178 So. 59 | Ala. Ct. App. | 1937
Lead Opinion
This is the second appeal in this case. The opinion on the former appeal will be found in Daves et al. v. Rain,
On that appeal the question was whether or not the board of school commissioners of Mobile county could be made to answer as garnishee under section 8088 of the Code of 1923. In that appeal all of the questions incident to the litigation were settled except the one question presented on this appeal, which is: What was the relation between the board of school commissioners of Mobile county and B. A. Lyons, the defendant in the original suit; i. e., was Lyons an independent contractor or an employee under a contract entered into by and between the parties set out in the bill of exceptions? That being the sole controversy now being litigated and brought to this court for review.
The present action was not brought under the "Employer's Liability Act," and, therefore, the question as to who did, or did not, constitute an employee under that act may not now be a material factor; for the reason, that the "Employer's Liability Act" defines both an employee and an employer. Section 7596 of the Code of 1923 defines very minutely what is an employer and what is an employee, and our Supreme Court in Sloss-Sheffield Steel Iron Company v. Crim,
In a construction of the contract in the instant case, therefore, we must be governed by the rules of the common law in a determination of whether the contract in this case creates the relation of an independent contractor or that of master and servant.
"Generally speaking, the term 'independent contractor' signifies one, who, exercising an independent employment, contracts to do a piece of work according to his own methods, and without being subject to the control of his employer, except as to the result of the work." 31 Corpus Juris, 473, note 25. In Martin v. Republic Steel Co.,
In the contract of employment is found the following clause: "To forestall the possible drawing of erroneous inferences from this Article of the contract, it is hereby expressly agreed and declared that it is the understanding of the parties hereto, that the Contractor, in the performance of this contract, is not an agent or servant or employee of the Board, but is an independent contractor for whose acts no liability could rest on the Board, even if the Board could be held liable like a private corporation. And the Board hereby declares again, that it is an arm of the State and is not subject to suit or other adversary effort to enforce asserted liability."
The fact that the parties have designated the employee under the contract as an independent contractor, does not, of itself, determine the character of the relationship. As was declared in Brown Sons Lumber Co. v. Crossley,
The relationship of the parties as to whether Lyons was an independent contractor or, an employee of the board, is to *58 be gathered from the entire contract, and if it appears from such consideration that Lyons is an employee, it must be so declared, although there is a definite expression in the contract that he is an independent contractor.
It is pointed out in brief of appellee that in rendering service under the contract Lyons agreed and did furnish the chassis and motor for the school bus used in the transportation of the children, and that he also furnished the gas and oil. But this is not a determining factor in construing the contract. The fact that the servant makes use of his own property in performing the service for the master does not prevent the relationship of that being master and servant. 39 Corpus Juris, 37 (7) e. This principal was so recognized in the case of Tuscaloosa Veneer Co. et al. v. Martin,
It is the general rule of the common law that the relationship of master and servant exists whenever the employer retains the right to direct the manner in which the business shall be done, as well as the result to be accomplished, or, in other words, not only what shall be done, but how it shall be done. Inasmuch as the right to control involves the power to discharge, the existence of the power to discharge is essential, and is an indicium of relationship. The above is paraphrased from the text of 39 Corpus Juris, 35 (4) c, where many cases from this and other jurisdictions are collated under note 23. One of which is the case of the Ala. Fuel Co., etc., v. Smith,
After a careful consideration of this contract, and applying the rules relative to this class of cases, we have reached the conclusion that the contract was one of employment and creates the relationship of master and servant.
It therefore follows that the court erred to a reversal in its rulings contrary to the above, and for that error the judgment is reversed and the cause is remanded.
Reversed and remanded.
Addendum
Affirmed on authority of Ex parte Board of School Commissioners,
