Gardner v. National Dairy Products Corporation, 15441.

• Decision Date: 18 April 1964
• Docket Number: No. 15441.,15441.
• Citation: 330 F.2d 507
• Parties: John Parker GARDNER, Plaintiff-Appellant, v. NATIONAL DAIRY PRODUCTS CORPORATION, a Corporation, Defendant-Appellee.
• Court: U.S. Court of Appeals — Sixth Circuit

330 F.2d 507 (1964)

John Parker GARDNER, Plaintiff-Appellant, v. NATIONAL DAIRY PRODUCTS CORPORATION, a Corporation, Defendant-Appellee.

No. 15441.

United States Court of Appeals Sixth Circuit.

April 18, 1964.

Argued by Robert M. Odear, Lexington, Ky., Stoll, Keenon & Park, Lexington, Ky., Robert Ford, Jr., Owenton, Ky., on brief for appellant.

Argued by Richard Bush, Jr., Lexington, Ky., Harbison, Kessinger, Lisle & Bush, Lexington, Ky., on brief for appellee.

Before WEICK, Chief Judge, O'SULLIVAN, Circuit Judge, and McALLISTER, Senior Circuit Judge.

WEICK, Chief Judge.

This appeal is from an order of the District Court granting defendant's motion for summary judgment. The action was one to recover damages for personal injuries sustained by plaintiff arising out of a collision between his automobile and a truck alleged to have been operated by an employee of defendant named Charlie Moore. The grounds on which the District Judge granted summary judgment were that (1) Moore was an independent contractor and (2) if he was considered as an employee, he was not in the course of his employment at the time of the accident.

The evidence before the District Court consisted of affidavits, exhibits and depositions. Moore had a written contract with defendant whereby he agreed to haul cans of milk in his truck from farmer-producers on Route H to the Kraft Foods Division plant of defendant at Owensboro, Kentucky, and was paid a hauling rate of 50 cents per hundred pounds payable every two weeks. He was required to unload the cans numerically. He was further required by the contract to transport the milk in a safe and sanitary manner using all reasonable means to prevent spoilage and to comply with applicable sanitation and safety regulations of public authorities.

The contract was assignable. Moore was not bound personally to perform it, but could and did on occasions employ others. The contract could be terminated by either party on 30 days notice after the expiration of 90 days from the date of the agreement. It stated the intent of the parties was that Moore should be considered as an independent contractor and not an employee.

The company furnished facilities at its plant whereby Moore could wash his truck and also use the company washroom. Moore returned empty cans to the farmers and also delivered defendant's checks to them in payment for milk. He had the right to solicit additional farmers along the same route to sell their milk to defendant.

At the time the accident took place, Moore had made his deliveries for the day and was driving his truck home. He "had in his possession no checks, merchandise, or other items for delivery to any party or parties."

The fact that the contract was assignable and could be performed by others...