In its opening brief, appellant states:
"In this case the sole question is whether David Bunney, the uncle of the respondent, in moving this truck, was the servant of the appellant, or an independent contractor, and the answer to this question will decide all the assignments of error." (Italics mine.) *Page 509
Disposing of this issue, the majority say:
"His status, therefore, if not exactly that of an independentcontractor in the usual sense, was at any rate one which is governed by the rules applicable to that relationship rather than by the rules applicable to master and servant, or principal and agent." (Italics mine.)
In thus holding, as a matter of law, the majority, as I view it, have invaded the province of the jury. The issue tendered by plaintiff in pleading and proof was briefly this: That the deal was consummated on January 4th; that Pound Motor Company acquired title to the truck and body on that date; that appellant, on that day, inspected the truck and body at or near the Bunney premises, where it then and there accepted delivery. The theory of plaintiff is, therefore, simply this: That, on January 5th, David Bunney was operating a motor vehicle belonging to Pound Motor Company; that the presumption follows that he was acting for the owner; that, unless this presumption is overcome by disinterested testimony, a case is made for submission to the jury.
To the issue so tendered, and the theory so presented, appellant countered with the theory of independent contractor. At its request, the court instructed the jury as follows:
"Before the plaintiff in this case can recover from the defendant Watkins Motor Company, he must prove by a preponderance of the evidence that David Bunney was a servant and agent of said defendant Motor Company. If, on the other hand, David Bunney, in the performance of his duty to deliver the truck to said Watkins Motor Company, was acting as an independent contractor, then said Watkins Motor Company would not be liable for any negligent act of David Bunney.
"A servant or employee is a person employed to perform service for another in his affairs, and who *Page 510 with respect to his physical conduct in the performance of the service is subject to the other's control or right to control the manner in which such service is performed. On the other hand, an independent contractor is one who, carrying on an independent business, contracts to do a piece of work according to his own methods and without being subject to the control of his employer as to the means by which the result is to be accomplished, but only as to the result of the work. If the defendant David Bunney was an independent contractor at the time of the accident complained of, defendant Pound Motor Company would not be liable to the plaintiff in this case."
Now, the only evidence in support of the theory presented by this instruction comes from the lips of the defendants. In other words, the only evidence tending to rebut the presumption that David Bunney was acting as servant or agent of Pound Motor Company came from the mouths of interested witnesses. I believe our decisions are uniform in holding that the relationship between the operator and the owner of a motor vehicle, under such a state of evidence, is a question to be determined by the jury.Moore v. Roddie 103 Wash. 386, 174 P. 648; Mitchell v.Churches, 119 Wash. 547, 206 P. 6, 36 A.L.R. 1132; McMullenv. Warren Motor Co., 174 Wash. 454, 25 P.2d 99; Templin v.Doan, 187 Wash. 68, 59 P.2d 1110. In the McMullen case, the court stated the rule as follows:
"When the respondents showed that the appellant was the owner of the automobile, they made a prima facie case to the effect that, at the time of the accident, the vehicle was in the possession of the owner, and that whoever was driving it was doing so for such owner. . . . The prima facie case so made means only that the case had proceeded upon sufficient proof to that stage where it must be submitted to the jury, unless theprima facie case should be met by the testimony of disinterestedwitnesses. . . . The prima *Page 511 facie case, however, based upon the presumption, is not met bythe testimony of interested witnesses, and, as against suchwitnesses, the presumption will take the case to the jury." (Italics mine.)
In the light of the cited decisions, the majority, in holding, as a matter of law, that the relationship between David Bunney and Pound Motor Company was not that of master and servant, has trenched upon the domain of the jury. I therefore dissent.
MAIN, MILLARD, and DRIVER, JJ., concur with BLAKE, J.