Gulf Refining Co. v. Wilkinson

• Decision Date: 19 October 1927
• Citation: 114 So. 503,94 Fla. 664
• Parties: GULF REFINING CO. et al. v. WILKINSON.
• Court: Florida Supreme Court

114 So. 503

94 Fla. 664

GULF REFINING CO. et al. v. WILKINSON.

Florida Supreme Court, Division A.

October 19, 1927

Error to Circuit Court, Palm Beach County; C. E. Chillingworth Judge.

Action by William Wilkinson against the Gulf Refining Company and another for damages from the destruction of property by fire. Joint judgment for plaintiff against both defendants, and they bring error.

Reversed.

Ellis C.J., dissenting.

Syllabus by the Court

SYLLABUS

Right to control method of work is one of principal considerations in determining whether employee is independent contractor or servant. The right of control as to the mode of doing the work contracted for is one of the principal considerations in determining whether one employed is an independent contractor or a servant.

Employee subject to control only as to result, is independent contractor, but not if subject to control as to means. As a general rule, if an employee is merely subject to the control or direction of the owner as to the result to be obtained, he is an independent contractor; if he is subject to the control of the employer as to the means to be employed, he is not an independent contractor.

Negligence will not ordinarily be imputed to party, if he neither authorized conduct, participated therein, nor had right to control it. Negligence on the part of another will not ordinarily be imputed to a party, if he neither authorized such conduct, nor participated therein, nor had the right or power to control it.

Owner of gasoline sold on commission by another furnishing and controlling own trucks and drivers, held not liable for driver's negligence, causing fire. One who sells gasoline on commission for another, but who furnishes his own trucks and drivers for delivering such gasoline to his customers such truck drivers being employed and paid by him and under his control, and the party for whom he was selling gasoline neither employing, paying, nor having any control over such truck drivers, such latter party is not liable for damage caused by the negligence of one of such truck drivers in the operation of one of such trucks.

Joint tort is essential to joint action against several parties, and where evidence fails to show joint liability, joint judgment is erroneous. A joint tort is essential to a joint action for damages therefor against several parties, and, where the evidence fails to show a joint liability, a joint judgment is erroneous, and will be reversed.

COUNSEL

M. D. Carmichael, Ernest Metcalf, and Blackwell & Donnell, all of West Palm Beach, for plaintiffs in error.

Bussey & Johnston, of West Palm Beach, for defendant in error.

OPINION

BROWN J.

The first count of the declaration charged in substance that the defendant Gulf Refining Company had engaged in the business of selling and dealing in products of gasoline and oil and disposing of the same in Palm Beach county, Florida, by and through the defendant P. W. Weybrecht; that the two defendants named had in their employment one K. E. Holley, who was employed as a truck driver, and that it was his duty to distribute gasoline and oil for the defendants, said gasoline and oil being carried in a tank affixed to the truck driven by the said K. E. Holley; that while so engaged Holley drove a tank truck from which he knew gasoline was leaking in great quantities, and which he knew was highly inflammable, to within a few feet from a building owned and used by the plaintiff in conducting his merchantile business, and there stopped said truck, which became inflamed, caused by the great quantity of gasoline leaking from the tank, and through the negligence of said Holley in permitting said gasoline to so leak therefrom, it being his duty to prevent it, and as a result of his negligence said building owned and used by the plaintiff and his entire stock of merchandise therein also became inflamed from said burning truck, and was completely consumed and destroyed by fire.

The second count was substantially the same as the first.

The defendants filed their separate pleas. The Gulf Refining Company filed a plea of the general issue, and a plea denying that either the driver of the truck or defendant Weybrecht was employed as its agent; also a plea alleging that neither Weybrecht nor Holley were its agents or employees, that they sold their products to Weybrecht as a commission merchant on a commission, and setting up the contract between said company and Weybrecht. By this contract the refining company agreed to ship to Weybrecht gasoline and oil in carload lots, to be received by him and sold at prices named by the refining company, all sales to be for cash, and, if on credit, only to such parties as were acceptable to the refining company and upon terms authorized by it. Weybrecht was to be responsible for all goods shipped to him, and to account for all sales, sending a weekly statement, showing all sales made, and remitting weekly to the refining company at its Atlanta office, and also rendering a statement on the 1st day of each month, showing in detail the goods on hand. Weybrecht agreed to pay all drayage and delivery charges, and collect all empty drums and barrels, and ship the same back to the refining company as ordered, all goods shipped to remain the property of the refining company until sold. The contract further provided that on the 1st of each month the refining company was to send a statement to Weybrecht, showing the sales made by him during the preceding month, and remitting certain commissions earned by him on such sales, 1 1/2 cents per gallon on gasoline and kerosene, and 10 per cent. of the invoice price on lubricating oils. The refining company reserved the privilege of making shipment from its stock of goods in the hands of Weybrecht, and the latter agreed to fill such orders as might be sent to him by the company, no commission to be allowed on such shipments, but the company to pay him 25 cents per barrel for drayage and clerical work in making such shipments.

The evidence did not show what caused the leaking gasoline to catch fire. There is no question but what the gasoline was leaking badly from the bank, that this leak was caused in some way in going over the ferry, that the driver's attention had been called to this, and it is a fair inference from the evidence that the fire would not have been communicated to plaintiff's building, but for the leaking gasoline. Whether the break in the pipe or tank was due to the driver's negligence, or not, is not explained by the evidence. The evidence shows that there was no explosion. Witness McLean testified that he sold this truck and four others to Mr. Weybrecht, that this truck had been in use only about six months, and that he did not know of any chance for a fire to start in this sort of a truck.

In order to say that the evidence afforded any reasonable inference of negligence, it would seem that the only negligence, as proximate cause of the damage, which could have been inferred therefrom, was the manner in which the truck containing the gasoline was rapidly driven by Holley in its badly leaking condition, and brought to a stop in close proximity to plaintiff's building, after he had driven rapidly from the ferry, a distance of a mile, and thus probably heating the exhaust pipe. But the negligence alleged in the declaration was that Holley permitted the gasoline to leak, it...