Gulf Refining Co. v. Huffman & Weakley

• Citation: 297 S.W. 199
• Decision Date: 26 August 1927
• Docket Number: (No. 1.)
• Court: Supreme Court of Tennessee
• Parties: GULF REFINING CO. OF LOUISIANA v. HUFFMAN & WEAKLEY.

Page 199

297 S.W. 199

GULF REFINING CO. OF LOUISIANA v. HUFFMAN & WEAKLEY.

(No. 1.)

Supreme Court of Tennessee.

August 26, 1927.

Certiorari to Court of Appeals.

Action by Huffman & Weakley against the Gulf Refining Company of Louisiana. Judgment for plaintiff, and defendant appealed. Judgment affirmed by the Court of Appeals, and defendant petitions for certiorari. Judgment of the Court of Appeals affirmed.

E. T. Weakley, of Dyersburg, and G. T. Fitzhugh, of Memphis, for plaintiff.

L. Jerre Cooper, of Dyersburg, for defendant.

CHAMBLISS, J.

The petition for certiorari challenges a judgment for damages by fire resulting from alleged negligent handling of a gasoline truck, the storehouse of plaintiffs being destroyed. The jury found negligence on the facts and the Court of Appeals has concurred in that finding, which practically concludes petition on this question in this court. However, the main reliance is upon another ground. The petitioner, Gulf Refining Company, insists that the truck was owned and its driver employed and controlled, not by it, but by one Overall, whose relation to it was that of an independent contractor; that the terms of its engagement of Overall were set out in a writing introduced; that the trial court erred in failing to hold this instrument to be determinative and in failing to construe it and instruct the jury as to its conclusive effect; that the question of the relations between the company and Overall was thus one of law which should not have been submitted to the jury.

The trial judge and the Court of Appeals found that there was such evidence introduced of circumstances, conditions, and relations, outside of the writing between the parties, as called for a submission to the jury of this practically controlling question. In this we concur.

Whether one is or is not an independent contractor is often on the record presented a mixed question of law and fact. It is so in this case. Evidence was properly admitted showing the dealings between the parties, their course of business, authority exercised by the company, etc. The written agreement, with certain pertinent language italicised by us, is as follows:

"This memorandum of agreement made and entered into this 21st day of August, 1923, by and between the Gulf Refining Company of Louisiana, party of the first part, and J. U. Overall, Jr., of Dyersburg, Tenn., party of the second part, witnesseth:

"The party of the second part agrees to rent a warehouse at Dyersburg, Tenn., suitable for the storage of oils, rental of said warehouse to be paid by the said party of the first part.

"Party of the first part agrees to ship to party of the second part lubricating oils, illuminating oils, and gasoline, in carload lots, which shipments are to be received by the party of the second part and sold by him at prices named by party of the first part — all sales of such oils to be for cash, or, if on credit, only to such parties as are acceptable to party of the first part and upon terms authorized by them.

"Where first party orders second party to sell on credit, second party shall deliver a signed receipt, or in case the oil is shipped out of the city of Dyersburg, Tenn., second party will deliver an original bill of lading from the railroad company, which shall constitute a receipt.

"Party of the second part is to be responsible to the party of the first part for all goods shipped to him, and is to account for all sales in accordance with above paragraph, sending weekly a statement showing all sales made and remitting weekly to party of the first part, at their New Orleans office, all moneys received by him from sale of above-named goods.

"Second party shall render to party of the first part statement on the first day of each month, showing in detail the goods on hand.

"Second party agrees to pay all drayage and delivery charges, and collect all empty drums and barrels and ship same back to first party as ordered.

"It is strictly understood that all goods shipped party of the second part by party of the first part are the property of the party of the first part until sold.

"On or about the first of each month, party of the first part will send to party of the second part a statement showing the sales made by party of the second part during the preceding month, remitting party of the second part commission earned. On such sales, said commission to be two cents per gallon on kerosene and gasoline when sold in milk cans or tank wagons, and one and one-half cents per gallon when sold in original package such as drums, barrels, cans, or cases, and 10 per cent. of invoice price on lubricating oils, where oil is delivered by party of the second part without payment of railroad freight charges. Where shipments are made by railroad, commission to party of the second part is to be one cent per gallon on kerosene or gasoline and 10 per cent. of the invoice on lubricating oils, and party of the first part is to allow party of the second part amount of freight paid on such shipments. An additional commission will be paid on gasoline and kerosene of one-half cent per gallon when sold and delivered outside the city limits of Dyersburg, Tenn., by wagon or truck of the party of the second part. Party of the first part reserves the privilege of making shipments from its stock of goods in hands of party, and second party agrees to fill such orders as may be sent them by party of the first part — no commission to be allowed party of the second part on...