Greenwald v. Russell

• Decision Date: 04 March 1937
• Docket Number: 4 Div. 931
• Citation: 172 So. 895,233 Ala. 502
• Parties: GREENWALD v. RUSSELL.
• Court: Alabama Supreme Court

172 So. 895

233 Ala. 502

GREENWALD v. RUSSELL.

4 Div. 931

Supreme Court of Alabama

March 4, 1937

Appeal from Circuit Court, Crenshaw County; A.E. Gamble, Judge.

Action by W.I. Russell against Max Greenwald, doing business as Greenwald Shoe Market, and Phillip Kadis. From a judgment for plaintiff, defendant Greenwald alone appeals.

Transferred from Court of Appeals under Code 1923, § 7326.

Reversed and remanded.

London & Yancey and Fred G. Koenig, Sr., all of Birmingham, for appellant.

C.J Kettler, of Luverne, and Powell & Hamilton, of Greenville for appellee.

KNIGHT Justice.

Suit by plaintiff, appellee, to recover damages for personal injuries and property damage.

In count 1 of the complaint plaintiff sues to recover damages for personal injuries, while in count 2 he seeks to recover damages for the killing of one of his mules, and the injury to another. The plaintiff alleges that the injuries to his person and his property were proximately caused by the negligent operation of an automobile, driven by the defendant Phillip Kadis, an agent or servant of the defendant Greenwald, while acting within the line and scope of his employment.

The trial resulted in verdict and judgment for the plaintiff against both defendants, but the appeal is taken only by the defendant Greenwald, and upon the record he has assigned a number of errors, some relating to the admission of illegal and incompetent evidence, and some predicated upon the refusal of the court to give certain charges requested by him.

It was the contention of the appellant that the defendant Kadis was not his agent or servant in the operation of the offending car at the time the accident occurred, nor, in fact, at any time prior thereto; that, on the contrary, the said Kadis was operating his own car, fueled by his own gasoline, paying his own expenses, and going when and where he pleased within the territory assigned him in search of customers; that he was engaged only as a salesman working on a commission basis that appellant had not intrusted any automobile to the said Kadis, nor had he told him how he must travel, or when or where he should go within the assigned territory. In short, it was appellant's contention that the relation existing between himself and Kadis was that of an independent contractor, not that of master and servant.

In the case of General Exchange Ins. Corp. v. Findlay, 219 Ala. 193, 121 So. 710, 711, it was observed: "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; Tennessee, C.I. & R. Co. v. Davis, 194 Ala. 149, 69 So. 544; Louisville & N.R.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.' Alabama Power Co. v. Bodine, supra."

This distinction between the relation of an independent contractor and that of a servant was recognized in our recent cases of Birmingham Post Co. v. Sturgeon, 227 Ala. 162, 149 So. 74, and Martin v. Republic Steel Co., 226 Ala. 209, 146 So. 276.

This principle was applied in the case of 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, and not servant, existed where the person was city salesman on commission, using his own car, going where and when he pleased in making sales on commission. And to the same effect was our holding in the more recent case of Taylor v. General Refrigeration Sales Co., 231 Ala., 469, 165 So. 572.

Giving due effect to all the legal and competent testimony introduced on the trial of this...