Petition for Writ of Certiorari — Hines v. Fred Jones Co.

INDE.

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Citations to the Opinions Below .......--.-+..eeeee 1

Jurisdiction .. . ...... cece cece eee cec ee ccc cnsecceees 2

Questions ek psp kan nddsseeceenen sku auaes 3

Rules and Statutes Involved ........--+++++++e+eeeee 4

Mimtommont . wee cece ccc ccccnscccccsscoccnceeseese 4

Genuine Issues Presented on Behalf of Plaintiff...... i)

Issues Presented on Behalf of the Defendant........ 7

Issues Presented Under Said Plea of Independent Con-

tractor Not Determinable on Motion for Summary

Judgment . .. 1... cece e cece er cer eececenneceees $8

Reasons for Granting the Writ..........--..e.- eee 12

ME ng ok cecee vesvabnnasesesseeaueeneenecs 18

Appendix ‘‘A’’—Judgment ... 0+. see eee eee cere ee es 19

Appendix **B’’—Order Granting Motion for Summary

Judgment ... .csccsvcccesscescsces 19

Appendix ‘*C’’—Order Denying Petition for Rehearing 20

Appendix ‘*D’’—Federal Court Rule 56 (a), (b) and

(c), of Civil Procedure..........--- 20

Appendix ‘* ’’—Section 29.15, Title 47, O. S. A. 1951. 21

Appendix ‘*F’’—Summary of the Deposition of Rex

MM Gs Chaves bees O84 bao kt Fee 22

TABLE OF CASEs.

Coston v. Adams, 203 Okl. 605, 224 P. 2d 995.......... 9,17

Ellis & Lewis v. Trimble, 182 Okl. 414, 78 P. 2d 312... .5,16

Ferris v. Sterling, 214 N. Y. 249, 108 N. i. 406...... 6

Frew y. Barto, 245 Pa. 217, 26 Atl. 2d 905, 906........ 6

Gulf, C & S. F. Ry. Co. v. Rutledge, 173 Okl. 245, 47

re ee geppenseSbevek GS eeeedeeee Leaves 17

Huckins Hotel Co. v. Clampitt, 191 Okl. 190, 224 Pace.

Me ee eure ca eee as 9,16

Hulett Lbr. Co. v. Bartlett-Collins Co., 206 Okl. 93,

eb . nS rrr reer, aye 10,17

SSE TR COON @

PEE ARR Ee

TENN OPTI T

ees

v SERENE EE I

PL art ME tern SRS al Pe Ppt ws 4.

Taste or Cases—Continued,

PAGE

Indian Terr. Tl, Oil Co. v. Bell, 173 Okl. 46, 46 P. 2d

ED ia cera ebaeease hese ere kerensee nnn’ 10, 17

Knox v. Champlin Ref. Co., 172 Okl. 396, 45 P.2d119.. 7

Marion Machine Fdry, & Sup. Co. v. Duncan, 187 Okl.

160, 101 P. 2d 813 ......-.. cece cence er creecees 9,16

MeNally v. Cochran, 170 Okl. 368, 46 P. 2d 955........ lj

Miller v. Miller, (Ct. of App. Dist. of Col.) 122 F. 2d

ek seen esse seR eR et eheeensves 8,13

Miller v. Service and Sales, Inc., 149 Ore. 11, 38 P. 2d

995, 997, 96 A. L. R. 628....---- eee eee eer e cere

Minnetonka Oil Co. v. Haviland, 55 Okt. 43, 155 Pae.

I Te vekkiakuksneeernt reece sess 9,16

M., 0. & G. Ry. Co. v. Brown, 41 Okl. 70, 136 Pae. 117. .8, 16

National Life & Aeci. Ins. Co. v. Robertson, 180 Okl. 265,

a pari eccedvectaseeesacceeessne 8,14 F

Norton v. Harmon, 192 Okl. 36, 133 P. 2d 206........ 6,16 |

Opinion in this case, reported in advance sheets, Vol. 1, *

D7. > 4 & 2 | eee

Sartor v. Arkansas Natural Gas Corp., 321 U.S. 620, 64

i) Qe. A Sear ee 8,12

Sheppard v. Hall, (Okla., not officially reported) 282 P.

una phenevhanh ate si eesnesnnsees 9,17

Simmons v. Brooks, 63 App. D. C. 293, 72 F. 2d 86, 87.. 6

Sonnentheil v. Christian Morlein Brewing Co., 172 U.S.

et, WO, GH, SOE, SOE ioe cash anon y eves eset 813 |

Strahn, et al., v. Murry, 200 Okl. 640, 199 P. 2d 603.. 8 ig

Whitaker v. Coleman, (5th Cir.) 115 F. 2d 305........ 8,14 |

STATUTES.

Federal Rule 56 of Civil Procedure......-. 2,3, 4, 12, 16, 20

Okla. Stats. 1951, Title 47, See. 22.15.......-+-.-- 4,5, 7,21

U. S. G., Title 28, See. 723. ......- 0c eee ee cece eres 2

U. S. C., Title 28, See. 1254 (1)...--- +e sere eee eee

U. S. C., Title 28, See, 1652.......-- eee eee e eee eeces

IN THE SUPREME COURT OF THE UNITED STATES.

October Term, 1955.

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MATILDA HINES, Petitioner,

vs.

FRED JONES COMPANY, an Oklahoma Corporation,

Respondent.

PETITION FOR WRIT OF CERTIORARI

To the United States Court of Appeals for the Tenth Circuit.

Matilda Hines prays that a writ of certicrari issue to

review the judgment of the United States Court of Appeals

for the Tenth Circuit entered in the above entitled case on

the 3rd day of January, 1956; rehearing denied February

15, 1956.

Citations to the Opinions Below.

The opinion of the Circuit Court of Appeals for the

Tenth Circuit is reported in advance sheets, Vol. 1, 229 F.

2d., pages 213-215. The judgment of the Cireuit Court of

Appeals, omitting caption, is printed in Appendix ‘‘A’’

hereto infra, page 19. The Journal Entry of Judgment of

the United States District Court for the Northern District,

omitting caption, is printed in Appendix ‘*B’’ attached here-

to infra, pp. 19-20. Judgment of the Circuit Court of Ap-

peals in denying petition for rehearing, omitting caption, is

printed in Appendix ‘‘C’’ attached hereto, imfra, page 20.

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Jurisdiction,

Rehearing was denied February 15, 1956 (R. 20). The

jurisdiction of this Court is invoked under 28 United States

Code, Section 1254 (1). Conflict of the opinion with the de-

cisions of this Court, and the several circuits in construing

Federal Rule 56 (c) of Civil Procedure following 28 U.S.

C. A. See. 723 (b) is so definite that uniformity can be

secured only by determination from this Court.

The application of Federal Rule 56 (c) of Civil Pro-

cedure made by the court below in the opinion applies to

and involves all Federal District Courts and Courts of

Appeal of the various circuits and is of great nation wide

importance in that the controlling question is general and

not confined to the litigants in this case.

The jurisdiction is further invoked under Title 28,

United States Code, Section 1652. The opinion has decided

an important question of local law in irreconcilable conflict

with the applicable local decisions of the Supreme Court of

Oklahoma and in so deciding has misconstrued Federal Rule

56 (c) of Civil Procedure.

The importance of a decision on the controlling ques-

tion is general and not confined to the litigants in this par-

ticular case.

Questions Presented.

(1) May the trial court on motion for summary judg-

ment, under Federal Rule 56, subsection (c) of Civil Pro-’

cedure, determine an issue of fact?

(2) May the trial court, on motion for summary judg-

ment, under Federal Rule 56, subsection (¢) of Civil Pro-

cedure, determine the issue of credibility of witnesses and

the weight to be given their testimony?

(3) Upon motion for summary judgment, under Fed-

eral Rule 56, subsection (c) of Civil Procedure, the evidence

being sufficient to raise the issue of the liability of the car

owner upon the theory the driver was the employee of the

owner, may the court upon contrary evidence of the driver,

an interested witness, weigh the evidence and ¢redibility of

said witness and determine said issue of fact?

(4) Has the Court of Appeals in the instant case by

basing its decision upon the following statement:

‘The company had no power of direction or contro!

over Wann in doing the work. It had no authority to

direct him to do anything. He was free to do the work

in any way he saw fit. The company could neither di-

rect him to road test or refrain from road testing the

installation ;’’

which statement and conclusions are unsupported by any

evidence or inference to be reasonably drawn therefrom,

and without citation of authority, so far departed from the

accepted and usual course of judicial proceeding as to call

for the exercise of this Court’s power of supervicion?

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Rules and Statutes Involved.

Federal Rule 56 (b) and (c) of Civil Procedure, print-

ed in Appendix ‘‘D’’ hereto infra, pages 20-21.

Section 22.15, Title 47, Oklahoma Statutes 1951, appli-

cable portion printed in Appendix ‘‘E”’ hereto infra, pages

21-22.

STATEMENT.

Petitioner, Matilda Hines, a resident of Eugene, Ore-

gon, while visiting in Tulsa, Oklahoma, on January 7, 1954,

was walking across Admiral Place at the intersection of

New Haven Avenue at the usual place for pedestrians about

6:30 p. m., when nearing the center of Admiral was struck

by a new Lincoln automobile, owned by defendant Fred

Jones Company, and driven by Rex Wann, thereby injuring

and crippling plaintiff and incapacitating her during the

_. remainder of her life.

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GENUINE ISSUES PRESENTED ON BEHALF OF

PLAINTIFF.

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The defendant, Fred Jones Company, by answer (C. Tr.

