General Exchange Ins. Corporation v. Findlay

• Decision Date: 11 April 1929
• Docket Number: 6 Div. 123.
• Citation: 121 So. 710,219 Ala. 193
• Parties: GENERAL EXCHANGE INS. CORPORATION v. FINDLAY.
• Court: Alabama Supreme Court

121 So. 710

219 Ala. 193

GENERAL EXCHANGE INS. CORPORATION v. FINDLAY.

6 Div. 123.

Supreme Court of Alabama

April 11, 1929

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

Action for wrongful death by Verlie H. Findlay, as administratrix of the estate of Wess Findlay, deceased, against the General Exchange Insurance Corporation. From a judgment for plaintiff, defendant appeals. Reversed and remanded.

J. P Mudd and W. R. C. Cocke, both of Birmingham, for appellant.

Altman & Koenig and B. F. Smith, all of Birmingham, for appellee.

FOSTER J.

Plaintiff's intestate is alleged to have died as the result of an automobile accident. The automobile was being driven by one Lawrence and the accident is alleged to have been the result of his negligence. Lawrence was engaged to drive the car by one Beckham under the following circumstances: Appellant had issued a policy of insurance against the theft of an automobile. It is claimed that the car was stolen, and located at Jasper, some distance away. It is claimed that the owner of the car was Mrs. Beckham, and her husband procured one Findlay, the automobile dealer, to telephone an alleged general agent of appellant advising him of the theft and location of the car, and asking for instructions; that plaintiff's said agent told Findlay "to tell Beckham to go and get the car; that he would pay the expenses to get it and if necessary pay a $25.00 reward to the sheriff; to get the car and bring it back to Birmingham [where plaintiff's alleged agent had his office], and let him make an adjustment on it and make settlement with him for the damage; *** he said to get the car and he would pay all expenses, to get the car and bring it back to Birmingham, so that he could make an adjustment on it and he would pay a $25.00 reward. He told me to bring it to his office, and get all the necessary help that was needed or expenses." The foregoing is the aspect of the evidence most favorable to appellee.

Appellee claims that Beckham, though an experienced automobile driver procured Lawrence, a taxi driver, to drive for him, because he did not know the road to Jasper, and had never driven in the traffic of Birmingham, through which it was necessary to go; that he procured decedent to go because the latter was familiar with the people and conditions at Jasper and could help him get the car where it was "tied up"; that he carried his son to drive his car back, though he himself could drive, and another youth as a companion to young Beckham. On this trip to and near Jasper, going for the stolen car, the accident occurred while Lawrence was driving Beckham's car, causing the death of plaintiff's intestate. It was claimed that under such circumstances Lawrence was appellant's agent, and for the death of plaintiff's intestate, due to the negligence of Lawrence plaintiff is liable on the doctrine of respondeat superior.

Appellant claims it was due the affirmative charge for numerous reasons: One is that under such circumstances the relation did not extend beyond that of an independent contractor, if any relation at all existed between appellant and Beckham, and that it was not that of master and servant. Of course, if Beckham was an independent contractor, his employment of Lawrence did not make appellant the master as to Lawrence, and therefore there did not exist the facts calling for the principle of respondeat superior.

This court has had occasion frequently to point out the distinguishing characteristics between the relation of an independent contractor and that of a servant. A clear and concise statement of such distinction is made in our case of Republic I. & S. Co. v. McLaughlin, 200 Ala. 204, 75 So. 962, to the following effect: The relation is "determined by whether or not the person for whom he is working 'has control over the means and agencies' by which the work is done (Warrior-Pratt Coal Co. v. Shereda, 183 Ala. 118, 62 So. 721; T. C. I. & R. Co. v. Davis, 194 Ala. 149, 69 So. 544; L. & N. R. Co. v. Williams, 199 Ala. 453, 74 So. 382), [and] or has control over the means and agencies 'by which the result is produced' (Harris v. McNamara, 97 Ala. 181, 12 So. 103). In line with this test is the rule that he is deemed the master who has the supreme choice, control, and direction of the servant, and whose will the servant represents, 'not merely in the ultimate result of his work, but in all its details' (Lookout Mt. I. Co. v. Lea, 144 Ala. 169, 39 So. 1017)." For the person 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, or, in other words, not only what shall be done, but how it shall be done" (39 C.J. 35), as he has "a reserved control or direction of the work" (Alabama Power Co. v. Bodine, 213 Ala. 627, 105 So. 869). "Giving orders is the role of the master." Ala. Power Co. v. Bodine, supra.

An application of this test has been made in numerous cases with the result of holding that the relation of independent contractor, and not servant, existed, where the person was city salesman on commissions, using his own car (Aldrich v. Tyler Groc. Co., 206 Ala. 138, 89 So. 289); where the person furnished clay by the wagon loan to a mudmill of the contractee, getting the clay from pits on lands of the contractee, and was paid by the load (U.S. Cast Iron Pipe & Foundry Co. v. Fuller, 212 Ala. 177, 102 So. 25); where the person mined coal or iron ore for the mine operator, and was paid by the ton mined (U.S. Cast Iron Pipe & Foundry Co. v. Caldwell, 208 Ala. 260, 94 So. 540; Hubbard v. Coffin, 191 Ala. 494, 67 So. 697); where the person was holding the owner's car, for the purpose of repairing it in his own way by the job, and free from direction or control of the owner as to details or manner (Freeman v. Southern Life & Health Ins. Co., 210 Ala. 459, 98 So. 461). This rule was applied in Mississippi to a truck driver selling bread to customers along a route he had selected, wherein the baker did not control him in the...