599 So. 2d 1210 | Ala. Civ. App. | 1992
This is a trespass case.
In December 1989 Frank and Madgie Argo filed suit against Kenny Collum, Collum Motors and Mobile Homes (CMMH), and Stanley Wilson for trespass, intentional trespass, and statutory relief under §§
After an ore tenus proceeding was held on the complaint, the court entered judgment "in favor of the plaintiffs and against the defendants," and awarded damages of $7,500. Collum and CMMH filed a motion for new trial, which was denied, and this appeal ensued. Wilson did not join in the postjudgment motion and is not a party to this appeal.
We begin our review by noting the following pertinent facts: In August 1989 Kenny Collum sold a mobile home to William and Teresa Dawson. Financing for the purchase was arranged through CMMH and included an amount necessary for the installation of a septic tank and field lines for the Dawsons' mobile home. The Dawsons were unable to find a contractor for the installation and asked Collum to locate someone for them. He subsequently contacted Stanley Wilson, who agreed to perform the septic tank work.
The Dawsons' mobile home lot was adjoined by the Argos' property. In the course of installing the tank and field lines *1212 for the Dawsons, Wilson and his crew of workers crossed over onto the Argos' property and pushed over twelve to twenty trees belonging to the Argos. Mr. Argo immediately informed Wilson of the trespass. The Argos subsequently attempted to obtain reimbursal from Wilson for the damage to their property and ultimately filed suit.
The Argos' complaint is based in part on §§
The Argos' complaint is also based on both the theory of general trespass and the theory of "trespass on the case." An employer's liability for general trespass is based on the doctrine of respondeat superior; that is, an employer may be liable for consequential damages when his employee, acting within the course of the employer's business, wrongfully trespasses on the property of another. C.O. Osborn ContractingCo. v. Alabama Gas Corp.,
To recover damages from Collum and CMMH based on §§
The test for determining whether one is an agent or employee, as opposed to an independent contractor, is whether the alleged employer has reserved the right of control over the means and method by which the work is done. Branco Wood Products, Inc. v.C.C. Huxford, Jr. Grandchildren's Trust Dated December 31,1976,
At trial, Wilson testified that he is a self-employed independent contractor and has never been an employee of Kenny Collum or CMMH. Wilson stated that Collum merely referred him to the Dawsons for the septic tank job and that it was the first time he had gotten a referral from him. The Dawsons obtained a plan from the local health department for the placement of the tank and gave the plan to Collum, who passed it along to Wilson. There was no employment contract between Wilson and Collum or CMMH. Wilson provided all the tools and materials for the job and employed his own crew of assistants.
The record shows that Collum did not supervise any aspect of the work and that Wilson was not accountable to him for the methods and procedures that were followed. Collum did not impose any time *1213 limit on Wilson, and there is no evidence that he inquired about or otherwise attempted to monitor the work while it was in progress. Indeed, there is nothing to indicate that he would have had the right to do so. When Wilson completed the job, Collum paid him on behalf of the Dawsons, with funds set aside for that purpose from the mobile home loan that CMMH had financed for the Dawsons.
After reviewing this and other evidence in the record, we must conclude that there was no employer-employee relationship between Collum and Wilson. Instead, the record indicates that Collum merely acted as an agent of the Dawsons and engaged Wilson to install the septic tank at their behest. He did not have any right of control over the work to be performed and certainly did not direct Wilson to trespass onto the Argo property. Accordingly, Collum cannot be subjected to liability under §§
REVERSED AND REMANDED WITH INSTRUCTIONS.
All the Judges concur.