Blevins v. Kearney
| Decision Date | 12 August 1982 |
| Docket Number | 1918 |
| Citation | 8 Phila. 44 |
| Parties | Blevins v. Kearney et al |
| Court | Pennsylvania Commonwealth Court |
(1) In determining whether or not an individual is an independent contractor or an employee the basic test is whether the principal has the right to control the result of the contract or whether the principal has the right to control the physical conduct of a third person in the performance of the contract
(2) A principal may exercise a limited amount of control in the physical conduct of a person without destroying that person's status as an independent contractor
(3) When a master/servant relationship is to be considered, it is most important to attest to whether the principal may terminate the relationship at any time with or without a cause. Retention of this power indicates a master/servant relationship
(4) The party asserting the existence of a master/servant relationship carries the burden of proof
(5) An independent contractor status is particularly noted when the contract does not give the alleged employer any power of termination; also, the contract does not recite any salary or wage to be paid to said individual.
E Paul Maschmeyer, Esquire, for Plaintiff
Robert T. Cohen, Esquire, for Defendant Kearney
William F. Sutton, Esquire, for Defendant Robert A. Hils
Jon C. Sirlin, Esquire, for Defendant Auto Driveaway
Robert A. Rosin, Esquire, for Defendants Jim Walter Corp., The Celotex Corp., We Try Harder, Inc.
The above consolidated actions arose out of a multi-vehicle accident in Clarion County, Pennsylvania on Interstate 80 on the night of September 19, 1974. Plaintiff Blevins was driving a tractor-truck owned by plaintiff Hampton and was pulling a tanker-trailer owned by plaintiff Midwest Emery Freight Systems when Blevins became involved in an accident precipitated by a collision between two cars driven by defendants Kearney and Hils. The registered owner of the Kearney vehicle was defendant Jim Walter Corporation, which had engaged defendant Auto Driveaway Company (Driveaway) to have the car driven from Philadelphia, Pennsylvania to Indianapolis, Indiana. Driveaway operates by matching up car owners who want their cars transported from one place to another, with persons who plan on driving those same or similar routes. Driveaway engaged Kearney to drive the car from Philadelphia to Indianapolis, and authorized Preston, her friend, to accompany her as a passenger. [1]
At trial, the jury returned a verdict in favor of all plaintiffs against Kearney only, and returned a verdict in favor of Driveaway. [2]
Plaintiffs filed post-trial motions for a new trial as to Driveaway [3], which motions the court denied after receiving briefs and hearing oral argument. Plaintiffs have appealed the denial of a new trial as to Driveaway.
This appeal raises the following issues:
1. Whether the jury's verdict in favor of Driveaway was inconsistent with the weight of the evidence;
2. Whether the trial court erred in striking Kearney's testimony that a Driveaway representative told her that she was " insured" ;
3. Whether the trial court erred in precluding evidence that trial counsel for Driveaway had represented Kearney at an earlier stage in the proceedings;
4. Whether the trial court erred in permitting expert testimony contesting the propriety of part of a repair bill incurred by Hampton on the tractor, and erred in precluding testimony that improper repairs caused Hampton to suffer the total loss of the tractor.
The sole issue here is whether the jury's determination that Kearney was an independent contractor, rather than Driveaway's employee, is inconsistent with the weight of the evidence. [4]
The basic test for distinguishing between an independent contractor and an employee is whether the principal has the right to control the result of the contract or whether the principal has the right to control the physical conduct of the hired person in the performance of the contract. Cox v. Caeti, 444 Pa. 143, 279 A.2d 756 (1971); Green v. Independent Oil Co., 414 Pa. 477, 201 A.2d 207 (1964). This test does not automatically classify someone as a servant whenever a right of physical control is present -- a principal may exercise a limited amount of control over the physical conduct of a person without destroying that person's status as an independent contractor. Phoenix Insurance Co. v. McDermott Brothers Co., 30 Lehigh L.J. 435 (C.P. 1964), aff'd 416 Pa. 569, 208 A.2d 245 (1965); Johnson v. Angretti, 364 Pa. 602, 608-609, 73 A.2d 666, 670 (1950); Brooks v. Buckley & Banks, 291 Pa. 1, 6-11, 139 A. 379, 381-383 (1927); Simonton v. Morton, 275 Pa. 562, 119 A. 732 (1923); Miller v. Merritt, 211 Pa. 127, 60 A. 508 (1905); Vaughn v. Warner, 157 F.2d 26, 33 (3rd Cir. 1946); Brooks v. Johnson, 22 Cal.App.2d 618, 72 P.2d 194 (1937).