91), admits ownership of the automobile. The automobile

had been delivered to Rex Wann to install an air conditioner

which required the delivery of the automobile, and he was

performing that service when he negligently drove the car

against the plaintiff causing her permanent injuries (C. Tr.

19). Therefore, there is presented a genuine issue of fact

as to whether Wann was the employee of the defendant

and acting within the scope of his employment, under the

holding in Ellis & Lewis v. Trimble, 182 Okl, 414, 78 P. 2d

312, wherein it is stated:

‘‘A party performing work of another at the time

of occurrence of injury caused by his negligence is pre-

sumed to have been employed by the person for whom

he was working and that person has a burden of prov-

ing any facts exempting him from liability on the

ground that relation of master and servant did not

exist.’’

IL.

Fred Jones Company was a licensed new automobile

dealer within the purview of Section 22.15, Title 47, O. S. A.

1951 (attached hereto as Appendix ‘‘D’’) (C. Tr. 23), which

statute prohibits the operation of the class of automobiles

of which the one involved belongs, upon the streets or high-

ways, for private use, or for hire, or without a dealer’s plate

attached thereto. The car was driven by Rex Wann at the

time of the accident, upon the highway without a license

plate and for a private use as contemplated by his employ-

ment; therefore there is presented a genuine issue of fact

whether Wann was an employee of the defendant and act- |

ing within the scope of his employment, under the holding |

of the Supreme Court of Oklahoma in Norton v. Harmon, |

192 Okl, 36, 133 P. 2d 206, wherein it is stated:

‘Inference raised by dealer’s ownership of auto-

mobile and by presence on automobile of dealer’s license

plates, that motorist was acting as employee of owner

obtains until such inference is overcome by credible

testimony to the contrary.”’

See also, the following cases cited in Norton v. Harmon,

supra, construing statutes similar to Section 22.15, Title 47,

O. S. A. 1951, to-wit:

Simmons v. Brooks, 63 App. D. C. 293, 72 F. 2d 86, 87,

and Miller vy. Service and Sales, Inc., 149 Ore. 11, 38 P. 2d

995, 997, 96 A. L. R. 628, wherein it is stated:

‘It is presumed that the defendant company, in |

the use and operation of its automobiles on the high-

ways of this state, would obey the law. Hence it could

reasonably be inferred that this car carrying the deal-

er’s license plates was being driven by Erskine on the —

dealer’s business.’’,

and wherein the court upheld the judgment against the com-

pany although it was uncontroverted the car had been

loaned to the driver for a purpose not authorized by

statute. Nee also, Ferris v. Sterling, 214 N. Y. 240, 108 NE.

406, in an opinion by Justice Carvoza ; and Frew vy. Barto,

245 Pa. 217, 26 Atl. 2d 905, 906.

The burden of proof was thereby placed upon the de- |

fendant to prove facts exempting it from liability.

= 7 =

ISSUES PRESENTED ON BEHALF OF THE DEFENDANT.

Defendant’s answer (C. Tr, 21-22) admitted ownership

of car, denied that Wann was the agent, and as an affirma-

tive defense alleged Wann to be an independent contractor.

Motion (C. Tr. 18) under Federal Rule 56 (b) and (c)

of Civil Procedure seeks a summary judgment based solely

upon the deposition of co-defendant, Rex Wann, an interest-

ed party, taken in a different action formerly pending in

the State District Court of Tulsa County, attached to the

motion as Exhibit ‘A’ (C. Tr. 18-21). A summary of the

testimony in the deposition is attached hereto as Appendix

“FR infra, pages 22-23, which testimony discloses the comi-

pany delivered an air conditioner with the automobile

to Rex Wann to install the air conditioner (C. Tr. 18). No

license plate of any kind was attached to the automobile

when delivered (C. Tr. 19). The air conditioner could not

be properly installed without driving the automobile on the

highway to test the operation of the installation (C. Tr. 20),

which practice was one generally used throughout the in-

dustry. At the time of the accident Wann was operating

the automobile on the highway to road test the installa-

tion (C. Tr. 20).

The deposition of C. C. Brann (C, Tr. 22-25), manager

of the company, and an interested party, discloses the com-

pany was a licensed Lincoln dealer, and if there was a

license plate attached to said automobile it would be uone

other than a dealer’s license plate (C. Tr. 23), thus estab-

lishing the company to be an automobile dealer within the

purview of Section 22.15, Title 47, O. S. A. 1951, and the

automobile was one of the class that could not be operated

on the highway without a dealer’s plate attached thereto,

or operated on the highway for a private purpose.

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ISSUES PRESENTED UNDER SAID PLEA OF INDE-

PENDENT CONTRACTOR NOT DETERMINABLE

ON MOTION FOR SUMMARY JUDGMENT.

(A) The plea of independent contractor being sup-

ported solely by the testimony of interested witnesses, on

motion for summary judgment, under Federal Rule 56 (b)

and (c) of Civil Procedure, presents an issue of fact for

the jury to determine the weight and credibility of witnesses’

testimony, under the holding of this Court in Sartor y, Ar-

kansas Natural Gas Corp., 321 U. 8. 620, 64 8S. Ct. 724, and

Sonnentheil vy. Christian Morlein Brewing Co., 172 U.S. 401,

19 S. Ct. 233; and of the Court of Appeals of the District

of Columbia in Miller v, Miller, 122 F. 2d 209, and of the

Court of Appeals of the 5th Cireuit in Whitaker v, Coleman,

115 F. 2d 305, and under the holding of the Supreme Court

of Oklahoma in Strahn, et al., v. Murry, 200 Okl. 640, 199

P. 2d 603, and National Life Ins. Co. v. Robertson, 180 Ok.

265, 68 P. 2d 796.

(B) There is also presented the following genuine is-

sue of fact as to liability of the defendant company when

the defense of independent contractor is interposed, under

the following decisions:

(1) The employment of Wann required and con-

templated him to drive the automobile upon the highway

without a license plate attached thereto, which would con-

stitute a violation of law; therefore the employment was to

do an unlawful act under the holding of the Supreme Court

of Oklahoma in M., 0. & G. Ry. Co. v. Brown, 41 Okl. 70, 136

Pac. 117, wherein it is held:

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‘*A person cannot employ another to do for him, —

as an independent contractor, an unlawful thing, and ,

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thus escape the consequence of the unlawful act whem

sued for damages occasioned thereby.’’

(2) See Minnetonka Oil Co, v. Haviland, 55 Okl.

43, 155 Pae. 217; Huckins Hotel Co, v. Clampitt, 191 OkL.

190, 224 Pac. 945; Marion Machine Foundry & Supply Co.

y, Duncan, 187 Ok]. 160, 101 P. 2d 813, wherein it is held:

‘*We think that while the rule is well settled that

one, who does work through the instrumentality of an

independent contractor, is not liable for damages, caused

by the negligent performance of suck work by the in-

Uependent contractor, to third persons except where

the work is inherently dangerous or unlawful.’’

(3) The eniployment of Wann being oral (C, Tr.

20) and the terms being vague, indefinite and uncertain ex-

cept that the automobile was delivered to Wann without a

license plate attached thereto (C. Tr 18) to install the air

conditioner, with no instructions except they wanted him

to do a good job, under the holding of the Supreme Court of

Oklahoma in Coston v. Adams, 203 Okl. 605, 224 P. 2d 995,

and Sheppard vy. Hall, (Okla., not officially reported) 282

P. 2d 212, there is presented a question of fact for the jury

and not for the court.

(4) It being uncontroverted the automobile was

delivered to Wann, without a license plate attached thereto,

to perform a service that required the operation of the

automobile in the condition it was delivered to Wann upon

the highway in violation of law and he was so operating the

automobile in violation of law at the time of the accident

constituted a negligent act and rendered the company liable

as a joint tort-feasor under the holding of the Supreme

Court of Oklahoma in the following decisions, to-wit:

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Indian Territory Illuminating Oil Co. v. Bell, 46 P. 2d

481, 173 Okl. 46, where the law applicable to joint tort-

feasors is stated as follows:

‘“To make tort-feasors jointly liable, there must be

some sort of community in wrong doing and injury must

be in some way due to their joint working, but they

need not be acting together or in concert if their con-

curring wrongful acts occasion the injury.’’

Also Hulett Lumber Co. v, Bartlett-Collins Co., 206 Okl.

93, 241 P. 2d 379, wherein the court, in syliabus 7, stated as

follows:

‘* Where separate or independent acts of negligence

of several combined to produce directly a single injury,

though concert was lacking, each is responsible for the

entire result, though his act or neglect alone might not

have caused it.’’

And in the body of the opinion stated as follows:

“The law is also settled in this jurisdiction that

where separate or independent acts of negligence of

several combine to produce directly a single injury, al-

though concert is lacking, each is responsible for the

entire result, even though his act or neglect alone might

not have caused it, and that it is not necessary that they

be acting together and in concert, if their concurring

negligence occasions an injury. All American Bus Lines

y. Saxon, 197 Okl. 395, 172 P. 2d 424; Oklahoma Ry. Co.

v. Ivery, 201 Okl. 245, 204 P. 2d 978.”’

The Court of Appeals in its opinion, affirming the judg-

ment of the trial court rendered upon motion for summary

judgment, based solely upon the deposition of Wann states

and concludes as follows:

‘‘Even assuming that had the dealer’s tag been at-

tached it would have raised a presumption of employer

and employee relationship, that presumption was disst-

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pated by the uncontradicted evidence before the court,

which clearly established that Wann was an independ-

ent contractor.’’

