95 S.W.2d 571 | Ky. Ct. App. | 1936
Reversing in part and affirming in part.
Robert H. Hinton has recovered judgment against the Grocers Biscuit Company, a corporation, and Harry L. Cheaney for $800 as damages for personal injuries and injuries to his automobile resulting from a collision between his automobile and one owned and driven by Cheaney. The Grocers Biscuit Company and Cheaney are appealing.
The petition alleged that at the time of the accident, Cheaney was an employee of the Grocers Biscuit Company and in the discharge of his duties as its employee as traveling salesman, acting as its agent and servant and doing what he had been directed to do by it. In an amended petition the duties of any person operating an automobile on a highway of the state of Tennessee under the laws thereof were set out, and were pleaded and relied upon as supporting his right of recovery.
The answer of the Grocers Biscuit Company traversed the allegations of the petition, and in a second paragraph pleaded contributory negligence, and in a third paragraph affirmatively alleged that at the time of the accident Cheaney was operating his own automobile and that the Grocers Biscuit Company had no control or power to direct the manner in which the automobile should be operated by him; that he operated it for himself exclusively without being subject to the orders or directions of the Grocers Biscuit Company. At the close of the evidence the Grocers Biscuit Company made a motion for a peremptory instruction in its favor which was overruled.
The accident occurred in Tennessee in or near the town of Waverly. Mr. and Mrs. Hinton and Mrs. Eubank, a friend of the family, and Robert Thomas, a *741 grandson of Mr. Hinton and who was driving the automobile, were leaving Waverly and Cheaney was coming in his automobile from the opposite direction. Mr. Hinton and the other occupants of his automobile testified that they were driving over to the extreme right side of the road as they were traveling, and that when Cheaney's car first appeared around the curve some distance away, he was driving on the opposite side, but that as he neared them his car began to swerve over in their direction and struck their automobile, inflicting the injuries and damages complained of. There was no evidence whatever to indicate any carelessness or negligence upon the part of the driver of Mr. Hinton's automobile. Robert Thomas testified that after the accident Mr. Cheaney told him he was trying to adjust his sun visor at the time the accident occurred. Mr. Cheaney did not attempt to excuse himself, except to say that he was driving facing the afternoon sun and had kept his sun shade adjusted so as to protect his eyes, until he rounded the curve, when the sun glared into his face and so absolutely blinded him that before he could stop the cars collided, but he was unable to tell how it happened.
Counsel for appellant make no contention that the verdict is excessive or that it was not in entire accord with the weight of the evidence so far as the alleged negligence is concerned. They only ask a reversal of the judgment as to the Grocers Biscuit Company on the ground that in the operation of his automobile at the time and place of the accident, Cheaney was not under the direction or control of the company but was an independent contractor, and therefore it was not liable for any of the alleged negligence upon his part.
Cheaney was the only witness introduced by appellant, and his evidence concerning the nature, character, and terms of his employment is uncontradicted. According to his evidence he had been selling the products of the Grocers Biscuit Company for two or three years under an oral agreement whereby he received 13 1/2 per cent. commission on all orders which were accepted by the company. He received an advancement of $50 per week for expenses, which was deducted from his commissions. He owned his own automobile, paid *742 his own expenses, and while he could sell anywhere in the state of Tennessee, he confined his activities to counties accessible to Bowling Green where he lived. He testified that when he made the agreement with a representative of the Grocers Biscuit Company nothing was said about the time he would devote to the business, but that he understood that he was to and did devote all his time to it; that he was not subject to the direction or control of the company as to when or where or how he went or as to prospects or customers upon whom he would call, except that the company would at times request him to call upon delinquent customers to collect bills; however, he was not on such a mission at the time of the accident, but was going to Waverly in his usual course of business to call upon his regular customers. He further testified that there was no requirement as to where he should live nor as to his liability as to sample cases or samples furnished him; that he was to be controlled by prices furnished by the company and to take orders that were acceptable; that the company had the right to terminate his employment at any time.
