Home Interiors & Gifts, Inc. v. Veliz

• Decision Date: 30 April 1985
• Docket Number: No. 13-84-184-CV,13-84-184-CV
• Citation: 695 S.W.2d 35
• Parties: HOME INTERIORS & GIFTS, INC., Appellant, v. Jesus VELIZ, Appellee.
• Court: Texas Court of Appeals

Page 35

695 S.W.2d 35

HOME INTERIORS & GIFTS, INC., Appellant, v. Jesus VELIZ, Appellee.

No. 13-84-184-CV.

Court of Appeals of Texas,

Corpus Christi.

April 30, 1985.

Rehearing Denied May 30, 1985.

Wm. L. Hubbard, Harlingen, for appellant.

Rafael Flores, McAllen, for appellee.

Before UTTER and KENNEDY, JJ.

OPINION

UTTER, Justice.

This is a personal injury case. Appellee suffered serious injuries in a vehicle collision, when a truck driven by Carl Guelker collided with a pickup truck, in which appellee was a passenger. Appellee brought suit against Guelker and Home Interiors & Gifts, Inc. (Home Interiors), alleging that Guelker was "an agent, servant, employee or representative" of Home Interiors who was acting "in the scope of his employment." At trial, Guelker's liability was judicially admitted, and the jury found that, at the time of the accident, Guelker was acting as an employee of Home Interiors. Based upon the jury's findings, the trial court rendered judgment that appellee recover damages from Guelker and Home Interiors, jointly and severally. Only Home Interiors appeals from the trial court's judgment.

In its first and second points of error, appellant Home Interiors contends that there was no evidence or insufficient evidence to support the jury's finding that Guelker was an employee of Home Interiors and (2) that the trial court erred in not granting its Motion for Instructed Verdict, which asserted that the evidence conclusively established as a matter of law that Guelker was an independent contractor. In considering a "no evidence" or "insufficient evidence" point of error, we will follow the well established test set forth in Glover v. Texas General Indemnity Company, 619 S.W.2d 400 (Tex.1981); Garza v. Alviar, 395 S.W.2d 821 (Tex.1965); In Re Kings Estate, 150 Tex. 662, 244 S.W.2d 660 (Tex.1951); CALVERT, No Evidence and Insufficient Evidence Points of Error, 38 Texas L.Rev. 361 (1960). In reviewing the trial court's denial of a motion for instructed verdict, we will apply the test set forth in Lasater v. Convest Energy Corporation, 615 S.W.2d 340 (Tex.Civ.App.--Eastland 1981, writ ref'd. n.r.e.).

The record reflects that the following undisputed evidence was adduced at trial: Home Interiors is a national direct-selling corporation, which sells home accessories through a "party plan system." Sales are made by a "displayer," who shows Home Interior's merchandise at a party in the home of "hostess" at which time invited guests are given the opportunity to place orders for the merchandise. The displayer sends the orders to Home Interior's Home Office, where the order is filled; and, the merchandise is shipped via a common carrier to a "freight distributor," who receives the merchandise and then becomes responsible for delivering the merchandise to the displayer. In turn, the displayer delivers the merchandise to customers.

Pursuant to a verbal agreement, Guelker was hired in May 1981 to be a freight distributor for Home Interiors. There was never a written contract between the parties. At the time of hiring, Guelker was told that he was not an employee but was an independent contractor of Home Interiors and that he "could not be construed to be an employee of Home Interiors' in any means." Guelker was instructed not to use Home Interiors' name or logo (e.g., on the side of his vehicles). Guelker was also told (1) that he was expected to deliver merchandise "every week that it's shipped" within forty-eight (48) hours of its receipt, excluding the day of receipt, (2) that, after receiving the merchandise, he would be responsible for the merchandise until it was securely delivered to the displayer and (3) that "it was his responsibility to get the freight delivered 52 weeks a year." Guelker was also given a copy of Freight Instructions for Distributors, which he was instructed to follow.

In performing his function as a freight distributor, Guelker "works his own hours"; Home Interiors did not tell him what hours he must work. Guelker provided his own transportation, hired help and rented warehouse space in order to accomplish his function as a freight distributor. Guelker did not receive and distribute merchandise for anyone other than Home Interiors; although, he was not prohibited from making deliveries for other companies. In addition to his duties as freight distributor, Guelker maintained a full-time job with Continental Trailways. Guelker usually made his deliveries after 5 p.m., and he "normally" delivered merchandise "within 24 hours" after receipt. Since he was not employed for any specific term, his services could have been terminated at will.

