I think the trial court was right in entering judgment for defendant Summers, notwithstanding the verdict. Defendant Kass had been using his own truck for local deliveries of cattle, grain, and other articles. He "made a few hauls of beer" for defendant Summers in the summer of 1935, but "hauled no beer in the winter of *Page 24 1935 because John (Summers) had his own trucks," although he "did make a few deliveries." In the summer of 1936, when the accident occurred, the deliveries were made for Summers as well as for others. Kass was paid by Summers "so much a case, depending on distance." Kass testified that at the time of the accident he was in the act of hauling beer for one Larson of Benton Harbor. It appears that Larson's beer was taken from an Ann Arbor brewery by Summers to his own warehouse, and then defendant Kass was paid by Larson for hauling it to Benton Harbor. At the time of the accident, the cargo consisted of about 75 cases of Larson's beer and about 10 cases of another brand of beer not originating from Ann Arbor which belonged to Summers and for some unexplained reason had been left on Kass' truck from the previous day. Kass testified that he had no instructions for the disposition of Summers' 10 cases. Kass had hauled for Larson before, stating that at the time of the accident he was making arrangements to haul right from a brewery to Benton Harbor without the intervention of Summers. Kass testified that on the day of the accident Summers had nothing to do with the load on his truck.
Defendant Summers testified that Kass trucked for him only on job lots, and was paid only by the case, distances being averaged, a little more being paid for longer distances than for shorter hauls. The beer to be delivered at the time of the accident had been ordered from Ann Arbor by Larson, and Summers called for it there the day before and took it to his warehouse in his own truck. As to payment, Summers testified:
"He (Larson) paid me separate from him for making the delivery. I had nothing to do with it at *Page 25 all. * * * He was to pay me and he did pay me for bringing it from the brewery. Yes, sir. It was to go on to him. I didn't order it. Well, he had a contract job just the same as I did with Kass to pull that beer."
Summers denied that his 10 cases were to be left at any of his customers on the way to Benton Harbor, and even denied knowing they were on the truck although he did state that some beer was ordinarily left on the truck over night.
Recognizing the difficulty counsel must have in proving this element of the case solely by cross-examination of the opposite parties, I do not think the testimony taken most favorably for plaintiff establishes an employment relation between Kass and Summers on the date of the accident. The employer's right of control is the essence of the relation (Stevens, "The Test of the Employment Relation," 38 Michigan Law Review, 188).
"The general test in each case is whether defendant retained the right of control over means employed in performing the services contracted, as distinguished from the result." (Cooper v. Interstate Motor Freight Co., 264 Mich. 131).
The load was on its way to Benton Harbor at the direction of the owner of the cargo, and the undisputed testimony establishes that the service was rendered by Kass rather than Summers, for any payment was to be made directly to Kass for his own benefit. The unexplained, perhaps suspicious, presence of 10 cases belonging to Summers, for which no instructions were given, does not warrant an inference of any right of control on his part, `even if we were to assume that an employment relation did exist whenever Kass was engaged in delivering *Page 26 Summers' wares. The circumstances do not point to the result with a sufficient degree of reliability to warrant submission of the issue to the jury.
Plaintiff contends that an issue of fact as to Summers' ownership of the truck was established by a written statement made after the accident, in which Kass stated that the truck was sold by him to Summers Distributing Company "just a day or so before the accident." This statement was excluded on objection, but part of it was read on cross-examination. While this futile attempt to serve Kass' own interest might be used to impeach him as a witness, it could in no way bind Summers on the question of ownership. A vendee is not bound by statements made by his vendor subsequent to the sale without his knowledge or consent. Kovich v. Church Church, Inc., 267 Mich. 640. InMcAvon v. Brightmoor Transit Co., 245 Mich. 44, we affirmed the ruling of the trial court excluding testimony as to what a driver stated after an accident "in reference to the owner of the truck." In Sexton v. Balinski, 280 Mich. 28, it was held to be error to permit testimony that the driver of a car stated at the police station about 15 minutes after the accident occurred that the other defendant in the case was the owner of the car. As to the owner, we pointed out that the statement was clearly hearsay. In the case before us, if this improperly admitted statement is excluded from consideration, there is nothing upon which to support a verdict that Summers was the owner of the truck at the time of the accident.
The judgment should be affirmed, but without costs, as no brief was filed by Summers.
BUSHNELL, C.J., concurred with BUTZEL, J. The late Justice POTTER took no part in this decision. *Page 27