89 S.W.2d 354 | Tenn. Ct. App. | 1935
The plaintiff was struck and injured by a truck owned by the Lassley-Bass Transfer Company and operated by its servant while the plaintiff was walking across Third Avenue South, in the city of Nashville. This action was brought by him against the Louisville Nashville Railroad Company for damages for negligence of the driver upon the theory that the Lassley-Bass Transfer Company was at the time of the accident acting as an agent of the railroad company and engaged as such in its business. Upon the trial, at the close of the evidence offered by the plaintiff, the trial judge sustained the defendant's motion for peremptory instructions and dismissed the suit, upon the ground that the only conclusion to be drawn from the evidence was that the Lassley-Bass Transfer Company was an independent contractor. The sole question here presented is whether or not this was error.
Seeking to enlarge its shipping facilities, the railroad company had inaugurated a system of receiving from or delivering to its shippers their outgoing and incoming freight at their places of business. This is termed "pick-up and delivery service." For this purpose the railroad company entered into contracts with all of the transfer companies in Nashville, whereby each was subject to call for such service during a week or other period exclusively of the others, during the year. During the week in which plaintiff was hurt, the Lassley-Bass Transfer Company did all of the "pick-up and delivery service" for the railroad company when called upon and did no work for others, although at other times it was generally *384 engaged in a transfer business. The accident occurred while the truck was being driven, and occupied alone by a servant of its owner, for the purpose of obtaining goods from a shipper, to be carried to the railroad company's freight house, pursuant to a call from its freight clerk.
Under its contract the Lassley-Bass Transfer Company provided the servants and truck and operated it without direction, or provision for direction of operation, by the carrier. It collected the freight charges, gave receipts therefor, accounted for the moneys, and delivered to the carrier the freight bills and orders. It was an insurer of the freight while in its possession. It convenanted to protect, save harmless, and indemnify the carrier from and against all loss, damages, costs, and expenses that might be suffered by the carrier, or any other persons, or account of injury to or death of persons, loss or destruction of or damage or delay to property, caused by negligence of the transfer company's employees, in performing or failing to perform its duties under the contract, issuance of any fraudulent bills of lading or giving of false receipts by its agents, failure to make collections and remittances, theft, embezzlement, or defalcation on the part of the transfer company or its agents. The carrier was authorized to procure and keep in full force for the carrier's protection public liability and property damage insurance on all of the transfer company's vehicles used by it in transporting freight under the agreement; and also insurance for the carrier's protection against loss, damage, or delay of freight, or on account of issuance of any fraudulent bills of lading or receipts for freight — all premiums for such insurance to be paid by the transfer company by deductions from its compensation. For its services the compensation of the transfer company was fixed at 7 1/2 cents per one hundred pounds of freight handled by it to or from the carrier's depot. It was expressly stipulated that it was the intention of the parties that the transfer company would be and remain an independent contractor and that nothing therein contained should be construed inconsistently with that status; and that the transfer company would not display the name or any advertisement of the carrier upon any of its vehicles. The contract was to be in force for one year and thereafter until terminated by either party or thirty days' written notice to the other party; and the carrier reserved the right to terminate the contract for inability of the transfer company to procure the insurance or keep it in force, or for unsatisfactory service, or because of modification or abrogation of the contract by any order of a federal or state commission or decree of court, or for act of the transfer company in picking up or delivering freight for any carrier operating on any highway in competition with rail transportation service of carriers, or engaging itself in such transportation of freight in such competition. *385
The first contentions made in behalf of the plaintiff are: (a) That the railroad company merely extended its franchises and operations when it began the practice of gathering freight by sending to the premises of shippers; (b) that it was in the exercise of a power confided to it alone by the Legislature and nondelegable; (c) that it cannot escape responsibility for the acts of any instrumentality which it may use under its charter and legal privileges; (d) that it adopted this method of gathering freight and followed it for profit and by virtue of its corporate purposes and essentially as an extension of its granted right to act as a common carrier; and (e) that the truck driver was on a mission having a direct connection with the railroad company and was the agent through whom that company had chosen to augment its revenues. As the basis of these contentions, the rule is invoked that a public or quasi-public corporation cannot farm out its franchises. It is said by counsel: "Nor can it escape responsibility for injuries inflicted upon the public while contracting through an instrumentality that pro hac vice was a direct emanation from that corporation's right to pick up freight and to exercise its functions upon the streets of Nashville. The law will not tolerate the use of that convenient device known as an independent contractorship. Railroads are not permitted to carry on their corporate business in any way without that wholesome accompaniment of responsibility for damages inflicted by those agencies."