No authorities are cited by the court in the opinion to

support said statement and conclusion,

The opinion in holding the evidence of Rex Wann to be

an independent contractor concludes and states as follows:

‘*The company had no power of direction or con-

trol over Wann in doing the work. It had no authority

to direct him to do anything. He was free to do the

work in any way he saw fit. The company could neither

direct him to road test or refrain from road testing the

installation.”’

The above statement and conclusion of the court is un-

supported by any testimony or evidence or any inference

that can be drawn from the testimony of said Rex Wann.

The above statement and conclusion of the court is sub-

ject to no other construction than:

(a) That a mechanic employed to perform certain serv-

ices is irrevocably entrusted with all the discre-

tionary powers relative to his employment; and

(LJ) The employer is without authority to direct the

manner ia which the services of his employee are

to be performed to direct that the employee not

perform the same in a manner to constitute a viola-

tion of law.

The aforesaid statement and conclusion of the court is

unsupported by evidence or authority and in our opinion

is so fundamentally erroneous that the mere statement of

the conclusion demonstrates its unsoundness.

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REASONS FOR GRANTING THE WRIT.

The decision of the court below in the instant case by

its aforesaid conclusion, unsupported by authorities, has

placed a construction upon Federal Rule 56 (b) and (c) of

Civil Procedure holding that:

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(a) The trial court is empowered and authorized un-

der the aforesaid rule to weigh testimony and determine the

credibility of witnesses.

(b) That the trial court having weighed the testimony

and determined the credibility of witnesses may enter sum-

mary judgment pursuant to said rule upon the vague and

conflicting testimony of an interested witness.

Said holding is in direct and irreconcilable conflict with

the law announced by this Court in Sartor v. Arkansas Nat-

ural Gas Corp., supra, in construing Federal Rules of Civil

Procedure, Rule 56 (¢), in syllabus 5, 7, 8 and 9, announced

the law as follows, to-wit:

“6, Federal rule providing for summary judgment was

not intended to eut off right of trial by jury where

there are issues to tr’, and summary judgment

should be granted only when moving party is en-

titled to judgment as a matter of law, the truth is

quite clear and no genuine issue remains for trial.

The credibility of witnesses and weight to be given

their testimony is for jury which may exercise its

independent judgment even if such testimony is un-

contradicted.

That a witness is interested in result of suit is suffi-

cient to require the credibility of his testimony to

be submitted to jury as a question of fact.

—13—

9, Jury should not be disturbed in the exercise of its

function of determining credibility of witnesses and

the weight of their testimony ex. »t in case of man-

ifest and extreme abuse of such function.’’

The court in support of syllabus 8, supra, cites Sonnen-

theil v. Christian Morlein Brewing Co., 172 U.S. 401, 19

S. Ct. 233, and we quote from 19 S. Ct. 236, as follows:

‘And while the jury has no right to arbitrarily

disregard the positive testimony of unimpeached and

uncontradicted witnesses * * *, the very courts that lay

down this rule qualify it by saying, ‘The mere fact that

the witness is interested in the result of the suit is

deemed sufficient to require the credibility of his testi-

mony to be submitted to the jury as a question of fact’.’’

The opinion in so holding is also in direct and irrecon-

cilable conflict with the construction the Court of Appeals

of the District of Columbia placed upon Federal Rule 56 (c)

in Miller v, Miler, 122 F. 2d 209, wherein the court in con-

struing said rule in syllabus 7, 8 and 10 stated as follows:

(7) ‘**The purpose of the procedural rule provid-

ing for the rendering of summary judgment is to dis-

pose of cases where there is no genuine issue of fact,

even though an issue may be raised formally by the

pleadings, and the court is not authorized to try the

issue, but must determine whether there is an issue to

be tried. (ltalies ours.)

(8) ‘To proceed to summary judgment under pro-

cedural rule, it is not sufficient that the judge may not

credit testimony proffered on a tendered issue, but it

must appear tbat there is no substantial evidence on it,

that is, either that the tendered evidence is in its na-

ture too incredible to be accepted by reasonable minds,

or that, conceding its truth, it is without legal proba-

tive force.

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(10) ‘*To justify summary relief, the court must

be convinced that the issue is not genuine, but feigned,

and that there is in truth nothing to be tried.’”’

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The holding is also in direct and irreconcilable conflict

with the law announced by the Court of Appeals of the 5th

Cireuit in Whitaker vy. Coleman, 115 F. 2d 305, wherein the

court in syllabus 1 stated as follows:

“Where liability of automobile owner for de-

ceased’s death caused by automobile driver and liability

of insurer under liability policy depended upon whether

driver used automobile with permission of owner, de-

ceased’s administrator’s offer of proof that driver had

privilege of using automobile, kept keys, and used au-

tomobile without objection by owner, presented a gen-

uine issue of faet which entitled administrator to a |

jury trial on the issue and precluded summary deter-

mination against administrator under summary judg-

ment procedure provided by civil procedure rules.”’

And in the body of the opinion states as follows:

“The invoked procedure, valuable as it is for strik-

ing through sham claims and defenses which ¢tand in

the way of a direct approach to the truth of » vase, was

not intended to, it cannot deprive a litigant ¢, or at all

encroach upon, his right to a jury trial.”’

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The opinion in holding that the weight and credibility

of the witness Wann was a matter for the court and present-

ed no issue of fact for the jury is in direct conflict with the

uniform decisions of the Supreme Court of Oklahoma in

announcing the general principle of law stated in National

Life & Accident Ins. Co. Vv. Robertson, 180 OKI. 265, 68 P. 2d

796, to-wit:

‘It is for the jury, or the trial court upon waiver

of jury, to determine the credibility of the various

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witnesses, and the weight and value to be given to their

testimony.’’

Clearly the plaintiff, who seeks to recover damages for

permanent personal injuries, incapacitating her for the re-

mainder of her life, from the owner of the automobile being

driven by Rex Wann, while in the employ of the owner, in

a negligent and unlawful manner, presents no sham or feign

issue under the above authorities.

The fact the owner seeks to evade liability on the sole

theory that the driver was an independent contractor re-

futes any contention the plaintiff’s claim is feigned or a

sham, and when coupled with the defendant’s admission

that the car was unlawfully operated at the time of the acci-

dent with its knowledge and permission, clearly presents a

genuine issue of fact as to the relationship between the

owner and the operator of the automobile for a jury to

determine.

The conflict in the above decisions of this Court and

the Cirenit Court of Appeals of the District of Columbia

and the Court of Appeals of the 5th Cireuit with the opin-

ion herein in the instant case in holding the trial court,

under the aforesaid rule, on motion for summary judgment,

is authorized to determine the credibility of interested wit-

nesses and to weigh their testimony is so apparent that a

definite decision is vitally important not only to the liti-

gants in the case at bar but to all litigants generally, that

uniformity can only be secured by this Court again deter-

mining the function and duties of the trial court under the

aforesaid federal rule upon motion for summary judgment.

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The opinion of the court below in the instant case has

decided important questions of local law in irreconcilable

conflict with the local applicable decisions of the Supreme

Court of Oklahoma and in so deciding has misconstrued

Federal Rule 56 (c) of Civil Procedure and is in direct

conflict with the decisions of the Supreme Court of Okla-

homa and the law announced therein, heretofore cited and

quoted from, in the following cases, to-wit:

(a) Ellis & Lewis v. Trimble, supra, holding that a

party performing work for another at the time of injury

caused by his negligence places the burden of proof upon

the employer to exempt him from liability on the ground

the relation of master and servant did not exist.

(b) In Norton vy. Harmon, supra, wherein it is held

the fact that a dealer’s automobile was one that could not

be operated upon the highway for a private purpose with-

out a dealer’s license plate attached thereto, was being 80

operated, presented a question of fact for the jury to deter-

mine whether the driver was the agent of the employer.

(ec) In M., 0. d G, Ry. Co. v. Brown, 41 Okl. 70, 136

Pac. 117, holding that the employer cannot escape liability

through the instrumentality of independent contractor

caused by the negligent performance of work when the em-

ployment contemplated the doing of an unlawful act, and

the injury occurred during the performance of said unlaw-

ful act.

See: Minnetonka Oil Co. v. Haviland, supra;

Huckins Hotel Co. vy. Clampitt, supra;

Marion Machine Foundry & Supply Co. v. Duncan,

supra.

a ws

(d) Sheppard vy. Hall, supra, and Coston vy. Adams,

supra, holding that an oral contract which is vague, in-

definite and uncertain presented an issue of fact for the

jury to determine whether it created the relation of master

and servant or that of an independent contractor.

(e) Indian Territory Illuminating Ou Co, v. Bell, su-

pra, and Hulett Lbr. Co. v. Bartlett-Collins Co., swpra, hold-

ing that the separate and independent acts of several com-

bined to commit wrongful acts presented a question of fact

for the jury to determine their liability as joint tort-feasors.

II.

The holding and judgment of the court upon which it

based its decision, to-wit:

‘*The company had no power of direction or con-

tro] over Wann in doing the work. It had no authority

to direct him to do anything. He was free to do the

work in any way he saw fit. The company could neither

direct him to road test or refrain from road testing

the installation ;’’

being unsupported by evidence or reasonable inference

therefrom, is erroneous.

See: McNally vy. Cochran, 170 Okl. 368, 46 P. 2d 955;

Knox vy, Champlin Refining Co., 172 Okl, 396, 45 P.

2d 119;

Gulf, C. & S. F. Ry, Co. v. Rutledge, 173 Oki, 245,

47 P. 2d 833.

The above statement of the court being unsupported by

a finding of the court or any evidence or inference to be

drawn therefrom should be reviewed by certiorari in this

Court and held to be erroneous.

