Great Atlantic & Pacific Tea Co. v. Donaldson, 6 Div. 587.

• Decision Date: 03 April 1934
• Docket Number: 6 Div. 587.
• Citation: 156 So. 859,26 Ala.App. 179
• Parties: GREAT ATLANTIC & PACIFIC TEA CO. v. DONALDSON.
• Court: Alabama Court of Appeals

156 So. 859

26 Ala.App. 179

GREAT ATLANTIC & PACIFIC TEA CO. v. DONALDSON.

6 Div. 587.

Court of Appeals of Alabama

April 3, 1934

Rehearing Denied June 5, 1934.

Appeal from Circuit Court, Tuscaloosa County; Henry B. Foster Judge.

Action for damages for personal injuries by Minerva Donaldson against the Great Atlantic & Pacific Tea Company. From a judgment for plaintiff, defendant appeals.

Reversed and remanded.

Certiorari denied by Supreme Court in Great Atlantic & Pacific Tea Co. v. Donaldson (6 Div. 612) 156 So. 865.

J. L. Drennen, of Birmingham, and H. A. & D. K Jones and Aubrey Dominick, all of Tuscaloosa, for appellant.

Foster Rice & Foster and J. G. Madison, all of Tuscaloosa, for appellee.

SAMFORD Judge.

The plaintiff was an invitee riding in an automobile which at the time was being driven along Tenth street in the city of Tuscaloosa by one Robert Smith. Near the intersection of Colonial drive and Tenth street there was a collision between the car in which plaintiff was riding and a truck belonging to, and being driven by, Eugene Hays (sometimes Hays is referred to as James and sometimes as Eugene. They are one and the same). As a result of the collision, this plaintiff was thrown from the car and seriously hurt. So much so, that the verdict rendered is ridiculously small as compensatory damages for the injuries which she sustained.

The complaint as amended is in one count, and reads: "Plaintiff claims of the defendant the sum of Two Thousand and no/100 ($2,000.00) Dollars, as damages, for that heretofore, on, to-wit, the 2nd day of April, 1932, an agent, servant or employee of the defendant, while acting within the line and scope of his employment by the defendant, negligently ran or permitted an automobile to run upon or against an automobile in which the plaintiff was riding on or along a public highway, to-wit, 10th Street, near Colonial Drive, in the City of Tuscaloosa, Alabama, and as a proximate consequence of said negligence of said agent, servant or employee of the defendant, the plaintiff was rendered unconscious for a long period of time, to-wit, six hours, was cut about the face and chin, suffered a severe cut and lacerations and bruises upon her right leg, and was otherwise cut and bruised about her legs and body, and was caused to spend one week in a hospital, and was confined to her home for one week after leaving said hospital, and was caused to expend a large sum of money, to-wit, Thirty-two and no/100 ($32.00) Dollars, for her care and maintenance in said hospital, and was caused to expend a large sum of money, to-wit, One Hundred and no/100 ($100.00) Dollars, for the service of a surgeon and physician, and was caused to expend a large sum of money, to-wit, Ten and no/100 ($10.00) Dollars, for medicines and bandages, and was caused to suffer great physical pain and inconvenience, and to lose a long period of time, to-wit, two months, from her work, all to the damage of the plaintiff in the sum of Two Thousand and no/100 ($2,000.00) Dollars, hence this suit."

Assuming that the opinion in Ruffin Coal & Transfer Company v. Rich, 214 Ala. 622, 108 So. 600, correctly states the law, we must hold that the complaint is not subject to the demurrer.

This brings us to a consideration of the major question involved in this case: Was Hays, the driver of the truck, an agent, servant, or employee of the defendant acting within the line and scope of his employment at the time charged in the complaint; or was he an independent contractor, engaged in carrying out the terms of his contract with this defendant without defendant having or exercising authority over him further than to hold him responsible for the execution of his contractual obligation.

