Grocers Biscuit Co. v. Hinton
| Citation | 264 Ky. 739 |
| Parties | Grocers Biscuit Co. et al. v. Hinton. |
| Decision Date | 09 June 1936 |
| Court | United States State Supreme Court (Kentucky) |
Appeal from Warren Circuit Court.
RODES & HARLIN and WOODWARD, DAWSON & HOBSON for appellant Grocers Biscuit Co.
STOUT & HERDMAN for appellant Harry L. Cheaney.
RODES K. MYERS and W.R. GARDNER for appellee.
Reversing in part and affirming in part.
Robert H. Hinton has recovered judgment against the Grocers Biscuit Company, a corporation, and Harry L. Cheaney for $800 as damages for personal injuries and injuries to his automobile resulting from a collision between his automobile and one owned and driven by Cheaney. The Grocers Biscuit Company and Cheaney are appealing.
The petition alleged that at the time of the accident, Cheaney was an employee of the Grocers Biscuit Company and in the discharge of his duties as its employee as traveling salesman, acting as its agent and servant and doing what he had been directed to do by it. In an amended petition the duties of any person operating an automobile on a highway of the state of Tennessee under the laws thereof were set out, and were pleaded and relied upon as supporting his right of recovery.
The answer of the Grocers Biscuit Company traversed the allegations of the petition, and in a second paragraph pleaded contributory negligence, and in a third paragraph affirmatively alleged that at the time of the accident Cheaney was operating his own automobile and that the Grocers Biscuit Company had no control or power to direct the manner in which the automobile should be operated by him; that he operated it for himself exclusively without being subject to the orders or directions of the Grocers Biscuit Company. At the close of the evidence the Grocers Biscuit Company made a motion for a peremptory instruction in its favor which was overruled.
The accident occurred in Tennessee in or near the town of Waverly. Mr. and Mrs. Hinton and Mrs. Eubank, a friend of the family, and Robert Thomas, a grandson of Mr. Hinton and who was driving the automobile, were leaving Waverly and Cheaney was coming in his automobile from the opposite direction. Mr. Hinton and the other occupants of his automobile testified that they were driving over to the extreme right side of the road as they were traveling, and that when Cheaney's car first appeared around the curve some distance away, he was driving on the opposite side, but that as he neared them his car began to swerve over in their direction and struck their automobile, inflicting the injuries and damages complained of. There was no evidence whatever to indicate any carelessness or negligence upon the part of the driver of Mr. Hinton's automobile. Robert Thomas testified that after the accident Mr. Cheaney told him he was trying to adjust his sun visor at the time the accident occurred. Mr. Cheaney did not attempt to excuse himself, except to say that he was driving facing the afternoon sun and had kept his sun shade adjusted so as to protect his eyes, until he rounded the curve, when the sun glared into his face and so absolutely blinded him that before he could stop the cars collided, but he was unable to tell how it happened.
Counsel for appellant make no contention that the verdict is excessive or that it was not in entire accord with the weight of the evidence so far as the alleged negligence is concerned. They only ask a reversal of the judgment as to the Grocers Biscuit Company on the ground that in the operation of his automobile at the time and place of the accident, Cheaney was not under the direction or control of the company but was an independent contractor, and therefore it was not liable for any of the alleged negligence upon his part.
Cheaney was the only witness introduced by appellant, and his evidence concerning the nature, character, and terms of his employment is uncontradicted. According to his evidence he had been selling the products of the Grocers Biscuit Company for two or three years under an oral agreement whereby he received 13 1/2 per cent. commission on all orders which were accepted by the company. He received an advancement of $50 per week for expenses, which was deducted from his commissions. He owned his own automobile, paid his own expenses, and while he could sell anywhere in the state of Tennessee, he confined his activities to counties accessible to Bowling Green where he lived. He testified that when he made the agreement with a representative of the Grocers Biscuit Company nothing was said about the time he would devote to the business, but that he understood that he was to and did devote all his time to it; that he was not subject to the direction or control of the company as to when or where or how he went or as to prospects or customers upon whom he would call, except that the company would at times request him to call upon delinquent customers to collect bills; however, he was not on such a mission at the time of the accident, but was going to Waverly in his usual course of business to call upon his regular customers. He further testified that there was no requirement as to where he should live nor as to his liability as to sample cases or samples furnished him; that he was to be controlled by prices furnished by the company and to take orders that were acceptable; that the company had the right to terminate his employment at any time.
Counsel for appellant cite and rely on the case of Leachman v. Belknap Hardware & Mfg. Co., 260 Ky. 123, 84 S.W. (2d) 46, 48, which manifestly is conclusive and determines the question presented adverse to appellee. In that case the Belknap Hardware & Manufacturing Company had employed William Leming under a contract which in substance provided that the salesman was to receive $100 per month based on acceptable sales with a bonus for sales over a certain amount, the company to pay such traveling expenses incurred by the salesman while actually engaged in its business as were authorized under its rules. The salesman was to live in whatever territory assigned him and to make headquarters wherever the company might designate, devote all his time to the interests of the company, and assume full responsibility for samples turned over to him; carry at his own expense such automobile insurance as might in the opinion of the company be necessary to protect it and the salesman from...
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