Settlement of the questions by this Court is primarily

in the public interest since it is likely to be presented in

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almost any jurisdiction where the question of rules of fed-

eral procedure are involved or in any action arising in the

various federal courts occurring to an employee wherein

the defendant seeks to evade liability upon the theory of

the employee being an independent contractor.

Conclusion.

For the foregoing reasons this Petition for Writ of

Certiorari should be granted.

Respectfully submitted,

NEAL E, McNEILL,

1910 First National Building,

Tulsa, Oklahoma,

Counsel for Petitioner,

NEAL E. McNEILL, JR.,

1910 First National Building,

Tulsa, Oklahoma,

Counsel of Record,

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APPENDIX.

Appendix “A.”

JUDGMENT.

Thirty-first Day, November Term, Tuesday, January

3rd, 1956.

Before Honorable Sam G. Bratton, Chief Judge, Honor-

able Walter A. Huxman, Circuit Judge, and Honorable A.

Sherman Christenson, District Judge.

This cause came on to be heard on the transcript of the

record from the United States District Court for the North-

ern District of Oklahoma and was argued by counsel.

On consideration whereof, it is ordered and adjudged

by this court that the judgment of the said district court

in this cause be and the same is hereby affirmed,

Appendix “B.”

ORDER GRANTING MOTION FOR SUMMARY

JUDGMENT.

The motion of the defendant, Fred Jones Company, an

Uklahoma corporation, for summary judgment pursuant to

rule 56 (56-c) of the Rules of Civil Procedure, having been

presented, and the court being fully advised,

The court finds that the defendant, Fred Jones Com-

pany, an Oklahoma corporation, is entitled to a summary

judgment as a matter of law.

It is therefore ordered, adjudged and decreed that the

defendant’s motion for summary judgment be, and the same

hereby is granted, that the plaintiff have and recover noth-

ing by their suit, that the defendant, Fred Jones Company,

an Oklahoma corporation, go hence without delay, and that

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—20—

Appendiz Appendiz

defendant recover its costs and charges in this behalf ex-

pended and have execution therefor.

Enter: Dated this 19th day of April, 1955.

Royce H. Savage,

Judge of the United States District Court

for the Northern District of Oklahoma.

Filed April 19, 1959.

Appendix “C.”

ORDER DENYING PETITION FOR REHEARING.

Sixty-first day, November Term, Wednesday, February

15th, 1956.

Before Honorable Sam G. Bratton, Chief Judge, Hon-

orable Walter A. Huxman, Circuit Judge, and Honorable A.

Sherman Christenson, District Judge.

This cause came on to be heard on the petition of ap-

pellant for a rehearing herein and was submitted to the

court.

On consideration whereof, it is ordered by the court

that the said petition be and the same is hereby denied,

Appendix “D.”

Federal Court Rule 56 (a), (b) and (ce), reads as fol-

lows, to-wit:

“56, Summary judgment,—(a) For Claimant. A

party seeking to recover upon a claim, counterclaim, or

cross-claim or to obtain a declaratory judgment may, at

any time after the expiration of 20 days from the com-

mencement of the action or after service of a motion

for summary judgment by the adverse party, move

with or without supporting affidavits for a summary

judgment in his favor upon all or any part thereof.

‘«(b) For defending party. A party against whom

a claim, counter-claim is asserted or a declaratory judg-

—21—

Appendix Appendiz

ment is sought may, at any time, move with or without

supporting affidavits for a summary judgment in his E

favor as to all or any part thereof. ;

**(¢) Motion and proceedings thereon. The mo- '

tion shall be served at least 10 days before the time fixed Hl

for the hearing. The adverse party prior to the day §

of hearing may serve opposing affidavits. The judg- B

ment sought shall be rendered forthwith if the plead- k

ings, depositions, and admissions on file, together with t

the affidavits, if any, show that there is no genuine is- f

sue as to any material fact and that the moving party 4

is entitled to a judgment as a matter of law. A sum- é

mary judgment, interlocutory in character, may be ren- 4

dered on the issue of liability alone although there is i

a genuine issue as to the amount of damges.’’ F

Appendix “E.” ;

Section 22.15, Title 47, O. S. A. 1951: :

‘*Every person manufacturing or having a contract i

to sell new vehicles in this State, shall file a verified

application upon a form to be prescribed and furnished

by the Commission for a general distinctive number

for all new vehicles owned or controlled by such manu-

facturer or dealer; provided, the Commission shall is-

sue a license to sell such new motor vehicles only for

those types of new vehicles for which the applicant has

a sales contract or franchise. Provided, tiat a separate

manufacturer’s or dealer’s license shall be required for

each separate county within which such manufacturer

or dealer has an established place of business and upon

payment of a license fee of Twenty-five Dollars ($25.00)

there shall be assigned and issued to such manufacturer

or dealer a Certificate of Registration and two (2) iden-

tification or number plates, and one (1) of which shall

be displayed upon each vehicle of such manufacturer

or dealer when same is operated, driven, or displayed

on any street, road or highway, in the same manner as

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—22—

Appendir Appendiz

hereinbefore provided for vehicles owned, possessed or

eperated by other persons. Such a manufacturer or

dealer in new vehicles may obtain as many additional

identification and number plates as may be desired, up-

on the payment of the sum of Twenty-five Dollars

($25.00) for each additional set of such plates; pro-

vided that no such identification or number plate issued

to any manufacturer or dealer shall be used or dis-

played upon any secondhand or used vehicle or upon

any new vehicle which is used for a service car, or pri-

vate use, or for hire. If such person also buys and sells

used vehicles, he shall after obtaining his new car deal-

er’s license also obtain a used car dealer’s license, the

cost of which to him shall be Five Dollars ($5.00) per

vear. * @ @))

Appendix “F.”

Summary of the Deposition of Rex Wann,

Was one of the defendants; a general mechanic; op-

erates Creekmore Motor Service with his partner. Was

driver of the automobile involved in the accident with Mrs.

Hines on January 7, 1954, at Admiral and New Haven (C.

Tr. 18). Did not know the owner of the car; Fred Jones

Company brought it to him to install an air conditioner.

In order to properly install an air conditioner it is neces-

sary to road test them, that is, drive the car on the road

(C.. Tr. 19). The only place you can road test one where

my shop is, is on East Admiral and TI was road testing at

the time of the accident. Worked for Fred Jones Com-

pany from 1950 to 1953. When the car was delivered to

me had no license plate of any sort attached (C. Tr. 19).

When working for Fred Jones Company we road tested

them 4 or 5 times * * *. The general practice after instal-

lation of air conditioners is to road test the same. It is

almost impossible to get one to run without road testing

it. It almost has to be a standard procedure to road test

the same after the air conditioner is installed. Had installed

—23—

Appendix Appendiz

air conditioners in about 20 cars for Fred Jones Company

prior to the accident and about 50 afterwards; about 50%

had license tags of some kind on them.

On cross-examination: The company would bring these

cars to him to have air conditioners installed in them. * * *

Was paid on a job basis * * *. Fred Jones Company fur-

nished the air conditioners. He used his own equipment

such as drills * * *. He had no written contract with the

company. (C. Tr, 21-22)

He was asked the following questions and gave the fol-

lowing answers:

Did Fred Jones tell you how to install it, or as you

put it is there only one way to do it?

There is just one way. They would tell me they

wanted a good job.

You do general mechanic work, is that correct!

Well, once and a while I put in a set of rings but

very seldom. It is usually tuning up and air condi-

tioning work. * * *

Did not have any written contract with Jones on this

installation. (C. Tr, 21)

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INDEX.

PAGE

en SOU are eal Seen eg Ue eee 1

Reasons for Not Granting Writ ..................0.6. 3

Appendix A—Deposition of Rex Wann (Tr., pp. 18-

MEM s-a:8 ARbeRie SSO RUTRS Reo enane ee eees 17

Appendix B—Deposition of C. C. Brann, taken Jan-

uary 20, 1955 (Tr., pp. 22-25)......... 20

Appendix C—Proceedings, April 12, 1955 (Tr., pp. 27,

PEE 24s SER ORG TROCRS HEREC RNS ORDO 23

Appendix D—Proceedings, April 18, 1955 (Tr., pp. 33,

TABLE oF CASES.

Barnsdall Refining Co. vy. The State Industria] Commis-

sion, 163 Okl. 154, 21 P. 2d 749...........00eeee. 6

Bradley v. Chickasha Cotton Oil Co., (Okla.) 84 P. 2d

Ee Ee a OEE Eee eke ok EM OES EEE ARON SO oO 1]

Geok v. Knox, (Okla.) 273 P. 2d 865........cccccccecs 12

Dierks Lumber & Coal Co. v. McDaniel, 188 Okl. 695,

& Se BARRE Ae Bape ae aay le es 6

Ellis & Lewis, Inc., v. Trimble, 177 Okl. 5, 57 P. 2d 244 6

Jamar v. Brightwell, 19 P. 2d 366, et al. .............. 13

Marland Refining Co. v. Huffee, 94 Okl. 16, 220 Pace. 846,

SRS ce Oly og ah de cnn fom ovata oe cee Reka ee 10

morton v. Harmon, 133 P. 2d 206...........0..s0e00. 12

Randolph v. Schuth, (Okla.) 90 P. 2d 880............ 12

Sartor v. Arkansas Natural Gas Corp., pages 12 and 13

of the petitioner’s writ, syl. 3 and 10............ 13

Sawin v. Nease, 186 Okl. 195, 97 P. 2d 27, 30-31...... 5

Taylor v. Hayes, (Okla.) 261 P. 24599 .............. 6

——————

IN THE SUPREME COURT OF THE UNITED STATES.

