Dowsett v. Dowsett

During the middle of June, 1945, when Darwin Dowsett, the respondent herein, was stationed at Camp Maxey, Texas, he telephoned his wife in Holladay, Utah, and informed her that he had secured living quarters at a little town close to camp and wanted her to come and stay with him and to bring his car. He knew his wife could not drive a car, but that both his father and mother could, and suggested that she ask his father and mother to drive the car and bring her along. Nellie Dowsett, the appellant herein, is the mother *Page 14 of Darwin Dowsett. Mrs. Darwin Dowsett, in compliance with her husband's instructions, requested her mother-in-law and her father-in-law to take her and to drive their son's car to Camp Maxey. This they consented to do. Early in the morning of June 30, 1945, in pursuance of the plans theretofore made, the Dowsetts and a friend left Holladay, Utah, in respondent's car to make the trip to Camp Maxey. Mr. Harold Dowsett was driving and his wife Nellie was sitting at his side in the front seat. Respondent's wife and friend were in the back seat. It was intended that Nellie Dowsett should relieve her husband when he tired of driving but had not done so when they reached the place of the accident in Daniels Canyon about 33 miles east of Heber City, Utah. As they approached that place, the sun suddenly blinded the driver, and he proceeded for about 200 feet without being able to see the road, at which time he applied the brakes because he could feel loose gravel and the car shaking. By this time he had reached the edge of an embankment and the car tipped over causing serious injuries to Nellie Dowsett, the appellant. At the time of the accident, the car was being driven about 35 miles per hour and Nellie Dowsett was talking to the people in the back seat and her head was turned in that direction, so she was unaware of the fact that the sun had suddenly blinded her husband so that he could not see the highway.

Appellant contends that her husband who was driving the car at the time of the accident was the agent of the respondent, their son, and therefore, respondent is liable to her for the driver's negligence which caused the accident. At the conclusion of appellant's case, respondent moved the court for a directed verdict on the ground, among others, that appellant was a fellow servant of the driver and, therefore, was precluded from recovering for injuries sustained on account of his negligence, if any. The court granted the motion, and this appeal is from the verdict and judgment entered of no cause for action.

Appellant contends that the court erred in finding that she and the driver of the car were fellow-servants because *Page 15 the relationship of master and servant arises out of a contract of employment and there was no contract of employment between respondent and appellant and the driver. She contends that the relationship was consensual and not based on contract and respondent had no right to control the acts of either the driver or appellant as to how the car was to be driven or as to what route was to be taken. She argues that "right to control" is a missing element in this case and, therefore, she could not be a fellow servant, but, like the driver, was an agent of respondent. Respondent concedes that the facts disclose that he had no right of control over appellant or the driver but argues that because he did lack the right to control his agents that he was not responsible for any act of negligence of his agent, the driver, which caused the injuries, because such responsibility is based on the doctrine of respondeat superior or the liability of the master for the acts of the servant or agent whose physical acts he controls or has a right to control.

In the Restatement of the Law on Agency, Vol. 1, Sec. 220, page 483, a servant is defined as a

"person employed to perform service for another in his affairs and who with respect to his physical conduct in the performance of the service, is subject to the other's control or right to control."

If there is no control or right of control in the relationship, a person is not a servant and the principal would not be liable for his acts. See page 485 wherein it is stated in comment c:

"It is important to distinguish between a servant and an agent who is not a servant, since ordinarily a principal is not liable for the incidental acts of negligence in the performance of duties committed by an agent who is not a servant (See Sec. 250) * * * The important distinction is between service in which the actor's physical activities and his time are surrendered to the control of the master, and service under an agreement to accomplish results or to use care and skill in accomplishing results. Those rendering service but retaining control over themanner of doing it are not servants. They may be agents, agreeing only to use care and skill to accomplish a result and subject to fiduciary duties of loyalty and *Page 16 obedience to the wishes of the principal; or they may be persons employed to accomplish or to use care to accomplish physical results, without fiduciary obligations, as where a contractor is paid to build a house. An agent who is not subject to control asto the manner in which he performs the acts that constitute theexecution of his agency is in a similar relation to the principalas to such conduct as one who agrees only to accomplish merephysical results. For the purpose of determining liability, theyare both `independent contractors' and do not cause the personfor whom the enterprise is undertaken to be responsible * * *." (Emphasis ours.)

If respondent had no right of control over the driver of his car, the court did not err in directing a verdict of no cause of action. As shown above, a principal cannot be held responsible for the torts of his agent where he has no right of control over that agent. Regardless of whether the driver of the car and appellant were fellow servants, the court was right in directing a verdict since, in any event, appellant would not be entitled to a judgment against respondent for the injuries she sustained, and although the court may have assigned an incorrect reason for directing the verdict, the direction was correct.

Affirmed. Costs to respondent.

PRATT, C.J., and LATIMER and McDONOUGH, JJ., concur.