Crescent Baking Co. v. Denton

• Citation: 147 Miss. 639,112 So. 21
• Decision Date: 14 March 1927
• Docket Number: 26236
• Court: Mississippi Supreme Court
• Parties: CRESCENT BAKING CO. v. DENTON et al. [*]

112 So. 21

147 Miss. 639

CRESCENT BAKING CO. v. DENTON et al. ^[*]

No. 26236

Supreme Court of Mississippi

March 14, 1927

Division B

Suggestion of Error Overruled April 11, 1927.

APPEAL from circuit court of Second District, Coahoma county HON. W A. ALCORN, JR., Judge.

Action by Mrs. Anna Denton and others against the Crescent Baking Company. Judgment for plaintiffs, and defendant appeals. Reversed and judgment rendered.

Judgment reversed.

Cutrer & Smith, for appellant.

The plaintiff utterly and wholly failed to establish the relation of master and servant between the Crescent Baking Company and the driver of the truck, G. Pinkston. We submit that the uncontradicted testimony establishes the fact that G. Pinkston was an independent contractor, under the law, and not a servant of the Crescent Baking Company. Woods v. Clements, 114 Miss. 301, 75 So. 119.

The principal is not liable for the negligent acts of an independent contractor. The rule is equally as clear and as equally defined that the unauthorized acts of a duly authorized agent are not the acts of the principal. Woods v. Clements, 114 Miss. 301, 75 So. 119; Prince v. Wilds Isaacs Co. (Miss.), 97 So. 558; Cook v. Millawan & Co. (Miss.), 101 So. 662.

There are certain indispensable elements connected with the status of an independent contractor. See 26 Cyc. 970; 31 C. J. 473. Our own court in defining an independent contractor adopts the definition as given in Words and Phrases. See, also, Callahan v. Rayburn, 110 Miss. 117.

Not only did the plaintiffs in this cause fail to prove that Pinkston was in and about his master's business, and acting within the scope of his authority, but wholly failed to prove that the said Pinkston was a servant or agent in the employ of the Crescent Baking Company. On the other hand, we submit that the proof uncontradictedly showed that the said Pinkston was an independent contractor.

Various courts have laid down certain tests in the determination of this relation, which have been uniformly followed by our own court. Till v. Fairbanks, 111 Miss. 123, 71 So. 298; Norton v. Day Coal Co., 180 N.W. 907; Svoboda v. Western Fuel Co. et al., 193 N.W. 406; Freeman v. So. Life & Health Ins. Co. et al., 98 So. 460; Cole v. La. Gas Co., 46 So. 801; Premier Motor Mfg. Co. v. Tilford, 111 N.E. 645.

The right of control as to details must exist before the relationship of master and servant exists. Pinkston sold to his own customers and controlled the disposition of the bread. He sold to whom he pleased and when he pleased. If the Tilford case correctly announces the law, then the defendant could not be held for the acts of Pinkston even considering all other facts necessary to attach liability existed. See Porter v. Tenn. Coal, Iron & R. R. Co., 50 So. 255; Litts et al. v. Risley Lbr. Co. et al., 120 N.E. 730; Pyyny v. Loose-Wiles Biscuit Co., 149 N.E. 541; Peer v. Babcock et al., 129 N.E. 224; A. L. Aldrich, Adm'r, etc., v. Tyler Grocery Co. (Ala.), 89 So. 289, 17 A. L. R. 617; James v. Tobin-Sutton Co. (Wis.), 195 N.W. 848; Dohner v. Winfield Wholesale Gro. Co. (Kan.), 226 P. at 767; Premier Motor Mfg. Co. v. Tilford (Ind.), 111 N.E. 645.

The burden of proof is on the plaintiff to establish by the preponderance of the testimony that at the time of the accident complained of the driver was the servant of the owner of the car and was engaged in and about his master's business and acting within the scope of his employment. These facts by the undisputed evidence in the case at bar do not exist. Callahan v. Rayburn, 110 Miss. 107, 69 So. 699; Burke v. Show et al., 59 Miss. 443; Till v. Fairbanks Co., 111 Miss. 123; Oberton v. Boston R. R. Co., 186 Mass. 481, 71 N.E. 980, 67 L. R. A. 422; McKinney v. Sherwin-Williams Co. of Texas (Tex. Civ. App.), 271 S.W. 133; Boyd v. Mahone (Va.), 128 S.E. 259; Larson v. Am. Bread Co., 40 Wash. 224, 82 P. 294, 111 A. S. R. 904; L. & N. R. R. Co. & Tex. R. R. Co. v Douglas, 69 Miss. 723, 30 A. S. R. 582; Ramp v. Osborne (Ore.), 239 P. 112; Gall v. Detroit Journal Co., 191 Mich. 405, 158 N.W. 36, 19 A. L. R. 1164; Stricher v. Indus. Com. of Utah, 59 Utah 603, 188 P. 849, 19 A. L. R. 1159; Flickenger et al. v. Indus. Accident Com. et al., 181 Cal. 425, 184 P. 851, 19 A. L. R. 1150; Carleton v. Foundry & Mach. Product Co. et al., 199 Mich. 148, 165 N.W. 816.