The overwhelming weight of the evidence on this question is that defendant was engaged in the retail grocery and meat business in Tuscaloosa, selling its merchandise to customers in the city to be delivered to such customers at their homes; that defendant entered into a contract with Hays to make these deliveries at stated hours during the day, he being responsible for such merchandise from the time it was delivered to him until he made delivery to the customer; whether the delivery was made by truck or other vehicle was to be determined by Hays; that for this service so rendered, Hays was to receive, and did receive, as consideration, $25 per week, to be paid weekly; that the above was the entire contract between the parties; that Hays owed no duties to defendant except to make deliveries of goods sold by others; that in carrying out his part of the contract he purchased and owned, independent of defendant, a Ford truck; that he paid for the license, which was issued in his name; that he furnished all oil and gasoline for its operation; and that he maintained said truck at his own expense. There is some evidence that on several occasions while Hays was in defendant's store waiting for deliveries he had been called on by the manager to aid in waiting on customers, and one witness, who has a damage suit pending against this defendant, testifies that he had seen Hays in defendant's store wearing an apron and assisting in waiting on customers. As to what Hays did in the store in aid of the clerks there is denied by the manager and Hays. Whether this is so or not is of no moment, as there is no evidence tending to show that such service, if it was indeed rendered, was any part of or within the contemplation of the parties at the time of or pending the contract above outlined. In other words, assuming that Hays did, in his spare time, sometimes assist defendant's clerks, the evidence is without conflict that this service was purely voluntary and without compensation and could not and did not change the terms of the contract between the parties.

The court in his oral charge instructed the jury: "If he was employed to deliver groceries, and if he had nothing else to do except to deliver groceries, to deliver them in his own truck, and if you are reasonably satisfied by the evidence that was all he did do, that if it was his truck, if he kept up his truck, kept up the repairs, furnished oil and gas, and that the defendant's company had nothing to do with that, but he was to merely deliver groceries, and that he had nothing else to do except that but deliver groceries, and that was all he was employed to do, and that he did nothing else than that, he would be an independent contractor," etc. Of course, if there was conflict in the testimony as to what the contract was, the question would be properly left to the jury. In the instant case, however, there is no conflict in the testimony as to the terms of the contract entered into by and between defendant's district manager and Hays, which contract contemplated deliveries alone and no other service. That Hays voluntarily rendered other service not connected with or covered by the contract could not and does not change a contract for independent service into a contract of hire. Nor do we think that the occasional delivery of C. O. D. packages, where the money for same was returned by Hays to defendant, would change the status.

The distinguishing features of the relation of master and servant and that of an independent contractor have been the subject of so many decisions that we could not hope to add anything to the body of the law by discussing at length the distinctions involved. We think that Mr. Justice Foster, in General Exchange Insurance Corporation v. Findlay, 219 Ala. 193, 121 So. 710, 711, has tersely, accurately, and correctly stated the rule, to wit: "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."' This holding is sustained by many authorities there cited.

In addition to the above, we may note that in Republic Iron & Steel Co. v. McLaughlin, 200 Ala. 204, 75 So. 962 963, it was said: "Whether one performing a service is a servant or an independent contractor is held to be 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, * * * or has control over the means and agencies 'by which the result is produced."' To be a master he must have the supreme 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. Iron Co. v. Lea, 144 Ala. 169, 39 So. 1017. The opinion in the McLaughlin Case is supported by numerous cited authorities. It is the universal rule that if the employee is merely subject to the control or direction of the owner or his agent as to the result to be obtained, he is an independent contractor. McHarge v. M. M. Newcomer & Co., 117 Tenn. 595, 100 S.W. 700, 9 L. R. A. (N. S.) 298. In a case somewhat similar to the case at bar, and where the defendant in the case had entered into a contract with a party for the service of a truck and driver, at so much per day, the California court said: "The accepted doctrine is that, where the essential object of the employment is the performance of work, the relation of master and servant does not exist unless the employer retains the right to direct the mode and manner in which the job shall be done; or, in other words, not only what shall be done, but how it shall be done." Luckie v. Diamond Coal Co., 41 Cal.App. 468-480 (7), 183 P. 178, 183. In a case where an expressman was hired to move a safe, the expressman using his own methods in the removal, it was held that the expressman was an independent contractor. Hollenbach et al. v. Hardin, 205 Ill. Ap-p. 528. In New York it is held that a teamster employed to haul a load of lumber was an independent contractor. ...