For his services, Guelker was paid monthly by check from the "Home Interiors & Gifts, Inc., Freight Distributors" account the following forms of compensation: (1) a fee of $6.60 per hundred pounds delivered, (2) a service charge of $2.50 for orders having less than $200 in wholesale value and (3) bonuses based (a) per pounds delivered and (b) upon a "growth-plus bonus plan." Also, Guelker received possible "tipping" from displayers for "additional services." In addition, Guelker received from Home Interiors no paid vacation, no paid holidays, no interest in any company profit-sharing plan, no longevity bonus, no insurance (health, life or worker's compensation) benefits and no company-provided vehicle, supplies or uniforms. Home Interiors did not withhold any social security or income tax on behalf of Guelker.

The Freight Instructions for Distributors set forth detailed procedures and policies for freight distributors to follow regarding (1) receiving and inspecting merchandise from common carriers, (2) reporting shortages and damaged merchandise to Home Interiors, (3) delivering merchandise to displayers, (4) returning or reshipping merchandise to Home Interiors, (5) processing freight claims and (6) notifying Home Interiors concerning (a) a freight distributor's change or shipping address, (b) a freight distributor's vacation or absence and (c) anticipated late shipments. The Freight Instructions for Distributors also listed "Home Office Contacts," with whom freight distributors were to deal when contacting Home Interiors' Home Office. The importance of the Freight Instructions for Distributors to our disposition of this case dictates that we copy these instructions in full below. ¹

According to these instructions, once Guelker accepted the merchandise, the responsibility for loss or damage was upon Guelker, and not upon Home Interiors. After receiving the merchandise, the decision regarding to whom Guelker was to distribute merchandise was "an arrangement that he had between the displayer and the manager and himself." Home Interiors shipped its merchandise to Guelker in boxes that were addressed to the appropriate displayers. Following receipt of the merchandise, Guelker was generally responsible for finding out how to get to the displayers' homes; however, Guelker's wife, the local unit manager for Home Interiors, sometimes gave Guelker a "D" form. A "D" form was a form that was completed by a displayer, and that provided "a little map as to how to get to" the displayer's home and indicated where in the home Guelker should leave the merchandise, if the displayer was not at home. At the time of the accident, Guelker had received merchandise from Home Interiors via a common carrier and was in the process of delivering the merchandise to a displayer.

The test in determining whether a master-servant relationship exists is whether or not the employer has the "right to control" the details of the work. Newspapers, Inc. v. Love, 380 S.W.2d 582 (Tex.1964). In Newspapers, Inc. v. Love, the Texas Supreme Court wrote:

The doctrine which holds the master liable for the torts of his servant committed in the course of his employment is essentially a policy doctrine and except for acts personally directed by the principal, the liability of the master is founded upon the contractual arrangement with the servant, either expressed or implied which vests in him the right to control the details of the work. Glasgow v. Floors, Inc., of Texas (1962), 356 S.W.2d 699, no wr. hist.; Philip Mechem, "Agency" §§ 413-416. Certainly if the right of control of details has a contractual basis, the circumstance that no actual control was exercised will not absolve the master of liability. Ballard & Ballard Company v. Lee's Administrator (1909), 131 Ky. 412, 115 S.W. 732; Phillip Mechem "Agency" § 415. Conversely, an occasional assertion of control should not destroy a settled relationship agreed to by the parties.

Newspapers, Inc. v. Love, 380 S.W.2d at 589.

The contractual arrangement may be oral or written. Eagle Trucking Co. v. Texas Bitulithic Co., 590 S.W.2d 200 (Tex.Civ.App.--Tyler 1979), aff'd. in part, rev'd. in part, 612 S.W.2d 503 (Tex.1981).

In Smith Brothers, Inc. v. O'Bryan, 127 Tex. 439, 94 S.W.2d 145 (Comm.App.1936, opinion adopted), the Texas Commission of Appeals wrote:

Our decisions have for a long time emphasized the necessity of control over the details of the work to be done and the means by which it is done in order to create the relationship of master and servant. For instance, in many cases the courts have adopted the language quoted in Cunningham v. International Railroad Co., 51 Tex. 503, 510, 32 Am.Rep. 632, from Shearman and Refield on Negligence, to wit: "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 the work, but in all its details." (Italics ours.)

In Shannon v. Western Indemnity Co. (Tex.Com.App.) 257 S.W. 522, 523, the following quotation from Street on Personal Injuries was quoted with approval: "No better test can be applied than to say that the relation of master and servant exists where the master retains or exercises the power of control in directing, not merely the end sought to be accomplished...