41 Wn.2d 474, WALTER E. NAWROCKI, Respondent, v. J. T. COLE, Appellant

[No. 32170. Department Two.      Supreme Court      November 13, 1952.]

WALTER E. NAWROCKI, Respondent, v. J. T. COLE,
                               Appellant.1

[1] MASTER AND SERVANT - INDEPENDENT CONTRACTOR - DEFINITION. An independent contractor is one who, in the pursuit of an independent business, undertakes to perform a specified piece of work or to render a particular service for another, without submitting to control in the manner of performance, the principal question being who has the right to control the manner of doing the work; and the independence of the relation is not affected by a reservation by the one ordering the work of a right to supervise it merely to determine whether or not it is done according to the contract.

[2] APPEAL AND ERROR - REVIEW - VERDICT. On appeal from a judgment upon a verdict in favor of the plaintiff, the question before the supreme court is whether or not there is sufficient evidence or reasonable inference from the evidence to justify but not compel a finding by a jury adverse to the defendant; and in answering this question the supreme court cannot weigh the evidence and must view it, and all reasonable inferences from it, most favorably to the plaintiff.

[3] MASTER AND SERVANT - INDEPENDENT CONTRACTOR - FACTS ESTABLISHING RELATIONSHIP. A garage mechanic became an independent contractor as a matter of law when he accepted a car for repair, it appearing that the owner did not know what had to be done and that the mechanic was free from his direction or control regarding the details or the manner of repair; and the owner's request that the car be tested to determine whether the work of repair was completed did not change this relationship and it prevailed until the car was redelivered to the owner.

[4] AUTOMOBILES - LIABILITY FOR INJURIES - ACTIONS - EVIDENCE - PRESUMPTIONS - OWNERSHIP OF VEHICLE. In an action against a car owner for damages sustained when the car was struck in the rear by the plaintiff's car while the defendant's car was being driven by a garage mechanic who had been engaged to repair it and was testing it as part of the work of repair, the presumption arising out of the defendant's ownership of the car that the mechanic was an agent of the defendant cannot make a case for the plaintiff on the theory of agency, where the evidence introduced by the defendant that the mechanic was an independent contractor was uncontradicted, unimpeached, clear, and convincing.

[5] NEGLIGENCE - IMPUTED NEGLIGENCE - INDEPENDENT CONTRACTORS. The negligence of an independent contractor cannot be imputed to his principal.


1 Reported in 249 P. (2d) 969.

[1] See 75 A. L. R. 725; 27 Am. Jur. 486.

 Nov. 1952]          NAWROCKI v. COLE.               475

[6] AUTOMOBILES - AS DANGEROUS AGENCIES. An automobile is not per se a dangerous instrumentality; however, it may become such if it is so mechanically defective as to render it liable to become uncontrollable on the highway.

[7] SAME - LIABILITY FOR INJURIES - USE OF DEFECTIVE VEHICLE - EVIDENCE - SUFFICIENCY. On an issue as to whether a car owner was negligent in allowing it to go upon the highway in a defective condition, held that, under the undisputed evidence, he neither knew nor, as a reasonable man, should have known of the defect and of the reasonable likelihood that it would cause injury.

Appeal from a judgment of the superior court for Kittitas county, Whitfield, J., entered January 23, 1952, upon the verdict of a jury rendered in favor of the plaintiff, in an action for damages arising out of an automobile collision. Reversed.

Gavin, Robinson & Kendrick and Rode, Cook, Watkins &Orth, for appellant.

E. K. Brown and Kern & Dano, for respondent.

OLSON, J. -

A jury returned a verdict in favor of plaintiff for damages incurred in an automobile collision. Def endant's motions for judgment notwithstanding the verdict and for a new trial having been denied, judgment was entered on the verdict, and defendant has appealed. J. T. Cole is the sole defendant, his wife having died before the trial.

His appeal presents two principal questions: (1) Was a mechanic he employed to repair his car, and who was testing it on the highway when the collision occurred, an independent contractor, and (2) was defendant himself negligent in having his car driven on the highway when, as plaintiff alleges, "he knew that said automobile had serious motor trouble and might be stalled on said highway"?

During the evening in question, defendant and two guests were returning to Tacoma from Wilbur in defendant's automobile. As they approached Ellensburg, the motor ceased to function properly. It operated jerkily, and the car could be driven only at slow speeds, estimated by defendant to be from five or ten miles an hour to thirty or thirty-five miles an hour. It did not stop entirely, nor was it necessary to drive the car in low gear.

 476    NAWROCKI v. COLE.     [41 Wn. (2d)

Defendant arrived at a garage in Ellensburg late in the evening. He told the mechanic how the car had operated and asked him to find the trouble and repair it. The mechanic proceeded to work on the motor, and it was running smoothly when he presented a bill for his services. Defendant did not pay the bill or accept the car, but asked the mechanic to take it out on the highway and test it to be sure that it was operating properly.