Counsel for appellant cite and rely on the case of Leachman v. Belknap Hardware Mfg. Co.,
"Affirmative allegations of the answer as well as the contract establish beyond cavil, doubt, or question that Leming was an independent contractor within this statement of principle."
The principle referred to was the following quoted from American Savings Life Ins. Co. et al. v. Riplinger,
"A servant is a person subject to the command of his master as to the manner in which he shall do his work, and the master is the one who not only prescribes the work but directs, or may direct, the manner of doing the work. Bowen v. Gradison Const. Co.,
236 Ky. 270 ,32 S.W.2d 1014 ; Jarvis v. Wallace,139 Va. 171 ,123 S.E. 374 . A master within the doctrine of respondent superior is the one who cannot only order the work, but also how it shall be done. Carter v. King County,120 Wash. 536 ,208 P. 5 . The doctrine applies only where the relationship of master and servant *744 exists at the time and in respect to the thing causing the injury, and from which it arose (Tilburne v. Burton,86 Cal. App. 627 ,261 P. 334 ; Martin v. Greensboro-Fayetteville Bus Line,197 N.C. 720 ,150 S.E. 501 ; Kennedy v. Wolf,221 Ky. 111 ,298 S.W. 188 ), and then only when the one sought to be charged has some right in some way to control the conduct of the party having caused the injury (Trachtenberg v. Castillo [Tex. Civ. App.]257 S.W. 657 ). * * *"A salesman or other person who is his own master in respect to the time he shall devote to the business of the employer, such as soliciting or making sales, using his own automobile or other vehicle, or the vehicle of another, in the pursuit of the employer's business, but the employer is without right to direct the manner in which he shall control its use. The employer is not liable in such case for damages inflicted by the employee's negligent driving of the car or other vehicle."
The Leachman and Riplinger Cases, supra, are in harmony with the weight and trend of authority. See Aldrich's Adm'r v. Tyler Grocery Co.,
Domestic cases cited and relied on by appellee are Postal Telegraph-Cable Co. v. Murrell,
A comparison of the facts and circumstances developed in this case with those of the Leachman Case will at once reveal a much stronger case for the Grocers Biscuit Company than was made for the Belknap Hardware Manufacturing Company. Therefore, in the light of the Leachman Case and the other authorities cited which follow the same trend, it is obvious that the court erred in overruling the motion of appellant Grocers Biscuit Company for a directed verdict in its. favor.
It is further contended by counsel for appellee that his right of recovery is controlled by the law of Tennessee and not by the laws of Kentucky and other jurisdictions. To sustain their allegations respecting the law of Tennessee, appellee took the deposition of an eminent attorney engaged in practice at Nashville in that state. Without going into detail, this witness stated that basically there is little difference between the laws of Tennessee and those of other states respecting negligence, and this evidence indicates that to impose liability under the laws of Tennessee in cases of this character it would be essential to show the relationship of master and servant or principal and agent between the company and the driver of the automobile, and that the driver was at the time acting in the interest of the company and within the scope of his employment. The Tennessee cases cited are not out of harmony with cases from this court. On the question of independent contractor he cited a number of cases which he stated defined "independent contractor" as,
"One who contracts to do a piece of work according to his own methods and without being subject to the control of his employer and except as to the result of his work,"
and continuing said:
"All these cases refer to construction or building work wherein a certain job is to be done upon certain *746 plans or specifications embodied in the contract, without any control by the owner as to the method employed in the doing of said work."
He further stated that he had not been able to find any case in Tennessee where a status of independent contractor was set up by the court except contracts involving physical construction or erection work and had found none where a salesman, whether on commission or salary, was classified as an independent contractor. We find, however, in the case of Income Life Insurance Company v. Mitchell,
For the reasons indicated, the judgment as to Cheaney is affirmed, and the judgment as to the Grocers Biscuit Company is reversed and cause remanded for proceedings consistent with this opinion.