No.

MATILDA HINES, Petitioner,

vs,

FRED JONES COMPANY, an Oklahoma Corporation,

Respondent.

RESPONSE TO PETITION FOR WRIT OF CERTIORARI.

Statement of Facts.

The plaintiff was injured through the alleged negligence

of Rex Wann, and Fred Jones. Fred Jones admitted that

Wann was driving a car owned by Jones, but denied, under

oath, that Wann was its agent or employee.

The plaintiff took the deposition of Rex Wann and Mr.

Brann, the latter being manager of Fred Jones, and de-

veloped all the facts which are pertinent to this appeal.

Facts proven by the plaintiff, which are not in dispute,

and which was the basis for the summary judgment, are

as follows:

Rex Wann, an automobile mechanic, was a partner in

the Creekmore Motor Company. They were independent busi-

ness men, and as partners operated a general automobile

repair business in Tulsa. As such, Wann was a competitor

of Fred Jones, who was likewise engaged in the general

automobile repair business. Fred Jones sold new cars but

did not install air conditioners. Rex Wann did not sell new

_ ae

cars but did install air conditioners. Fred Jones made ar-

rangements with different garages in Tulsa to install air

conditioners in cars that they sold. Among these inde- }

pendent business men that they contracted to do this work |

ee

3

was their competitor, Rex Wann.

The installation in this particular car involved in this

accident had been made by Wann. At the time of the acci-

dent Wann was driving the ear owned by Fred Jones, while ff

in the process of installing the air conditioner. The car did

not have a license tag on it.

The evidence was clear and undisputed and without

contradiction that Rex Wann was: (1) An independent

business man, (2) was paid by the job, (3) did work for any

person that brought work to his garage or made arrange- .

ments for him to work on their car, (4) worked whatever

hours he, Rex Wann, preferred, (5) used his own equip-

ment, (6) used own methods of performing work, and (7) no

control was exercised over him except that the completed

job would be satisfactory.

The deposition of Rex Wann was attached to the mo- |

tion for summary judgment, and after the first hearing, }

the trial judge gave the plaintiff additional time to secure

evidence to substantiate their claim that Wann was an agent

of Jones at the time of the accident rather than an inde-

pendent contractor, and the matter was continued for some

three months for that purpose. During that period of time

the plaintiff took the deposition of Mr. Brann, manager of

Fred Jones. No other evidence was offered.

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Thereafter, the motion for summary judgment came o8

for hearing again, at which time it was sustained.

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Reasons for Not Granting Writ.

The evidence was undisputed that Wann was an inde-

pendent contractor and under the holdings of the Oklahoma

Supreme Court the trial judge had no choice but to grant

the motion for summary judgment, and the Circuit Court

of Appeals had no choice but to affirm this action, which

they did unanimously.

It is quite apparent that learned counsel for plaintiff,

though repeatedly told by the trial court as well as the

Cireuit Court of Appeals, have never quite realized that

it is incumbent upon them to prove by some competent evi-

dence legal responsibility on the part of Fred Jones.

On page 39 of the transcript filed in the Circuit Court

of Appeals the trial judge said:

‘The Court: Well, now, if you want to go around

talking about the evidence, that is something else; if

you can point out any evidence—any testimony in these

depositions which suggest an agency relationship I

would be interested in hearing that.’’

Let us examine the facts as previously stated along-

side the opinions of the Supreme Court of Oklahoma, which

the Cireuit Court was obligated to follow. The evidence of

the relationship between Mr. Wann and Fred Jones Com-

pany as reported in the Transcript at pages 20 and 21 is

as follows:

“Q. Now, as I understand it, they would bring these

cars out to you to have the air conditioner installed

in them?

A. Yes,

Q. And fifty per cent of the time you would take it

back or they would come after the car after it was

completed; is that correct?

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Yes, sir.

How were you paid—on a per job basis or on a

monthly salary?

Job basis.

Did you use your own equipment—what I mean for

the installation?

Yes, you have those drills and such as that.

I understand that Fred Jones, Incorporated, fur-

nished the air conditioner, but you used your own

equipment to install it?

Yes,

Did you have any written agreement with Fred

Jones, Incorporated, on this work?

No.

Did Fred Jones tell you how to install it, or as you

put it there is only one way to do it?

There is just the one way. They would tell me

the, wanted a good job.

What time of night or time of day did this acei-

dent happen?

About twenty until seven,

About 6:40 p. m.?

That’s right.

What is your usual working hours at the garage?

Well, sometimes I work until midnight, sometimes

I go to work at six o’clock in the morning.

What is your usual hours out there?

Well, I usually work from about seven to about

eight o’clock, I would say.

I believe you stated that you do general mechanic

work; is that correct?

Well, it is; once in a while I put in a set of rings,

but very seldom. It is usually tuneup and air con-

ditioner work.

-g—

Q. In other words, you don’t work exclusively for Fred

Jones?

A. No.

(). You do other work for other people?

A. Yes.

(). Did you have any written contract with Fred Jones

on this installation?

A. No.

Mr. Cox: That’s all.

Mr. Ward: That’s all.

Mr. MeNeill: I think that’s all.’’

Thus the undisputed evidence in the instant case clearly

shows that Mr. Wann was an independent contractor be-

cause the Fred Jones Company retained no right to control

the manner in which the air conditioning installation was

to be achieved. That is, the Fred Jones Company had no

right to control the physical details of the work to be done

by Mr. Wann. This decisive test is well pointed out in the

case of Sawin v, Nease, 186 Okl. 195, 97 P. 2d 27, 30-31,

wherein the court said:

“The cases discussing the law of independent con-

tractors are almost without number, and usually an

argument is easily obtained on the question whether in

a given situation, the pe’son in question is a servant

or an independent contractor; but when the numerous

judicial pronouncements are reduced to their decisive

substance it is found that the hub of the entire con-

troversy is whether the employer had the right to con-

trol, or purported or attempted to control the manner

of the doing of the thing by the alleged servant, which

resulted in the injury. !f he did have that right, or

exercised it regardless of his right to exercise it, then

the relationship is that of master and servant, regard-

less of what any existing, written contract may set forth

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on its face; if he did not have that right and did not

exercise such right, but had only the right to demand

specified results, the relationship is that of independent

contractor and contractee.’’

The Oklahoma Supreme Court in the early case of

Barnsdall Refining Co. v. The State Industrial Commission,

163 Okl. 154, 21 P. 2d 749, has set out some of the criteria

to be used in determining whether a party is the servant

or independent contractor. The Barnsdall case has been

consistently followed in Oklahoma. Ellis & Lewis, Inc., v.

Trimble, 177 Okl. 5, 57 P. 2d 244; Dierks Lumber & Coal Co.

vy. McDaniel, 188 Okl, 695, 112 P. 2d 1082; Taylor v. Hayes,

(Okla.) 261 P. 2d 599. The Barnsdall case states that the

following criteria are considered in determining whether a

party is an agent or an independent contractor :

«* * * (1) The degree of control exercised by

the employer, or the independence enjoyed by the con-

tractor or agent;

‘“6(2) Whether the party is to be paid by the jod

or is to receive a certain salary by the day, week, or

month;

‘«(3) Whether his employment consists solely in

working for this employer;

‘‘(4) The control that is exercised over him in the

method and manner of performing the work;

‘‘(5) Whether the agent uses his own equipment,

or whether the equipment, if any, so used, is owned and

controlled by the owner; and

(6) The nature of the contract, whether written

or oral.’’

-_- 7 —

Using these criteria to determine whether the relation-

ship is one of agency or that of an independent contractor,

the undisputed evidence in the instant case shows that:

(1) The Fred Jones Company exercised no con-

trol over Mr. Wann in the physical details of his work,

but merely told him that they expected a good job.

(Tr. 20)

(2) The Fred Jones Company paid Mr. Wann

by the job. (Tr. 20)

(3) Mr. Wann did not work exclusively for the

Fred Jone» Company, but did work for other people.

(Tr. 21)

(4) The Fred Jones Company exercised no con-

trol over Mr. Wann in the method and manner of per-

forming the installation of the air conditioner, (Tr. 20)

(5) Mr. Wann used his own equipment and tools

for the installation of the air conditioner. (Tr, 20)

(6) The contract was oral. (Tr. 21)

Therefore, it is seen that under all of these tests, the

undisputed facts in the instant case show that Mr. Wann

was an independent contractor at the time this accident

oceurred., i

However, assuming, but not admitting, that a presump-

tion of agency was, in fact, raised, the trial court in the

instant case specifically found that if there had been such a

presumption raised that it had been rebutted by the undis-

puted evidence in this ease. We would like to quote from

the transcript of record that part dealing with the argu-

ments had on the motion for a summary judgment (Tr.

37-89) :

“The Court: Well, let me interrupt you a mo-

ment. Now our question here is whether there will be

any genuine issue of fact as to the relationship which

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existed between Wann and Fred Jones, at the time this

aceident occurred. That is, whether there will be any

genuine issue ‘of fact as to the circumstances under

whieh Wann had possession of and was driving this car

at the time of the occurrence of the accident. If there

be any genuine issue of fact of course it would be a

jury question that would have to be submitted to the

jury. There isn’t any dispute about the ownership of

the vehicle; Fred Jones owned the vehicle. There

isn’t any dispute about Wann being the driver of the

vehicle at the time the accident occurred, But the ques-

tion—the ultimate question to be determined is whether

Wann was driving the vehicle as the agent——

Mr. MeNeill: That is——

The Court: Of Fred Jones, and within the scope

of his authority as such agent. Now that is the ultl-

mate question.