The mechanic, accompanied by one of defendant's guests, then drove the car onto the main traveled highway leading out of Ellensburg. After he had gone about one mile, the motor again ceased to function properly, and it was impossible to accelerate the car. He then decided that the fuel pump was the source of the trouble, and, as he was returning to the garage, plaintiff, going in the same direction, drove his automobile into the rear of defendant's car. Plaintiff testified that, before the collision, defendant's car was stopped on the highway and that he saw no lights on it. Some rain had fallen during the evening, and the pavement was wet. Visibility was poor because of haze or fog in the vicinity of the collision.

[1] An independent contractor is one who, in the pursuit of an independent business, undertakes to perform a specified piece of work or to render a particular service for another, without submitting to control in the manner of performance. Smith v. Ludwig, 16 Wn. (2d) 155, 157, 132 P. (2d) 735 (1943), and case cited. The principal question is, who has the right to control the manner of doing the work? The independence of the relation is not affected by a reservation, by the one ordering the work, of a right to supervise it merely to determine whether or not it is done according to the contract. Seattle Aerie No. 1 of Fraternal Order of Eagles v. Commissioner of Unemployment Corn pensation and Placement, 23 Wn. (2d) 167, 172, 160 P. (2d)614 (1945), and cases cited. Whether the mechanic was a lessee of the garage or an employee of the owner of the garage, the relationship between himself and defendant or the relationship between his employer and defendant is

 Nov. 1952]          NAWROCKI v. COLE.               477

determined by the same rules, and the result will be the same in this case.

[2] The question before us is whether or not there is sufficient evidence or reasonable inference from the evidence to justify, but not to compel, a finding adverse to defendant by a jury. In answering this question, we cannot weigh the evidence and must view it, and all reasonable inferences from it, most favorably to plaintiff.

The evidence, so considered, establishes that the mechanic was engaged in an independent business, that of repairing automobiles. He undertook a specified piece of work, the repair of defendant's car. Defendant did not know what had to be done, and the mechanic was free from his direction or control regarding the details or the manner of repair. Defendant was concerned only with the result of the work and did not supervise it, except to request that the car be tested to determine whether the work of repair was completed. Neither defendant nor his guest, who rode with the mechanic during the test, specified or controlled the exact place or kind of test to be made. The test became part of the work of repair, and the mechanic did what he determined, from the test, was necessary to finish his job. Not until then did he complete his work, deliver the car to defendant, and receive his pay. See 5 Blashfield, Cyclopedia of Automobile Law & Practice (Perm ed.), 102 et seq., 2966.

[3] Upon these facts, the mechanic became an independent contractor, as a matter of law, when he accepted defendant's car for repair. Defendant's request that the car be tested did not change this relationship, as plaintiff contends, and it prevailed until the car was redelivered to defendant.

[4] This is true, even if we assume that consideration should be given to any presumption or inference of fact, arising out of defendant's ownership of the car, that the mechanic was an agent of defendant. The evidence introduced by defendant on this issue being uncontradicted, unimpeached, clear, and convincing, and not being met by

 478    NAWROCKI v. COLE. [41 Wn. (2d)

any evidence of plaintiff to the contrary, the presumption cannot make a case for plaintiff on this theory. Bradley v. S. L. Savidge, Inc., 13 Wn. (2d) 28, 63, 123 P. (2d) 780 (1942); McGinn v. Kimmel, 36 Wn. (2d) 786, 789 et seq., 221 P. (2d) 467 (1950), and cases cited.

[5] Therefore, because the negligence, if any, of the mechanic, an independent contractor, cannot be imputed to defendant, if the judgment can be sustained, it must be upon the alleged negligence of defendant himself.

[6] An automobile is not per se a dangerous instrumentality. Wellons v. Wiley, 24 Wn. (2d) 543, 551, 166 P. (2d)852 (1946), and case cited. It may become such if it is so mechanically defective as to render it liable to become uncontrollable on the highway. Robbins v. Hansen, 184 Wash. 677, 683, 52 P. (2d) 908 (1935).

The case at bar is not pleaded on a theory of strict or absolute liability. It is rested upon the alleged negligence of defendant. The standard of conduct required of defendant upon this theory of the case may be defined by stating the essential elements of plaintiff's proof, if he is to recover. They are that, at the time defendant's automobile went upon the highway, (1) it was defective, (2) defendant knew or, as a reasonable man, should have known of the defect and of the reasonable likelihood that it would cause injury, (3) the defect proximately caused the injury to plaintiff, and (4) the damages he sustained.

[7] Upon this issue, the evidence is undisputed that defendant's car did not stop on the highway, nor did its lights cease to function, before he delivered it to the garage for repair. The motor was operating smoothly, and all of the lights, both front and rear, were burning when the mechanic drove the car out of the garage to test it. Viewing the evidence most favorably to plaintiff, we find no fact or reasonable inference from the facts or circumstances in this case, to sustain a verdict adverse to defendant upon the second essential element of plaintiff's proof.

Neither of the issues we have discussed should have been submitted to the jury. The judgment is reversed, and the

 Nov. 1952]              STELL v. STATE.           479

cause is remanded to the trial court for the entry of judgment in favor of defendant, notwithstanding.the verdict of the jury.

SCHWELLENBACH, C. J., HILL, HAMLEY, and FINLEY, JJ., concur.