The next most important consideration is whether the principal may terminate the relationship at any time with or without cause, retention of this power indicating a master-servant relationship. Green v. Independent Oil Co., supra; Feller v. New Amsterdam Casualty Co., 363 Pa. 483, 70 A.2d 299 (1950).
Other relevant factors are as follows: the terms of the agreement, which party supplies and pays for the materials, whether payment is by time or by job, whether the person engaged does similar work for other principals, whether the work is part of the regular business of the principal, whether the person engaged has a distinct occupation or business, and the nature of the work and the skill required for its performance. Cox v. Caeti, supra; Hader v. Coplay Cement Manufacturing Co., 410 Pa. 139, 150, 189 A.2d 271, 277 (1963); Johnson v. Angretti, supra.
The party asserting the existence of a master-servant relationship carries the burden of proof. Maslo Manufacturing Corp. v. Proctor Electric Co., 376 Pa. 553, 103 A.2d 743 (1954), cert. den. 348 U.S. 822, 75 S.Ct. 36, 99 L.Ed. 648; Johnson v. Angretti, supra.
The evidence on the question of Kearney's relationship with Driveaway consists of the written agreement (attached hereto) signed by Kearney and A. J. Waldron, Driveaway's representative, and the testimony of Kearney (N.T. 292-336, 485), Waldron (N.T. 429-431) and Preston (N.T. 433-434, 457-458, 465-466). [5]
The two page agreement, entitled " INDEPENDENT CONTRACTOR AGREEMENT & BILL OF LADING", authorizes Kearney to possess and operate a certain Plymouth Satellite (owned by " Jim Walter Co." ) for the purpose of driving it from Philadelphia to Indianapolis. This agreement lists 24 numbered conditions and also incorporates various safety regulations of the Department of Transportation. We see no need to review this contract point by point, since the agreement is very readable, being both clear and short.
Many of the contract's provisions do not shed light on our problem because they do not relate to the agency issue.
Two notable absences in the contract strongly indicate independent contractor status -- most importantly, the contract does not give Driveaway any power of termination; also, the contract recites no salary or wage to be paid to Kearney. The notable inclusion in the contract of points 2, 7, 11, 13, 14, 17, 18 and 19 support the conclusion that Kearney is an independent contractor by stating that she must bear all expenses, except for repairs under $25.00 and additional repair expenditures if authorized by the owner (even here, Kearney may look only to the owner for reimbursement). Point 16 states, " He (sic) expressly agrees and understands that he (sic) is in no way an employee of the owner of the vehicle or Driveaway, but is only an independent contractor under the provisions of this Agreement." [6]
The portions of Kearney's testimony that did not merely repeat the terms of the written contract strongly indicate independent contractor status. Kearney contacted Driveaway first, because she wanted to drive to Detroit, Michigan, but did not own a car (N.T. 294-295, 306-307, 317, 328, 485). She had made similar arrangements on several earlier occasions -- with at least two other companies in addition to Driveaway (N.T. 308, 317-319, 457-458). She did not have to contact Driveaway or stop at any check points on the way (N.T. 311). Driveaway did not pay Kearney anything to drive the car, and the $50.00 deposit and all expenses were to be borne either by Kearney or the owner (N.T. 302, 305-307, 311, 319-321). Kearney read the contract before signing it, or at least had an opportunity to do so, and did not ask any questions (N.T. 307-308). She testified that she did not know what " independent contractor" meant (N.T. 298, 314, 329), but there was no evidence that she did not understand what the contract meant by stating that she was not an " employee" .
The only testimony not repetitious of the written contract which may indicate a master-servant relationship is Kearney's Testimony that the Driveaway representative told her that Driveaway would be financially responsible for any accidents in which she became involved (N.T. 314-315, 324-328).
The points of the written agreement which, in whole or in part, indicate a master-servant relationship are 3, 4, 7, 8, 9, 10, 14 and 17. Points 3 and 9 prescribe what routes may be taken; [7] 4, 7, 10 and 17 prohibit Kearney from having any animals in the car, or any persons other than herself and Preston; 8, 10, and 14 require Kearney to wash the car before delivery and to take certain maintenance and safety precautions.
It is obvious that Driveaway did retain a limited right of control over Kearney, but it does not follow that she thereby became Driveaway's servant. As stated earlier, a principal, in order to secure the desired...
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