Mr. MeNeill: That is the ultimate question, and

when he is

The Court: Now then——

Mr. MeNeill: Pardon me

The Court: The depositions that have been taken

and have been filed and submitted in connection

with this motion for summary judgment establish in

my opinion that Wann was an independent contractor.

The car was taken to him under an arrangement where-

by he would install the air conditioning equipment in

the vehicle without any direction on the part of Fred

Jones as to the manner or method of installation, witl-

out any control over him whatever, except as to the

result. And that is the typical independent relationship:

Mr. MeNeill: Minus when you don’t take into con-

sideration the fact of the presumption—I don’t think—

in other words, the point I am trying to make, these

presumptions

The Court: These presumptions fall by the way |

when you get to the facts.

I eo

Mr. MeNeill: They may be rebutted.

The Court: Well, and the one you are talking

about has been.

Mr. MeNeill: Of course that is a question in oth-

er words I think actually to decide

The Court: Well now suppose we go and try this

case to the jury, suppose we empanel a jury and put

on all the evidence and the undisputed evidence in the

case demonstrates that Wann had possession of this

vehicle under an independent contractor relationship,

turned over to him for him to install this air condi-

tioning equipment and return it, just like you may leave

your car some place to have air conditioning equipment

installed with no supervision, no direction—no employ-

er-employee relationship existing

Mr. MeNeill: Well, Ll say we have still made——

The Court: I simply have to tell the jury that if

there ever was any presumption I tell them it has been

overcome by this evidence.

Mr. McNeill: Well, that is what I don’t think it

has been, your Honor.

The Court: Well now if you want to go around

talking about the evidence, that is something else; if

you can point to any evidence—any testimony in these

depositions which suggests an agency relationship IL

would be interested in hearing that.’’

The plaintiff, in her brief, touches lightly upon the

proposition that since the car in question was delivered to

Mr. Wann without a license displayed thereon that this

constituted an unlawful act. To charge a defendant with

liability for participating in an illegal act, the courts of

Oklahoma, as well as the courts in most sister states, hold

that before such illegal act is actionable, there must be some

causal connection between the illegal act in question and

the injury complained of. In the case of Marland Refining

aciapaiectiet Anebeniaaamhaanalba 5 P|

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-—10—

Co. v. Duffee, 94 Okl. 16, 220 Pac. 846, the plaintiff brought

suit for property damage to his vehicle which was prop-

erly parked on a street in Ponca City, Oklahoma. The de-

fendant, by way of answer, set up the absence of a license

plate on the plaintiff’s car as an illegal act which would

bar the plaintiff from recovery. The Supreme Court of

Oklahoma in refusing the defendant’s argument cites, at

page 851 of Pacific Reporter, to-wit:

‘“It is a well-established rule of law that one who

does an unlawful act is not thereby placed outside the

protection of the laws, but that, to have this effect, the

unlawful act must have some causal connection with

the injury complained of. In accord with this rule it

is held by the great weight of authority and the better

reasoned cases, that one who sustains injury to his per-

son or property by the negligence of another while

using or riding in an unlicensed automobile is not pre-

cluded from recovering by reason of the failure to com-

ply with statutes in effect providing that motor ve-

hicles shall be registered, and shall not be operated on

the highway unless they are registered, where the fail-

ure to register in compliance with the statute had no

causal connection with the injury.’’

The court went on to state since there was no causal

connection between the illegal act and the injury complained

of, the trial court was correct in refusing to give an in-

struction in regard to the absence of the license plate. In

the instant case, there is no evidence in the Transcript of

Record to show any causal connection between the absence

of a license plate on the car and the injuries sustained by

this plaintiff. The trial court in the hearing on the motion

to strike and to dismiss pointed out that there was no causal

relationship between the violation of the licensing statute

and the injury to the plaintiff as follows (Tr. 29):

ashe i heteen R

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‘‘The Court: Now then you make the allegation that

this car that Wann was driving did not have a license

tag on it, and that driving a car without a license tag

constitutes violation of the Statutes of the State of

Oklahoma.

Mr. MeNeill: That’s right.

The Court: Now, my point is, that doesn’t have

any more to do with the occurrence of this aecident—

any more to do with the negligent conduct which would

give rise to a cause of action against the driver of the

vehicle than would the fact that I might have driven

my car down this morning without a license tag on it.

There is no relationship—there is no proximate cause.’’

In the case of Bradley v. Chickasha Cotton Oil Co., 84

P, 2d 629, the Supreme Court of the State of Oklahoma held

that the illegal use of a license standing alone is not suf-

ficient to create the presumption of agency between the

owner and driver.

In the Bradley case the plaintiff sought to charge the

defendant with responsibility for personal injury sustained

by him when he was struck by a truck transporting cotton

belonging to the defendant company. At the time, the truck

was being operated in violation of the Motor Vehicle Law.

Plaintiff alleged that this arrangement was illegal and

therefore raised a presumption with the driver that owner

of the truck were the agents and servants of the defendant.

The trial court sustained a demurrer to the plaintiff’s evi-

dence, thus holding that mere proof of the violation of the

Motor Vehicle Law was not sufficient to raise a presumption

of agency between the defendant shipper and the driver

and/or the owner of the truck. The Supreme Court of Okla-

homa affirmed the trial court, stating there was no evidence

to indicate that the driver of the truck was other than an

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—12—

independent contractor, and that evidence of violation of

the Motor Vehicle Law becomes material on the question of

agency only if there is independent evidence of such re-

lationship.

The complainant cites Norton v. Harmon, 133 P. 2d

206, which is distinguishable from the instant case inso-

much as in that case there was a sharp conflict of evidence

as to whether or not the defendant Norton at the time of

the accident was engaged on a mission for his company of

which he was president, or whether he was engaged upon a

purely personal mission, The court properly recognized

that this sharp conflict in evidence »resented a question of

fact to be determined by the jury.

In view of the evidence and authority ened above, it is

submitted that the trial court correctiy sustained the Fred

Jones Company’s motion for summary judgment, and that

the trial court’s action and the Circuit Court of Appeals’

decision should be affirmed.

Since the evidence in the instant case was undisputed,

under the Oklahoma law, it became a question of law for

the trial judge to decide whether there was an agency re-

lationship or an independent contractor relationship. Such

was the holding of the Oklahoma Supreme Court in the

case of Cook v. Knox, 273 P. 2d 865.

We are not interested in the law in other states, but

the law in Oklahoma is that the ownership of the automo-

bile does not raise a presumption of agency.

In Randolph v. Schuth, 90 P. 2d 880, the Supreme Court

of Oklahoma held, in syllabus 1:

‘Where injury occr.rs by reason of the alleged neg-

ligent operation of an automobile by one other than the

ee, a

hg titans

- 13—

owner, the fact that the operator is in charge of the

automobile with the owner’s consent, raises no pre-

sumption of agency.”’

See also, Jamar vy, Brightwell, 19 P. 2d 366, et al.

We of course have no quarrel with the law laid down

in the two cases from the United States Supreme Court,

but it is quite apparent that the facts of these cases, and

the law peculiarly applicable to them, have no connection

whatsoever with the case at bar.

For example, in the case of Sartor v. Arkansas Natural

Gas Corp., four ayllabi of which are cited on pages 12 and

13 of the petitioner’s writ, syllabus 3 and 10 which are

copied here indicate very clearly the difference between the

two cases. After all, if a jury disregarded the testimony of

certain experts at one time, it certainly could not be assumed

that the trial court could accept the testimony of these ex-

perts as conclusive on the question of damages:

‘*3. Where undisputed facts leave the existence

of a cause of action depending on questions of damage,

summary judgment, if warranted upon any showing,

should be entered only upon such evidence as a jury

would not be at liberty to disbelieve and which would re-

quire a directed verdict for moving party. Federal

Rules of Civil Procedure, Rule 56(c), 28 U. S. C. A,

following Section 723¢.

“10. Affidavits of interested experts, whose opin-

ions jury refused to follow at previous trial, that mar-

ket price at well of gas produced under mineral leases

providing for calculation of gas royalties et the rate of

market price and not less than 3¢ per m. ¢. f. did not ex-

ceed 3c, stipulation showing that 10 per cent. of roy-

alty gas produced in same area under similar leases

was paid for at rate of 4c per m. ec. f. and exhibits did

not conclusively establish that market price of gas at

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well did not exceed 3c so as to justify summary judg-

ment that lessors who had received 3c per m. ¢. f. for

royalty gas were not entitled to additional royalties.

Federal Rules of Civil Procedure, Rule 56, 28 U. S.

C. A., following Section 723c.”’

The trial court and the Circuit Court of Appeals recog-

nize that if there was a genuine issue of fact the motion

for summary judgment should be overruled, but the trial

court kept insisting to plaintiff’s counsel that they point

out what facts they had proven or had available that would

make a genuine issue of fact.

There was no proper answer to this question, but coun-

sel for plaintiff kept insisting that if there had been a cer-

tain type of tag on the car, which there was not, then that

tag would have raised a presumption of agency, which

statement in our judgment was not supported by Oklahoma

law. They were relying upon a case from Oregon and from

New York State which had statutes making the laws of

those two states different from those of Oklahoma.

We most respectfully insist that criticism of the opin-

ion of the United States Cireuit Court of Appeals in which

they refer to that portion in which it is said, ‘‘the company

had no power of direction or control over Wann in doing

the work. It had no authority to direct him to do anything.

He was free to do the work in any manner he saw fit. The

company did neither direct him to road test or refrain him

from road testing the installation’? was wholly unsupport-

ed by the evidence or reasonable inference therefrom, is

quite unealled for.