It is true that a railroad company cannot delegate the exercise of its franchise to individuals or others not authorized by law to carry on such business. Briggs v. Clawson Brothers,
We have no doubt that the contract herein involved was within the power of the railroad company to make.
It did not provide for any extension of the line of its railroad but a mere service of transportation. Therefore it did not violate the prohibitions of the Interstate Commerce Act, sec. 1, par. 18, 49 U.S.C.A., sec. 1(18), against an extension of a line of railroad without a certificate of convenience and necessity from the Interstate Commerce Commission. This distinction is clearly demonstrated in the opinion of the United States Circuit Court of Appeals, Third Circuit, in New York Dock Railway v. Pa. R. Co., reported in
"So long as the public are served to their reasonable satisfaction, it is a matter of no importance who serves them. The railroad company performs its whole duty to the public at large and to each individual when it affords the public all reasonable express accommodations. If this is done the railroad company owes no duty to the public as to the particular agencies it shall select for that purpose. The public require the carriage, but the company may choose its own appropriate means of carriage, always provided they are such as to insure reasonable promptness and security."
We therefore conclude that the transfer company was not the attempted transferee of a franchise granted to the carrier; that it was not exercising some charter power or privilege of the railroad company which it could not have exercised independent of the charter; and the power to contract being sustained, it must now be determined whether or not the issue of liability of the defendant carrier should have been submitted to the jury. The contract must be construed to determine whether or not reasonable minds might differ as to the relation which it created. It is familiar law that an "independent contractor" is one who, exercising an independent employment, contracts to do a piece of work according to his own methods and without being subject to control of his employer, except as to the result of his work. The ultimate question is not whether the employer actually exercises control, but whether he has the right *387
to the control of essential details. Gulf Refining Co. v. Huffman Weakley,
In Standard Oil Co. v. Parkinson (Circuit Court of Appeals, Eighth Circuit) 152 F., 681, 682, the rule was more elaborately stated as follows:
"The test of one's liability for the act or omission of his alleged servant is his right and power to direct and control his imputed agent in the performance of the causal act or omission at the very instant of the act or neglect. There can be no recovery of a person for the act or omission of his alleged servant under the maxim, `respondeat superior,' in the absence of the right and power in the former to command or direct the latter in the performance of the act or omission charged, because in such a case there is no superior to respond. Brady v. Chicago Great Western R. Co., 114 F., 100, 107, 52 C.C.A., 48, 55, 57 L.R.A., 712; Atwood v. Railway Co. (C.C.), 72 F., 447, 454, 455; Byrne v. Railroad Co., 61 F., 605, 608, 9 C.C.A., 666, 24 L.R.A., 693; Hilsdorf v. City of St. Louis, 45 Mo. 94, 98, 100 Am. Dec., 352; Town of Pawlet v. Rutland W.R. Co.,
All these rules are guides to the proper conclusion from the contract and the situation and conduct of the parties.
In Gulf Refining Co. v. Huffman Weakley, supra, the question whether or not a party to a contract for handling of gasoline and oils was an independent contractor was held to be a mixed question of law and fact, so that the issue of liability of the furnisher of these materials for negligence of the other party was treated as properly submitted to the jury. This was likewise held, upon the authority of that decision, in Texas Company v. Ingram,
In the instant case the evidence shows without dispute that the transfer company was, at the time of the accident, engaged in performing its contractual obligations to the carrier. Aside from the contract there are no material facts other than those heretofore recited. If there was a right of control, it must be found in the contract. If it did not constitute the transfer company an employee of the railroad company, the transfer company must be treated as an independent contractor with reference to the plaintiff.
