANY.\n(Filed 21 May, 1958.)\nAutomobiles \u00a7 54a: Master and Servant \u00a7 41\u2014\nUnder tbe terms of tbe contract in question, lessor was to provide personnel and equipment for trips authorized by lessee\u2019s franchise, the drivers to be under complete control of tbe lessee\u2019s supervisor and the vehicles to be marked with lessee\u2019s identification on such trips. Plaintiff, an employee'of lessee, was injured on a trip under lessee\u2019s franchise. Tbe driver was paid by lessor, but lessee was required by the contract to reimburse lessor for his wages. Held: The driver, on the trip in question, was an employee of lessee, and plaintiff, having recovered compensation of lessee under the Workmen\u2019s Compensation Act, may not maintain an action against lessor at common law as a third person tort feasor.\nAppeal by plaintiff from Prey&r, J., First Week of September 23, 1957 Term of Foesyth.\nCivil action to recover for personal injury and property damage as result of alleged negligence of one Richard Dewey Brower, 11 August, 1955, in operation of a tractor-trailer in which plaintiff was riding, on Virginia State Highway 100, approximately five miles south of Pulaski, Virginia, \u2014 he, the said Brower, being at the time an alleged employee of defendant, \u2014 allegedly driving said tractor-trailer under the supervision, direction and control of defendant \u2014 in manner stated.\nDefendant, in answer filed, denies in material aspect the allegations of the complaint.\nAnd for further answer sets up three further' defenses. \u2022\nPlaintiff replies.\nAfter the pleadings were filed the parties made stipulations of fact. And thereupon defendant moved that the action be dismissed for that the admissions set forth in the pleadings and in the stipulations show:\n1. * * \u201cThat the allegedly negligent driver stood in no such relationship to defendant as to make the doctrine of respondeat superior applicable.\u201d\n2. * * \u201cthat the present action is barred by the provisions of Chapter 97 of the General Statutes of North Carolina, being the Workmen\u2019s Compensation Act, and in particular Sections G.S. 97-9 and 97-10 thereof for that\u201d (a) \u201cthe allegedly negligent driver falls within the class granted immunity from common law actions such as this\u201d * * * and (b) \u201cdefendant clearly falls within the class granted immunity from common law actions such as this\u201d;\n3. * * * that \u201cno issue based upon the doctrine of respondeat superior\u201d is left \u201cto be submitted to the jury for that it is established as a matter of law that defendant cannot be held liable for the negligent acts set forth in the complaint\u201d;\nAnd 4. For that under the admission so stated \u201cno cause of action exists against defendant.\u201d\nThe stipulations of the parties are substantially these:\nAt the time of the injury in question the plaintiff was riding in a tractor-trailer unit leased from defendant by Carolina Motor Express Lines, Inc., hereinafter referred to as CMX, and driven by one Richard Dewey Brower. Plaintiff was the head driver of the unit and Brower was his assistant.\nPlaintiff was employed by CMX, a bankrupt corporation in receivership with Earl R. Cox as Receiver.\nDefendant, hereinafter referred to as McLean, is a North Carolina corporation which has a contract with Earl Cox as Receiver, whereby the Receiver \u201cagrees to employ McLean Trucking Company to manage the properties and operations of Carolina Motor Express Lines, Inc.,\u201d in consideration of $1,000 per month.\nUnder the terms of the working agreement between the two corporations, McLean was to provide personnel and equipment for CMX operations. All drivers for CMX were originally trained by McLean but separate seniority lists for the drivers were maintained and, once trained, the CMX drivers were under complete supervision of a CMX supervisor; whereas McLean drivers were under direction and control of a McLean supervisor. When the employment of a driver was transferred from one corporation to the other, he was placed at the bottom of the seniority list. CMX business records, personnel files, payrolls, tax records, equipment, and certain of its employees were maintained separately from those of McLean. CMX and McLean operated under separate franchises issued by the Interstate Commerce Commission and McLean had no authority to operate over the. route assigned to CMX. At the time of the accident the unit was being operated under CMX franchise and was so marked.\nPlaintiff was originally a driver for McLean, but had been transferred to CMX approximately one year prior to the accident. And as to employment status of Brower at the time of the accident, it is stipulated that \u201con August 1, Brower requested through the McLean supervisor that he be transferred to CMX. Brower was told that the request would be taken up with the supervisor of drivers for CMX. Thereafter, on or about August 2, \u25a0 1955, Brower was assigned to trips by the CMX supervisor, and he had made two or three trips for CMX as an assistant driver prior to the date of the accident. Brower was never notified that he was a permanent employee of CMX.\u201d The accident occurred August 11, 1955, after plaintiff and Brower had been operating the unit together on the CMX route since August 7, 1955. \u201cDuring all of these trips beginning August 7, 1955, both Brower and Peterson were acting in accordance with instructions of the CMX supervisor.\u201d\nPlaintiff was on the payroll of CMX and Brower was on the payroll of McLean; but \u201cMcLean charged the entire amount disbursed to or'for Brower on account of said trips to special accounts set up and maintained to set apart all expenses incurred in CMX operations in accordance with usual practices. The amount so disbursed to Brower by McLean was reimbursed to McLean by CMX.\u201d\nUnder a lease agreement between CMX and McLean, McLean agreed to lease certain trucks and equipment to CMX, the possession and control of which was to be vested exclusively in CMX. And it was to furnish all services and supplies necessary to operate the property, including \u201call wages and charges against wages for all persons concerned in operation, maintenance, direction, or otherwise concerned with said property\u201d and \u201cany and all losses and expenses arising from the method or manner of the operation and maintenance of said property by the lessee.\u201d\nPlaintiff has applied for and received benefits under the Workmen\u2019s Compensation Act through CMX, and now sues McLean at common law.\nThe determinative question, therefore, as stated by appellee, is: Whose employee was Brower at the time he injured plaintiff?\nThe cause heard, out of term, with the consent of the parties, and upon the pleadings and stipulations made, and upon said motion by defendant, the trial court being of opinion that \u201cplaintiff has no cause of action or remedy at common law against the defendant\u201d so adjudged, and dismissed the action at the cost to plaintiff.\nPlaintiff excepted to the entering of the judgment, and appeals to Supreme Court and assigns error.\nClyde C. Randolph, Jr., Robert L. Styers for plaintiff, appellant.\nSpry, White & Hamrick, Deal, Hutchins & Minor for defendant, appellee." }, "file_name": "0439-01", "first_page_order": 481, "last_page_order": 485 }