I dissent. Probably a brief review of what I understand the facts to be, as disclosed by the record, will give a better understanding of my views respecting the questions presented on this appeal.
It appears that the Wasatch Coal Company was conducting a retail coal business at Salt Lake City, Utah. At the time of the alleged accident it had no teams of its own with which to deliver coal to its customers. The Independent Ice Company was the owner of teams and wagons, and during the *113summer months was engaged in selling and delivering ice. In the fall of 1917 a contract or agreement was made between the coal company and the ice company whereby the latter undertook, for an agreed sum per ton, to deliver coal for the' defendant coal company to its various customers within Salt Lake City. The arrangement seems to have been that whenever the coal company desired teams it would telephone the ice company, and thereupon the ice company would send its teams, together with drivers and wagons, except the beds or boxes, to the office of the coal company, where the driver would receive directions as to the time of delivery, the amount of coal to be delivered, and the addresses to which it should be delivered. If the coal was delivered C. O. D., the drivers collected the money and returned it to the coal company. When the coal was directed to be so delivered, and the customer failed to pay, the driver would return the coal to the yards of the coal company. After the day’s work the 'drivers would return the teams to the stables of the ice company, and would take the teams from there the following day. It also appears that the ice company employed the drivers, paid them an agreed compensation, discharged them at its pleasure, and that the coal company in no way directed or suggested the employment of any one as a driver other than if any particular driver was objectionable notice was usually given to the ice company of that fact and some other driver would be substituted. On or about November 2, 1917, one of the teams of the ice company was delivering coal for the coal company, and, as directed by the manager of that company, attempted to deliver a load of coal at an address given by said company. In attempting to pass from the street over the sidewalk to the residence where the coal was to be delivered the wagon became so mired in the dirt that the team could not pull it over the walk. Thereupon the driver unhitched the team, left the wagon tongue extending partially across, the paved sidewalk, placed no lights or guards around it, and left it in that condition overnight. In the early morning following plaintiff ran over the end of the tongue, and was thrown to the pavement, and received the injuries complained of. No *114officer or employé of either company, except the driver, had any knowledge of the condition in which the loaded wagon had been left until the following day.
At the conclusion of plaintiff’s testimony the court granted a motion for nonsuit made by the defendant ice company. The jury returned a verdict against the coal company. That company appeals. It failed, however, to serve- notice of appeal upon its codefendant, the ice company. The respondent, plaintiff below, now moves to dismiss the appeal, and urges such failure to serve notice of appeal upon the ice company as grounds therefor. That motion, in my judgment, should be granted.
The complaint charges the defendants jointly with the negligence that caused the injury. Both defendants denied the negligence as well as liability. The record in this case clearly shows that either the defendant ice company or the defendant coal company is responsible for the negligence that caused the injury. There can, in my judgment, be no question about that. The tongue of the wagon was negligently left by the driver so as to cause the injury. At that particular time the driver sustained such relationship to either the ice company or the coal company as would make one of such defendants liable for his' negligent acts. There is nothing in the record' tending to show that both defendants sustáined such relationship to the driver as to make them both either individually or jointly liable. Admittedly the driver was in the general employ of the ice company. If it should be determined by this court that the coal company, appellant, is not liable, it would indisputably follow that the ice company would be answerable for the consequences of the driver’s negligent act. Of course, the driver would be personally liable. The defendant ice company succeeded in convincing the trial court that it was not liable. That the court determined as a legal proposition upon granting the ice company’s motion for non-suit. Such was not a trial or final determination upon the merits of the ice company’s liability. Williams v. Nelson, 45 Utah, 255, 145 Pac. 39. Under the provisions of Comp. Laws Utah 1917, section 6484, the plaintiff could within the time *115specified in that section, institute another action against the ice company notwithstanding the granting of the nonsuit in this action. The presumption is always indulged, and rightly so, that a judgment debtor is solvent and will pay any judgment regularly rendered and entered against him. The af-firmance of the judgment against the coal company and the payment of the same would be a complete defense to any action the plaintiff might thereafter prosecute against the ice company for the alleged negligent act. Notwithstanding the ruling of the district court that the ice company is not liable, and notwithstanding that if this court, should affirm the judgment against the coal company and that judgment should be paid, as the ice company has a right to assume that it will be, and notwithstanding that under the admitted facts in this case that if the coal company is not liable the ice company is and can be subjected to a new action, the majority opinion is that the ice company has no interest in the appeal and is in no sense an adverse party. Such a conclusion, in my judgment, contravenes the principle or rule announced by this court in Griffin v. S. P. Co., 31 Utah, 299, 87 Pac. 1092, where the court, speaking through Chief Justice McCarty, says:
“We are of the opinion, and so hold, that unless it affirmatively appears from the record .that a party to an action would not be injuriously affected by a reversal of the case, such party must be served with notice in case an appeal is taken, otherwise this court can acquire no jurisdiction over the action except to dismiss the appeal, and thereby affirm the judgment appealed from.”
