The case of Pruitt v. Industrial Accident Commission, ante, p. 459 [209 P. 31], does not conflict with the instant cases, as is contended in the petition for rehearing. In the instant cases the relationship of general employer and employee existed between Harris and Pratt prior to the contract of hire of the truck and driver by the special employer, Geiger. Pratt was employed by Harris, his wages were paid by Harris, and he could only be discharged and replaced by Harris, and daily he made reports to Harris as to the amount of work performed. This and other uncontradicted evidence tended to show that Harris exercised exclusive control over Pratt in all respects except as to the loading and unloading of the truck. [7] In the absence of direct evidence or of any evidence in the instant cases from which it might be inferred that Harris at the time and place of the collision and with respect to the manner and method of operating and controlling the auto truck while in transit had relinquished to another person his right of control over the driver of the truck, it must be inferred that he retained such control and as a consequence was liable.
On the other hand, in Pruitt v. Industrial AccidentCommission, the evidence leads to the opposite conclusion. In that case Conklin was hired by Graham Bros. to haul gravel and was paid by them. At the inception of the hiring of Conklin, and for some time afterwards, Graham Bros. exercised exclusive control over Conklin and his operation of the truck in general. Two weeks before the accident Pruitt purchased the truck in question but made no change in the arrangement between Conklin and Graham Bros. *Page 489 except to take as owner of the truck a percentage of the amount carried by Conklin. There is no evidence, either direct or inferential, that Pruitt at any time assumed any control over the truck or the driver. The inference was therefore justified in that case that Graham Bros. retained control and were exercising it at the time of the collision. Pruitt therefore would not be liable.
Lennon, J., Richards, J., pro tem., Lawlor, J., Waste, J., and Wilbur, Acting C. J., concurred.