Maynard, FitzGerald & Venable and Bratton & Mitchell, for appellees.

The appellant bases its contention that Pinkston was not the servant of the Crescent Baking Company on the idea, as we understand it, that the Crescent Baking Company did not own the truck operated by Pinkston, but that it belonged to Medearis, the manager of the Crescent Baking Company, and that Pinkston simply bought bread from the bakery, which he resold to his customers along his route and was not a servant of the bakery, but a bread merchant, it being contended that the bakery exercised no sort of control over Pinkston and his work. This was a question of fact to be decided by the jury; and a jury and the judge decided that Pinkston was the servant of appellant. The finding of the jury and the judge of the lower court should not be set aside unless it should so clearly appear that their action was unfounded as to leave no doubt about it. So. Express Co. v. Brown, 67 Miss. 260.

Various reasons have been assigned why the master should be held liable at all for the torts of his servant. One of them is that it is rested on the doctrine of agencies under the maxim, Qui facit per alium facit per se. Another reason which is often assigned in the decisions is that the master should be liable because he has the right and power to select his servant. The usual rule, and the one which is approximately adequate, is that the master has the control of the servant.

All of the reasons given are doubtless parts of a larger reason why it is thought fair to hold the master liable for the acts of his servant, and that is a reason of public policy growing out of an instinctive idea that it is fair that "he who expects to derive advantage from an act which is done by another for him must answer for any injury which a third person may sustain from it." See Barker v. Chicago, etc., Ry. Co., 243 Ill. 482; 26 L. R. A. (N. S.) 1058; 134 A. S. R. 382. This court has apparently adopted this viewpoint. See N. O., etc., R. R. Co. v. Bailey, 40 Miss. 395. The concrete rule generally applied by the courts, among them our own, is that of control.

The power to discharge as a test of master and servant relationship was dealt with in the case of Southern Express Co. v. Brown, 67 Miss. 260. The method of payment is not always decisive. N. O. Ry. Co. v. Reese, 61 Miss. 581. The right to discharge, and hence, to control, was deemed decisive in N. O. Ry. Co. v. Norwood, 62 Miss. 565.

Of the various tests which have been invoked to determine whether or not the alleged master is such because he has the power to control, the power of hiring and discharging is deemed the strongest and nearly always conclusive. So. Express Co. v. Brown, supra; note 37 L. R. A. 38.

The power of control then being the fundamental test and it being deemed fair according to the reason of the rule of respondeat superior, supra, that the one who sets another about his business for his advantage should be liable for the defaults of this one if he has the power to control his acts, the question is whether or not the Crescent Baking Company had the power to control Pinkston within the purview of the principle. The evidence shows the existence of such power. The jury so found. The case should be affirmed.

Argued orally by Edward W. Smith, for appellant, and Carl Bratton, for appellees.

OPINION

HOLDEN, P. J.

The Crescent Baking Company, a corporation, appeals from a judgment for seven thousand five hundred dollars recovered against it by the appellees, Mrs. Anna Denton et al. as damages for the death of her minor son, T. P. Denton, who was struck and killed by an auto truck driven by one Pinkston, who, it is alleged, was acting as the servant and agent of the appellant, Crescent Baking Company, at the time the injury occurred.

The appeal presents several questions for decision, but we shall decide only one of them, which will end the case and make it unnecessary to notice the others. The decisive question is whether or not Pinkston, the driver of the auto truck, was the servant of the baking company, and acting within the scope of his employment, when he struck and killed the son of the appellee, on a street in the village of Clayton, out from Clarksdale, Mississippi. The determination of this point necessitates the statement of the facts and circumstances in the record which tend to prove or disprove that the relationship of master and servant existed between the baking company and Pinkston, the driver of the truck, when the injury occurred. So we shall briefly state the pertinent facts on the question involved as disclosed by the record.

The Crescent Baking Company is a domestic corporation, with its principal place of business at Clarksdale, Miss., where it operates a bakery for the manufacture of all kinds of bakery products. The bakery sold bread which was delivered to customers living outside of the city of Clarksdale, in neighboring towns and points along the railroad and the public highways, and through the village of Clayton, the place where the deceased boy was struck by the truck driven by Pinkston.

The baking company had several routes upon which its bread was sold in that territory. These designated routes were let out to different persons, who would buy bread from the baking company and deliver it to their customers along the routes during the day, and return to Clarksdale at night.

Pinkston the auto driver who...