Dortch Baking Co. v. Schoel

• Decision Date: 22 February 1940
• Docket Number: 6 Div. 641.
• Citation: 194 So. 807,239 Ala. 266
• Parties: DORTCH BAKING CO. ET AL. v. SCHOEL.
• Court: Alabama Supreme Court

194 So. 807

239 Ala. 266

DORTCH BAKING CO. ET AL. v. SCHOEL.

6 Div. 641.

Supreme Court of Alabama

February 22, 1940

Rehearing Granted in Part March 21, 1940.

Appeal from Circuit Court, Jefferson County; C. B. Smith, Judge.

Action for personal injury and property damage by Walter Schoel against Thomas D. Mattison, Dortch Baking Company, a partnership and Fred H. Dortch, doing business as Dortch Baking Company. From a judgment for plaintiff, defendants Dortch Baking Company and Fred H. Dortch appeal. Transferred from Court of Appeals under Code 1923, § 7326.

Reversed rendered, and remanded only as to the Dortch Baking Company.

A Berkowitz and James L. Permutt, both of Birmingham, for appellants.

Harsh Harsh & Hare, of Birmingham, for appellee.

THOMAS, Justice.

The appeal challenges the failure of the trial court to give several requested affirmative charges for the respective defendants indicated.

The question of fact presented by the general issue was as to the agency vel non of the driver of the car, one of the defendants--Thomas D. Mattison. The contention of the defendant was, and is, that he was not a servant or agent of the Dortch Baking Company, but an independent contractor.

The judgment was against the Dortch Baking Company and Fred Dortch and Thomas D. Mattison. The judgment being reduced in response to defendant's motion, no insistence is made that the judgment was excessive. No appeal was taken by Mattison.

In Moore-Handley Hardware Co. v. Williams, Ala.Sup., 189 So. 757, 762, it was said: "* * * But, as observed in Birmingham Post Co. v. Sturgeon, supra [[[227 Ala. 162, 149 So. 74], it is not possible to lay down a hard and fast rule or state definite facts by which the status of men working and contracting together can be definitely defined in all cases as employee or independent contractor. Each case must depend upon its own peculiar facts."

See also on this question Slaughter v. Murphy, Ala.Sup., 194 So. 649; Reynolds v. Massey, 219 Ala. 265, 122 So. 29; Craft v. Koonce, 237 Ala. 552, 187 So. 730; Chandler v. Owens, 235 Ala. 356, 179 So. 256. There is analogy in the case of Western Union Telegraph Co. v. George, Ala. Sup., 194 So. 183.

After a close examination of all the testimony, we are convinced that the following evidence or inferences constitute the only matter that could conceivably relate to the alleged agency of Mattison with the Dortch Baking Company: (1) The disputed fact, but admitted for the sake of argument, that the name "Dortch" appeared on the truck which Mattison was driving at the time of the collision; (2) the inference to be drawn from the fact that a Mr. Carter, an employe of Dortch Baking Company, appeared on the scene of the accident shortly thereafter; (3) the fact that the defendant Mattison stored his trucks in a garage almost adjacent to the plant of Dortch Baking Company.

Assuming that at the time of the collision, the name "Dortch" appeared on Mattison's truck, assuming that Mr. Carter, an admitted employee of the Dortch Baking Company, did appear shortly after the collision (which the defendant does not deny), and assuming further that Mr. Mattison did keep at least two of his cars in a garage almost adjoining the premises of the Dortch Baking Company, did the inferences to be derived from such facts justify the trial court in submitting the question of agency to the jury and in refusing to grant the affirmative charge requested in writing on behalf of the defendants, Dortch Baking Company and Fred H. Dortch? We are of opinion and hold that this tendency of evidence warranted the submission of the question of Mattison's agency to the jury. Tobler v. Pioneer Mining and Mfg. Co., 166 Ala. 482, 52 So. 86; McMillan v. Aiken, 205 Ala. 35, 40, 88 So. 135.

Thus we are brought to the consideration of the motion for a new trial on the sufficiency of the evidence. The verdict was contrary to the great weight of the evidence as to the fact of agency as against that indicating that Mattison was an independent dealer and contractor. The rules that obtain as to a servant and an independent contractor are well stated in Greenwald v. Russell, 233 Ala. 502, 172 So. 895; General Exchange Ins. Corp. v. Findlay, 219 Ala. 193, 121 So. 710; Republic Iron & Steel Co. v. McLaughlin, 200 Ala. 204, 75 So. 962; Western Union Telegraph Co. v. George, Ala.Sup., 194 So. 183; Crescent Baking Co. v. Denton, 147 Miss. 639, 112 So. 21; Martin v. Republic Steel Co., 226 Ala. 209, 146 So. 276; Birmingham Post Co. v. Sturgeon,

227 Ala. 162, 149 So. 74.

General authorities touching the question of independent contractor are: Haden Co. v. Riggs, Tex.Civ.App., 84 S.W.2d 789; Riggs v. Haden & Co., 127 Tex. 314, 94 S.W.2d 152; Brownrigg v. Allvine Dairy Co., 137 Kan. 209, 19 P.2d 474; and Montana Supreme Court's ruling in Ashley v. Safeway Stores, 100 Mont. 312, 47 P.2d 53.

In short the distinction between the two relations may be said to be determined by whether or not the person for whom one is working has control over the means and agency by which the work is done; or has control over the means and agency by which the result is produced; or that the master has the supreme choice, control and direction of the servant and whose will the servant represents not merely in the result of the work, but in all of its details. Otherwise stated, for one to be a servant, the other party must retain the right to direct the manner in which the business shall be done, as well as the result to be accomplished--not only what shall be done, but how it shall be done. This principle was applied in Aldrich v. Tyler Grocery Co., 206 Ala. 138, 89 So. 289, 17 A.L.R. 617, where it was held that the relation of an independent contractor existed where the person was a city salesman on commission, using his own car, going where and when he pleased in making sales on commission. To like effect is the holding in Taylor v. General Refrigeration Sales Co., 231 Ala. 469, 165 So. 572.

The instant facts are to be tested by the foregoing authorities as to the relation vel non of an independent contractor. The defendant Mattison (a) did not have a designated route and could sell the products of the baking company to whom he saw fit; (b) the defendants or either of them had no control over Mattison and could not restrict or transfer him from one route to another; (c) neither of the defendants exercised control over the price at which Mattison sold said products after he purchased them from the Dortch Baking Company; and (d) Mattison purchased his own pies and cakes in kind and quantity and sold them to his customers on his own account and on such terms as he saw fit.

When the whole evidence is considered, there is no dispute in the foregoing assertions of fact.

It would follow from the foregoing that the great preponderance of the evidence was against the verdict of the jury, and on this point, a new trial should have been granted by the trial court. Whether the evidence be interpreted to show that Mattison was an independent contractor or an independent dealer, the verdict was contrary to the great weight of evidence and must be reversed on that account; but the judgment as to defendant Mattison is left in full force and effect.

Reversed, rendered and remanded as to appellants, Dortch Baking Company, a Partnership, and Fred H. Dortch.

ANDERSON, C.J., and BROWN and KNIGHT, JJ., concur.

On Rehearing.

THOMAS,...