Bartle v. Travelers Ins. Co., 12291.

• Decision Date: 14 December 1948
• Docket Number: No. 12291.,12291.
• Parties: BARTLE v. TRAVELERS INS. CO.
• Court: U.S. Court of Appeals — Fifth Circuit

171 F.2d 469 (1948)

BARTLE v. TRAVELERS INS. CO.

No. 12291.

United States Court of Appeals Fifth Circuit.

December 14, 1948.

J. Edwin Smith, of Houston, Tex., and A. L. Bevil, of Kountze, Tex., for appellant.

Marion Phillips and William C. Harvin, both of Houston, Tex., for appellee.

Before HOLMES, WALLER, and LEE, Circuit Judges.

WALLER, Circuit Judge.

This is an action for death benefits under the Workmen's Compensation Act of Texas, brought by the widow of F. B. Bartle, who, prior to his death, was a distributing agent of the Gulf Refining Company at Conroe, Texas. The Refining Company, asserting that Bartle was an independent contractor, denies that any employer-employee, or master-servant, relationship existed, and thus is raised the chief issue in the case.

Four years prior to Bartle's death he had entered into, and had been in the performance of, a written contract with Gulf Refining Company for the sale and distribution, on the commission basis, of Gulf petroleum products in the vicinity of Conroe. A copy of the contract is attached to a stipulation of the parties and on this stipulation and contract the Court below granted the Defendant's motion for a summary judgment. The widow, appealing, contends that: (1) it was a jury question as to whether her husband was an employee or an independent contractor; (2) it was a jury question as to whether Clause Eight of the contract (wherein Bartle agreed that neither he nor any of his employees should be deemed or construed to be employees of the Refining Company within the meaning of the Workmen's Compensation Act, Vernon's Ann.Civ.St. art. 8306 et seq., and that if any court should hold to the contrary notwithstanding the stipulation, notice was thereby given that he elected to reserve his rights at the common law and the law of Texas and not to be bound by the Workmen's Compensation Act) was within the terms of Sec. 3a of Article 8306, Texas Civil Statutes, or whether such clause was inconsistent with Sec. 14 of Article 8306, Texas Civil Statutes, providing that an agreement of an employee to waive rights to compensation under the Act should be invalid.

We think that these were questions of law and that under the stipulation the case was ripe for a summary judgment — one way or another. No facts are in dispute but only the interpretation of the contract in the light of the law of Texas. It is, therefore, necessary for us to examine the terms of the contract and the applicable provisions of State law in order to determine whether or not the husband of the Appellant was engaged in the performance of an independent contract at the time of his death, or whether the applicable relationship between him and the Refining Company was that of master and servant. In considering the nature of his employment we note that the preamble of the contract states the purpose for which the contract was entered into was that the Company "desires to arrange for the sale and distribution of petroleum products at Conroe * * * and F. B. Bartle, * * * had agreed to undertake the marketing of said Company products, in said territory, on commission." We believe that in any study of the contract, its provisions relating to the prime purpose, viz., the sale and distribution of petroleum products, should command larger consideration than those provisions in the contract for the making of reports and the like, that are merely incidental to the keeping of books, records, etc., and which are no part of the actual process of making sales or deliveries of petroleum products, but are a part of the functions that the Company, by its contract, and of necessity, was obligated to perform.

An analysis of the salient provisions of the contract reveals that the Company was to do the following: (a) furnish warehouse and storage facilities; (b) ship to Bartle such stocks of petroleum products as the location, in its judgment, might justify; (c) fix the prices at which the products would be sold; (d) pass upon and approve or disapprove — prior to sales — any sales other than for cash; (e) render a written statement to Bartle showing sales during the preceding month; (f) remit to Bartle the net commission earned on monies collected at the rates of commission agreed upon; (g) upon termination of the contract, settle with Bartle for any amounts then found due and owing. The acts or functions to be performed by the Company were separated in the contract from the function of Bartle, to wit, the marketing and delivery of petroleum products. Of necessity Bartle could have no part in manufacturing, shipping, ownership, or in fixing the prices of the commodities which belonged to the Company and which he was only to sell and deliver. Moreover, since Bartle was to sell the products of the Company only for cash, unless prior approval of sales on credit was first obtained, and since the commodities sold were not owned by him, and since the commission was to be paid by the Company out of monies collected and remitted, the Company of necessity was required to have the reports and keep the books in order to know what had become of its property and in order to pay the commissions due Bartle. These functions were in no sense repugnant to a relation of owner and independent contractor, nor restrictive, or retentive of control, as to the details and manner by which Bartle performed the functions of selling and delivering petroleum products.

The fact that there are mutual covenants to be performed by each of the parties in carrying out the contract is in no wise inconsistent with the existence of the relationship of employer and independent contractor any more than would the performance of such covenants and functions be repugnant to the existence of the relationship of master and servant.

The Company, without doubt, had the legal right to employ the deceased to sell and distribute its products as an independent contractor, and in such contract of employment to retain unto itself the performance of such functions and duties as were not thereby committed to, or imposed upon, its contractee, and we know of...