We call attention to the fact that this was a unanimous

decision of the Cirenit Court of Appeals. So the trial judge,

Pe id

~ 18—

and three appellate judges, or four judges, have passed

upon this matter.

Kach, we must presume, was honestly and conscientious-

ly trying to state the facts and we do not believe that the

inference that the facts were misstated or an improper con-

clusion drawn is borne out by the record.

Referring to the deposition of Mr. Brann, manager of

Fred Jones, on pages 22, 23, 24, and 25 of the transcript,

23, Mr. Brann stated that they used several different air

conditioning people on installations, they do not install

them, he knows nothing about them, he only sells them, ar-

rangements with Mr. Wann was made by a contract with

him, every job is an individual job, not only with him but

with several other garages, they get a figure on what they

are going to charge on a contract basis, more specifically

on 24 when asked a question about air conditioners he an-

swered, ‘‘A. I don’t know, I’m not an air conditioning man,

You are getting a little too technical for me there because

1 don’t know even where the lines run, I just sell them.’’

Referring to the testimony of Mr. Wann on pages 20

and 21 of the transcript you will find that he and another

man were partners in the Creekmore Motor Company. That

at the time of the accident that the sign and telephone was

listed under Creekmore Motor Service. That he was paid

on a job basis, that he used his own materials, worked his

own hours, he was not told by Fred Jones how to install

them, except they wanted a good job, that he worked differ-

ent hours, that he is a general mechanic, does work for the

public.

We most respectfully insist that under this evidence,

the trial court and the Cireuit Court of Appeals were cer-

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tainly warranted in the statement that they made in their

opinion.

This situation is no different than if the reader or the

writer of this brief were to take his automobile to Mr. Wann

to have him install an air conditioner. Mr. Wann is engaged

as a general automobile mechanic, with a place of busi-

ness in Tulsa, Oklahoma, and is ready and willing at all

times to install air conditioners for either the reader or the

writer of this brief, Fred Jones, or any other customer that

cares to make arrangements with him. He is a pure and

simple independent contractor, and in this instance there

is no more liability upon Fred Jones than there is upon

either the reader or the writer of this brief if we were to

deliver our car to Rex Wann for the purpose of doing any

type of work upon our automobile.

And if Wann be an interested witness, he would be in-

terested on behalf of the plaintiff recovering a judgment

against Fred Jones in order that he be completely or par-

tially absolved of liability to the plaintiff.

We most respectfully insist that the writ be denied and

the unanimous opinion of the United States Cireuit Coart

of Appeals for the Tenth Circuit be affirmed.

TRUMAN B. RUCKER,

608 Wright Bldg.,

Tulsa, Oklahoma,

Attorneys for Respondent.

—---

-ji7-_

APPENDIX.

Appendix A.

DEPOSITION OF REX WANN (Tr., pp. 18-21).

In the District Court of Tulsa County, Oklahoma. Ma-

tilda Hines, Plaintiff, vs. Fred Jones Company, an Okla-

homa Corporation, ef al., Defendants, No. 87060.

Direct Examination by N. E. MeNeill, Jr.

Rex Wann, one of the defendants, a general mechanic,

with his then partner, Louis Jones, leased and operated

Creekmore Motor Service; was the driver of the Lincoln

automobile involved in the accident with Mrs. Hines on

January 7, 1954, at Admiral and New Haven.

Did not know the owner of the car; Fred Jones Com-

pany brought it to him to install an air conditioner in it;

did not know the name of the person that brought it.

The Fred Jones Company brought the air conditioner ;

prior to the accident he had installed an air conditioner in

about 20 cars and in about 50 cars since; nothing had ever

been said about delivering the cars back to Fred Joues

Company, that is to their possession. I figured about fifty

per cent of the time I would take the car back and they

would bring me back; other times they would come and

get it.

In installing an air conditioner you have to pull the

crank shaft, pull the generator loose, take the fan off, put the

condenser in the front, run lines under the car, cut holes and

vents in the back and install the evaporator in the trunk.

There is just one way to install that unit. About ninety per

cent of the time, there being about 200 pounds in a unit,

there is some rattle or something in the back. The lines or

fan belt might be loose. I put them in for Fred Jones; they

leave the car over night and we recheck them again the

next day. We recheck them by leaving them run a while.

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Appendiz od Append's

We had a factory man out the other day; had five or six

units that wasn’t getting cold enough and had to drive them

on the road to set them. It is impossible to set them with

a gauge. In order to do the proper installation it is neces-

sary to road test them, that is drive them on the road.

I was road testing the car on East Admiral Place, the

only place you can road test one is on Admiral Place where

my shop is and I was road testing it at the time of the ac-

cident. When I worked for Lincoln-Mercury I used to road

test them on Riverside Drive or on 13th Street. I worked

for Lincoln-Mercury from 1950 to 1953. The Lincoln-

Mercury is the Fred Jones Company. When the car was

delivered to me it had no license plate of any sort attached.

The speedometer was not hooked up or anything. Of

the 20 cars for Fred Jones Company that he had installed

air conditioners in prior to the accident about fifty per cent

of them had license tags of some kind on the same. The road

testing after the installation of an air conditioner is what

might be called a standard procedure. When working for

Fred Jones Company he installed air conditioners.

When working for Fred Jones Company we would road

test them four or five times and the service manager would

have to try them out to see if they were cold enough. The

general practice after installing an air conditioner is to

road test the same. It is almost impossible to get one to

run without road testing the same. It almost has to be a

standard procedure to road test the car after the air con-

ditioner is installed.

Cross-Examination by Mr. Ward.

He and Louis Jones were partners and leased the Creek-

more Motor Company building. They operated on a fifty-

fifty basis.

Redirect Examination by N. E. McNeill, Jr.

At the time of the accident the sign and telephone was

listed under Creekmore Motor Service.

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Appendiz Appenats

Cross-Examination by Mr. Cox.

Q. Now as I understand it, they would bring these

cars out to you to have the air conditioner installed in them?

A. Yes.

Q. And fifty per cent of the time you would take it

back or they would come after the car after it was com-

pletes; is that correct? A. Yes, sir.

Q. How were you paid—on a per job basis or on a

monthly salary? <A. Job basis.

Q. Did you use your own equipment—what I mean

for the installation? A. Yes, you have those drills and such

as that.

Q. I understand that Fred Jones, Incorporated, fur-

nished the air conditioner, but you used your own equip-

ment to install it? A. Yes.

Q. Did you have any written agreement with Fred

Jones, Incorporated, on this work? A. No.

Q. Did Fred Jones tell you how to install it, or as you

put it there is only one way to do it? A. There is just vhe

one way. They would tell me they wanted a good job.

(). What time of night or time of day did this accident

happen? A. About twenty until seven.

Q. About 6:40 p.m. A. That’s right.

Q. What is your usual working hours at the garage?

A. Well, sometimes I work until midnight, sometimes I go

to work at six o’clock in the morning.

Q. What is your usual hours out there? A. Well, I

usually work from about seven to about eight o’clock, I

would say.

Q. I believe you stated that you do general mechanic

work; is that correct? A. Well, it is; once in a while I put

ina set of rings, but very seldom. It is usually tuneup and

air conditioner work.

Q. In other words, you don’t work exclusively for

Fred Jones? A. No.

Q. You do other work for other people? A. Yes.

Q. Did you have any written sontract with Fred Jones

on this installation? A. No.

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—20—-

Appendiz Appendis

Mr. Cox: That’s all.

Mr. Ward: That’s all.

Mr. MeNeill: I think that’s all.

Appendix B.

DEPOSITION OF C. C. BRANN.

Taken January 20, 1955. (Tr., pp. 22-25.)

Appearances: For the plaintiff, Mr. Neil MeNeill. For

the defendants, Fred Jones Company, Mr. Gurney Cox.

Direct Examination by Mr. MeNeill.

Is the manager of the Fred Jones Company, Tulsa

Oklahoma.

The company was the owner of the automobile involved

in the accident. It has a franchise and license from Okla-

homa Tax Commission to sell Lincoln cars.

This car was not a second hand ear or used ear or used

for service car or for hire or for public or private purposes

but was a new car kept for sale. Every year it receives

dealers’ license plates from the Tax Commission.

Q. Was this automobile listed with the Tax Commis-

sion? A. Not at that time.

Q. Not at that time. When are these automobiles list-

ed with the Tax Commission? A. When we sell them.

Did not know whether a dealer’s plate was on the auto-

mobile at the time of the accident. If there was a license

plate on the car it would have been none other type of li-

cense than a dealer’s license plate.

He did not know the arrangements in this particular

instance made with Rex Wann about installation of air con-

ditioner. We use several different air conditioning people

on installations.

Q. Let me try to clarify that question a little. What

I mean, if a customer, or a prospective customer walks in

Appendix se Appendtz

here and he would like a ’54 55 certain style Mercury, a

certain style with certain accessories, including an air con-

ditioner in it, is that the only time you install them, or do

you install them for future owners from what you might

say stock? A. We stock ours with air conditioning. Yes, we

have several in stock right now.

The installation in this car was in a car that was ior

sale. Knew Mr. Wann personally; he worked for Fred

Jones Company from May 10, 1950, to February 4, 1953.

Arrangements with Mr. Wann was that they made a

contract with him. ‘‘That is, every job is an individual

job, not only with him but with several others.’”’ We get a

figure of what they are going to charge us on a contract

basis. ‘I don’t know what this particular job.’’ Did not

know what arrangements were made about taking the car

to and from Wann’s place of business. Usually the car

and the air conditioner is sent to the people that install it.