In Langton Lime & Cement Co. v. Peery, 48 Utah, at page 115, 159 Pac. at page 50, the test for the determination of who are adverse parties is stated by Justice Frick in the following language:
‘•‘This court, by an unbroken line of decisions, has held that all the parties to an action who may be adversely affected by a modification or reversal of the judgment are adverse parties under our statute, and must be made parties to the appeal either as appellants or respondents.”
Naturally the converse of that proposition would be true, as pointed out in the majority opinion in the quotation taken from 48 Utah, at page 112, 159 Pac. 49,
*116The facts in the Griffin Case, supra, were that the defendant railroad company and one Austin were jointly charged in the complaint with the negligence that caused the death of plaintiff’s intestate. Austin was served with summons, but failed to plead or further appear in the action, and default was entered against him. The railroad company answered, and a general verdict was returned by the jury against both defendants. The railroad company appealed, but failed to servp notice upon its codefendant. This court dismissed the appeal, and assigned as one of the reasons for so doing that a reversal might injuriously affect Austin, and this court could not indulge the presumption that it would not. In the present case both defendants are jointly charged with the commission of the negligent act. During the trial the ice company had judgment in its favor by the court granting its motion for nonsuit. I confess my inability to follow the reasoning whereby the conclusion is reached that one defendant jointly charged with another, but who has judgment entered against him, is any more an interested or a necessary party than one who is also jointly charged with another with the negligent act in question, but who is successful in having a judgment entered and rendered in his favor, or that the latter thereby ceases to be an adverse party to an appeal from the judgment. Especially does that reasoning to me seem fallacious in view of the fact that under the provisions of our Code, and under the admitted facts in this record, such successful defendant would be liable to be sued in a new action for the same negligent act. In my judgment the latter is an adverse party, and is interested in having the judgment of the lower court affirmed. Such, in fact, was the holding of the Supreme Court of Oklahoma under a statute similar to ours, in Humphrey et al. v. Hunt, 9 Okl. 196, 59 Pac. 971. In that case Maggie Hunt brought action against Lewis Humphrey and eight others, including one Fred Belt, to recover damages for the death of her husband. At the trial a verdict was had and judgment entered against six of the defendants, and a verdict and judgment in favor of Belt and against plain-tiffv The defendants against whom judgment had been en*117tered appealed, but did not serve notice of appeal upon Belt. Tbe appeal was dismissed on tbe ground tbat appellants bad failed to serve notice upon all tbe adverse parties. The court assigns as a reason for such ruling that Belt was entitled to be made a party so that be could present to the appellate court any reasons be might have why tbe judgment should be affirmed. No sound reason, in my judgment, is given in the prevailing opinion, nor in the authorities cited therein, why the conclusion of the Oklahoma court should not be controlling here.
A like ruling was made by the Supreme Court of California in Bullock v. Taylor, 112 Cal. 147, 44 Pac. 457. True, that action was for breach of contract against three defendants claimed to have executed the contract as partners. Nonsuit was granted as to two of the defendants and judgment was against the other. The defendant against whom judgment was rendered served notice of appeal on the plaintiff only. On the appeal one of the errors assigned was the granting of the motion for nonsuit of appellant’s eodefendants. The appellate court dismissed the appeal, holding that jurisdiction had not been acquired, and that the defendants who had been taken out of the case by granting the nonsuit would be adversely affected by a reversal of the judgment. I can see no difference in principle between an action of that character and the one now under consideration.