As to freedom from the control of the employer as respects the manner in which the details of the work are to be executed, the following statement of the law, quoted in the opinion in Odom v. Sanford Treadway,
"`As a practical proposition, every contract for work to be done reserves to the employer a certain degree of control, — at least to enable him to see that the contract is performed according to the specifications. The employer may exercise a limited control over the work without rendering the employee a mere servant, for the relation of master and servant is not inferable from the reservation of powers which do not deprive the contractor of his right to do the work according to his own initiative so long as he does it in accordance with the contract. The control of the work reserved in the employer which makes the employee a mere servant is a control, not only of the result of the work, but also of the means and manner of the performance thereof; where the employee represents the will of the employer as to the result of the work but not as to the means or manner of accomplishment, he is an independent contractor. Thus a person employed to perform certain work is not necessarily a mere servant because the contract provides that the work shall be subject to the approval or satisfaction of the employer. Such a provision is not an assumption by the employer of the right to control the employee as to the details or methods of doing the work, but is only that the employer may see that the contract is carried out according to the plans.'"
The contract sets forth the whole plan of service, with many details; but the details are of results accruing to the carrier and not details of operation to accomplish those results. There was no reservation of right to tell the transfer company what kind of trucks to use *389 or what servants to employ, or the size of a load, or how to box and crate the freight, or what streets to travel — only at last getting and delivering the freight to or from the carrier's depot, collecting the freight charges, and accounting for them. All the rest was left with the transfer company and under its control. Necessarily the service was to be performed when needed by the carrier; but it is not essential to the status of an independent contractor that he be in actual service at all hours. The test is his status when he is in service under the contract.
The question is not controlled by the mere fact that the compensation was paid by the piece or job. Phillips v. Tennessee Eastman Corp., supra. That case involved claim for compensation for the death of a man from the falling of a tree while engaged in performance of a contract in writing, by the terms of which he undertook to cut and pile a given number of cords of chemical wood, within a stipulated distance from the railroad for a consideration of a certain sum a cord. Specifications covering sizes, lengths, nature, and quality of the wood, and the manner of piling were set forth in the written contract in detail. It was provided that the work was to be started and completed within a certain period; that the deceased was to keep employed an average of not less than two men until the work should be completed; and that the cutting was to be done upon a certain tract of land described in the contract. The court held that the deceased was an independent contractor; that there was no reservation of the right to control the conduct of the deceased with respect to the manner in which he and his helpers should exercise force or skill in felling the trees, or what precaution he should take for his or his helper's safety; that as to such details or particulars, the Eastman Corporation neither reserved nor undertook to exercise control, for it was interested only in the results of the cutting and the limitation of the operations to that timber which it had acquired the right and had the desire to cut. In principle that case is quite analogous to the case before us.
The case of Frost v. Blue Ridge Timber Corp.,
Finley v. Keisling,
In Odom v. Sanford Treadway,
In Siskin v. Johnson,
The reservations in the contract of the power to terminate it for any of the reasons therein stated do not control. Odom v. Sanford Treadway, supra; Louisville N. Railroad Co. v. Cheatham,
The provisions for carrying insurance will not alone, as is conceded by counsel, convert a contract into one of master and servant. We refer particularly to the provision for liability insurance. Certainly no point can properly be made in any view because of the requirement of insurance against the consequences of failure to collect and account for freight charges or against loss from theft or fraud.
We do not construe the requirement of liability insurance to protect the carrier as an admission that it might be liable in such case as this. It was evidently made out of abundant caution. It is true that there are many cases holding that evidence is admissible, as to such an issue, that the alleged employer carried indemnity insurance; but only as having a tendency to negative the independence of the contract, when there was other evidence tending to show the relation of master and servant. See Nissen Transfer Storage Co. v. Miller,
The contention that the contract was invalid because in restraint of trade is not sustainable. If the provisions against entering into competition with the carrier were invalid, it would not affect this question of right of control of the means and methods of performing the service for which the contract was entered into. Such provision for restraint from engaging in competitive business had no relation to the performance of such service. *391
It is of course true that the liability of a carrier for goods commences when the goods are delivered to him or his authorized agent for transportation, and are accepted. Pratt v. Grand Trunk Railroad,
The contract being plain and unambiguous, the service thereunder being not inherently dangerous, the trial judge was not in error in refusing to submit to the jury the issue of liability of the railroad company, holding that the transfer company was an independent contractor for the negligent act of whose servant, under well-settled law, the railroad company would not be liable. The assignments of *392 error are overruled and the judgment of the circuit court dismissing the action is affirmed. The costs of the appeal in error will be adjudged against the plaintiff in error.
Faw, P.J., and Crownover, J., concur.