Sometimes we pick them up after installation and some-

times they bring them back to us. I don’t know in this

particular case.

(. Do you install air conditioners here in your own

garage? A. Well, we have, but we haven’t in the last couple

of years. You have to have a licensed man to do that and

we don’t have one at the present time.

(). You mean, that is licensed by the City? A. The

City, I guess.

Q. I didn’t know whether it was by the City or the

Company that puts out the air conditioner. A. I think it

is the City.

I am not familiar with the practice of road testing the

automobile after an air conditioner has been installed.

He was asked the following question and gave the fol-

lowing answer:

That is, do you know that the practice takes place and

that it is done?

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—22—

Appendiz Appendiz

It isn’t necessary.

At their garage the only time they road test a car is

before they deliver it. It is not necessary to road test a

ear for air conditioning.

Q. If there was a defect in the installation, how would

you determine that before it was delivered? A. It wouldn’t

work.

Q. How would you determine it? A. Well, if you turn

on the air conditioner, and the car doesn’t have to be run-

ning—I mean rolling—your motor has to be running, and

if it won’t put out the cold air, it isn’t working.

Q. And the lines run from the compressor to the coils

in the trunk, and if those lines are so installed that in the

turning of a car say for instance, they might be pinched,

that would cause a defective operation of it. A. Well, I

don’t know. I am not an air conditioning man. You are

getting a little too technical for me there, because I don’t

even know where the lines run, I just sell them.

Q. Do you know as a matter of fact, that it is common

practice among companies that install air conditioning units

in automobiles, to road test the automobile after the air

conditioning unit has been installed? A. I can’t answer

that.

Q. In other words, you don’t know one way or al-

other? A. No, I don’t.

Did not know if it was the practice of Mr. Wann to

road test the automobile after installation or whether any

orders were given to him.

He imagined that Mr. Hargrave or Mr. Nelson dealt

with Mr. Wann. They were employees of the company.

Q. But to your knowledge there were never any in-

structions given to Mr. Wann not to road test or drive the

automobile? A. Well, I don’t know because

Q. I said, to your knowledge. A. No. I see no reason

for it.

—23—

Appendix Appendiz

Appendix C.

PROCEEDINGS, April 12, 1955. (Tr., pp. 27, 28-31.)

The Court: Isn’t this your question here: Fred Jones

turned this automobile over to Wann, to have an air condi-

tioner installed, and according to the allegations of your

complaint in connection with the installation of this air

conditioner it was necessary for Wann to drive the car for

the purpose of testing the installation.

Mr. MeNeill: That’s right, as contemplated by the

parties.

The Court: And while Wann was driving the car he

had a collision resulting from negligence on his part—a col-

lision with your car; and you seek to recover against Fred

Jones on the theory that at the time the car was driven by

Wann he was acting as the agent of Fred Jones.

Mr. MeNeill: As the agent and servant and in other

words, that the fact that the violation of this——

The Court: Now then you make the allegation that

this car that Wann was driving did not have a license tag

on it, and that driving a car without a license tag consti-

tutes violation of the statutes of the State of Oklahoma.

Mr. McNeill: That’s right.

The Court: Now my point is, that doesn’t have any

more to do with the occurrence of this accident—any more

to do with the negligent conduct which would give rise to a

cause of action against the driver of the vehicle than would

the fact that I might have driven my car down this morn-

ing without a license tag on it. There is no relationship—

there is no proximate cause.

Mr. MeNeill: Your Honor has missed the point that I

am trying to make which is that this is a pertinent allega-

tion, if not on the question of negligence, as tending to

prove the agency relationship.

iD TNE ERIE ce |

Oe harlow: Roa Dak se SR 4

— 94—

Appendix Appendiz

The Court: Well how could it tend to establish an

agency relationship? The fact that there is no tag on this

car.

Mr. McNeill: Because in other words you have—in oth-

er words, a joint combination to commit an unlawful act—

in other words, that is really—in other words as I cite those

first two cases—that was the question they were concerned

with. Of course it was dicta in

The Court: In both of those cases you have a situation

were the owner of the truck didn’t have a permit to operate

the truck over the highways of the state in conformity with

the Motor Carrier Act, and the owner of the vehicle then

entered into an arrangement with the party who did have a

permit, to operate it under that party’s permit.

Mr. MeNeill: That is the first case—the Bradley case,

The Court: Now in that situation you do have an ar-

rangement pertaining to an unlawiul act, which might have

some bearing on the question of agency. In other words

you have a truck and you don’t have a permit, you can’t

operate it, and you make arrangements for it to be opera-

ted under a permit that I have, why you do have some eVi-

dence there which perhaps might tend to establish a master

and servant relationship. But here the question of wheth-

er this automobile had a license tag on it or whether it was

covered with license tags would not have anything to do

with the relationship between these parties.

Mr. MeNeill: It has the same relationship Your Honor

in the Marion ease, it was just the reverse; if you recall

under the Bradley case they were operating under a per-

mit owned by the Cotton Seed Oil Company; in the Marion

case the machinery was being trucked up without a permit

at all—had no permit, and they sought to bring it in in

that case, and the court in that case, well the language of

the court, they didn’t let it go in, bat they said, it should

not go in because there was no other evidence to show mas-

ter and servant relationship.

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—25—

Appendiz Appendis

The Court: Well is that the only point you have on

this question?

Mr. MeNeill: Well of course since Your Honor has

evidently repudiated my theory on the question of negli-

gence I still think it is a proper allegation to be contained

in a petition and relied upon at the time of trial in regard

to the other evidence. In other words, after the evidence—

at the proper time in other words I think we can show that

this will have a bearing—taken in connection with the other

evidence on whether there is an agency—tending to prove

an agency relationship—a master and servant relationship

as between Fred Jones, and Wann.

The Court: Well, I don’t think so.

Appendix D.

PROCEEDINGS, April 18, 1955. (Tr., pp. 33, 37-39.)

« - * * ” * s +

The Court: Well let me interrupt you a moment. Now

our question here is whether there will be any genuine is-

sue of fact as to the relationship which existed between

Wann and Fred Jones, at the time this accident occurred.

That is, whether there will be any genuine issue of fact as

to the circumstances under which Wann had the possession

of and was driving this car at the time of the occurrence

of the accident. If there be any genuine issue of fact of

course it would be # jury question that would have to be

submitted to the jury. There isn’t any dispute about the

ownership of the vehicle; Fred Jones owned the vehicle.

There isn’t any dispute about Wann being the driver of the

vehicle at the time the accident occurred. But the question

—the ultimate question to be determined is whether Wann

was driving the vehicle as the agent

Mr. MeNeill: That is——

The Court: Of Fred Jones, and within the scope of

his authority as such agent. Now that is the ultimate ques-

tion.

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Appendiz Appendiz

Mr. MeNeill: That is the ultimate question, and when

he is——

The Court: Now then——

Mr. MeNeill: Pardon me

The Court: The depositions that have been taken and

have been filed and submitted in connection with this mo-

tion for summary judgment establish in my judgment that

Wann was an independent contractor. The car was taken

to him under an arrangement whereby he would install air

conditioning equipment in the vehicle without any diree-

tion on the part of Fred Jones as to the manner or method

of installation, without any control over him whatever ex-

cept as to the result. And that is the typical independent

relationship.

Mr. MeNeill: Minus when you don’t take into consid-

eration the fact of the presumption—I don’t think—in oth-

er words, the point I am trying to make, these presump-

tions——

The Court: These presumptions fall by the way when

you get to the facts.

Mr. MeNeill: They may be rebutted.

The Court: Well, and the one you are talking about

has been.

Mr. MeNeill: Of course that is a question in other

words I think actually to decide——

The Court: Well now suppose we go and try this case

to the jury, suppose we empanel a jury and put on all the

evidence and the undisputed evidence in the case demon-

strates that Wann lad possession of this vehicle under an

independent contractor relationship, turned over to him for

him to install this air conditioning equipment and return

it, just like you may leave your car someplace to have air

conditioning equipment installed with no supervision, no

direction—no employer-employee relationship existing——

Mr. MeNeill: Well I say we have still made——

The Court: I simply have to tell the jury that if there

DL sgl fe AS Rae OIE? «gE } ROME STE PET er

— 27—

Appendiz , Appendiz

ever was any presumption [| tell them it has been overcome

by this evidence.

Mr. MeNeill: Well, that is what I don’t think it las

been, Your Honor.

The Court: Well now if you want to go around talk-

ing about the evidence, that is something else; if you ean

point to any evidence—any testimony in these depositions

which suggests an agency relationship I would be interested

in hearing that.

4 Mr. McNeill: Well in other words I will put it this

< way: I’m not going to point to any testimony in this from

' adisinterested witness that is going to refute it; I point to

# this: I say a presumption has been raised and I don’t be-

p lieve there is sufficient testimony here to refute that pre-

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sumption. I believe if the case went on for trial on just

what has been—if we had, just as far as the agency re-

lationship was concerned, on just the depositions, that are

on file here coupled with the admission of ownership of the

automobile, that the Court would be in error in saying that

the presumption had been refuted.

The Court: Well if I am going to be in error in that

respect I might as well be now, because that is an error

that I am going to have to ultimately commit.

(Tr., pp 42-43) The Court: Well, I was of the opinion

that you were very wide of the mark on that proposition. I

couldn’t see how it would have any bearing on the agency

question. And I am satisfied that there is no genuine issue

of fact with respect to the relationship of the parties, that

Wann was an independent contractor and that Fred Jones

has no liability. And I am going to sustain the motion for

summary judgment.

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