In the present case the appellant’s third assignment of error is as follows:
“The court erred in granting the motion of the defendant Independence Ice Company for a nonsuit for the reason that the evidence shows that, as between the defendants Independent Ice Company and the Wasatch Coal Company, the teamster, Ed. Wesler, at the time of the accident complained of, was the servant or agent of the said Independent Ice Company and not of the Wasatch Coal Company; and for the further reason that, if there was any conflict in the evidence as to whether said ..teamster was at the time of the accident the servant or agent of either of said defendants, that question should have been submitted to the jury.”
If there ever was any question as to the Independent Ice Company being an adverse party, the foregoing assignment *118would seem to be sufficient answer to tbe contention. At least it is conclusive that the appellant considered that the court erred in granting the ice company’s motion for nonsuit, and he assigns it as a proper subject for review by this court.
It is insisted that the ice company is in no worse condition by a reversa], of this judgment than it would have been if it had never been made a party to the action. Granting that that may be true, nevertheless the ice company was made a party, and as such I think is entitled to have its rights determined, if possible, in this suit, and not be harrassed by new proceedings. It is the admitted policy and the duty of the courts to so determine the rights of' parties brought into litigation as to avoid the expense and delay, of numerous actions.
I ain making no defense or argument in support of the ruling or principal announced in the Griffin Case, nor of the statute upon which that rule is predicated. The Constitution of this state guarantees the right of appeal to this court from judgment of the district courts to all litigants, and the Legislature might well have, in my judgment, in prescribing the method of exercising that constitutional right, made such provision that, when a party appealing has neglected to serve all adverse parties, such adverse parties could thereafter, by order of court, be brought into this court, upon it being made to appear that such parties are necessary to the jurisdiction of this court. But so long as the rule or principle announced in the Griffin Case is to stand as the established law or rule of procedure in that class of cases, I see no reason why a different rule should be laid down in cases like the one under consideration. In my judgment, there is no difference in principle.
I think the motion to dismiss the appeal should be granted.
Passing now to a consideration of the merits of the case. I am unable to concur in the affirmance of the judgment. Accepting the general principle expressed in the quotation from 212 U. S. in the prevailing opinion as the true rule to govern in determining when one who is in the general employment of another may, by arrangement made between such employer *119and a third person, cease to be the employé of the general employer and for tbe time being become tbe servant of the third person, I cannot, in the application of that principle to the facts in the instant case, concur in the conclusions reached. In the application of that general principle announced in the ease referred to, after discussing the test for determining whether the .relationship of master and servant existed between the servant and the general employer, or between the servant and the one to whom he had been let or hired at the time of the injury, the Supreme Court of the United States concluded the discussion thus:
“To determine whether a given case falls within the one class or the other, we must inquire whose is the work being performed, a question which is usually answered by ascertaining who has the power to control and direct the servants in the performance of their work. Here we must carefully distinguish between authoritative direction and control, and mere suggestion as to details or the necessary co-operation, where the work furnished is part of a larger undertaking.”
The facts in that case were that the plaintiff: was employed by a master stevedore, who was under contract to load a ship belonging to the defendant with oil. The plaintiff was working within the hold of the ship, where he was injured without fault on his part by being struck by a draft or load of cases containing oil which was unexpectedly lowered into the hold. The motive power was furnished by a steam winch or drum, and the hoisting and lowering were accomplished by means of a tackle, guy rope, and hoisting rope. The tackle and ropes were furnished and rigged by the stevedore, and the which and drum were owned by the defendant and placed on its dock, some fifty feet distant from the hatch. All the work of loading was doné by the employés of the stevedore, except the operation of the winch, which was done by a winehman in the general employ of the defendant. It appears that the operator of the winch received signals from the employés of the' stevedore when to raise and lower the tanks containing oil, and that he neglected to observe or follow such signals, thereby lowering the tanks out of time and causing the injury. Applying the general principle stated in the quotation *120to tbe facts of that case, the Supreme Court determined that such facts did not warrant the conclusion that the relationship of master and servant did not exist between the defendant and the operator of the winch. It is pointed out that the ■winchman was under the general employment of the defendant, who selected him, paid his -wages, and had the right to discharge him for incompetency, misconduct, or for any other reason; that, before such legal relationship of master and servant could be terminated, it was necessary that a new like relationship be created between the winchman and the stevedore.
The facts presented by the record in the case at bar, as I view them, show that the driver, at the particular time of leaving the tongue of the wagon so as to cause the injury, was doing the work of the ice company. It will be remembered that the contract between the ice company and the coal company was that the ice company should deliver coal with its teams and wagons at an agreed price. Of necessity, in the performance of that work, the amount of coal, as well as where and to whom it should be delivered, must be determined and directed by the officers of the coal company, otherwise the ice company would have no information or direction how to carry out and complete its part of the contract. The method or manner of delivery seems to have been under the control of the ice company or its employés.
The Supreme Court of Massachusetts, in Driscoll v. Towle, 181 Mass. at page 419, 63 N. E. at page 923, in considering a case where the facts are almost identical with the facts here, and in discussing this particular question said:
“In case like the present there is a general consensus of authority that, although a driver may he ordered by those who have dealt with his master to go to this place or that, to take this or that burden, to hurry or to take his time, nevertheless in respect to the manner of his driving and the control of his horse he remains subject to no orders but those of the man who pays him. Therefore he can make no one else liable if he negligently runs a person down in the street.”
There is nothing in the record to show that the officers of the coal’company in any way controlled, directed, or sug*121gested to tbe driver employed by tbe iee company tbe method to be employed in delivering the coal, or bow or in what manner tbe premises of tbe person to whom the coal was to be delivered should be entered.
Tbe general principle quoted from tbe Supreme- Court of the United States is made the basis of practically all decisions rendered by the courts of this country since its announcement. In the application of that general principle I have found no authority, where the facts are similar to the facts here, where it has been held that the driver or the party causing the injury was the employé of the one to whom he was let or hired, unless it be the case of Philadelphia & R. Coal & Iron Co. v. Barrie, 179 Fed. 50, 102 C. C. A. 618, Circuit Judge Sanborn, in a concurring opinion in that case, said:
“The question in this case is whether the Coal & Iron Company or Martin was the master of the driver, McQuistran, in the latter’s performance of the specific act of protecting pedestrians from stepping into the coal hole in the sidewalk while he was unloading the coal into it. When a master who has and exercises the power to hire and discharge his servant lets him and a team to a hirer, to go where and do such known work as the hirer directs, the legal presumption is that, although the hirer directs the servant where to go a'nd what to carry or haul or do, the driver still remains subject to the control of his general employer in the method of his performance of the work to which the hirer assigns him, and the hirer is not liable, in the absence of an agreement to the contrary for the negligence of the servant in the method or manner of his performance of his service. (Citing numerous cases.)
Judge Sanborn, however, concurred in the order holding the defendant liable on the ground that the defendant’s local manager testified as follows:
"Q. And the method of delivery is under your orders? A. Yes, sir. Q. Place, the time, the amount, and all, is under your orders? A. I have said so two or three times.”
As I have pointed out, there is nothing in the record tending to indicate that the method of delivering the coal in the case now under consideration was under the control of the coal company. To that extent, at least, the facts here differ from the facts in the ease reported in 179 Fed. There is practically no dispute as to what the facts are in this case. There *122was, therefore, no question to be submitted to the jury, as some of the cases hold should be done, as to whose employe the driver was at the time of the negligent act committed by him. It thus became a question of law, under the admitted or proven facts, for the court to determine whose servant the driver was at that particular time. The following cases, in my judgment, support what I here contend for: Foster v. Wadsworth-Howland Co., 168 Ill. 514, 48 N. E. 163; Quinn v. Complete Elec. Const. Co. (C. C.) 46 Fed. 506; Kellogg v. Church Charity Foundation, 203 N. Y. 191, 96 N. E. 406, 38 L. R. A. (N. S.) 481, Ann. Cas. 1913A, 883; Burns v. Michigan Paint Co., 152 Mich. 613, 116 N. W. 182, 16 L. R. A. (N. S.) 816; Singer v. McDermott, 30 Misc. Rep. 738, 62 N. Y. Supp. 1086. See, also, 1 Labatt, Mast. & Serv. (2d Ed.) section 54.
A careful consideration of the facts of this case and the application of the law thereto, as I understand the law, convinces me that at the time of the act complained of the driver was the servant of the ice company, and that' therefore the coal company should not be held liable in this ease.
For the foregoing reasons I dissent from the affirmance of the judgment, unless such affirmance shall be based upon the dismissal of the appeal.