Jones v. Shehee Ford Wagon & Harness Co., Inc.

• Decision Date: 02 November 1934
• Docket Number: 4838
• Citation: 157 So. 309
• Parties: JONES v. SHEHEE FORD WAGON & HARNESS CO., Inc., et al
• Court: Court of Appeal of Louisiana — District of US

157 So. 309

JONES v. SHEHEE FORD WAGON & HARNESS CO., Inc., et al

No. 4838

Court of Appeal of Louisiana, Second Circuit.

November 2, 1934

Rehearing granted Dec. 5, 1934.

Irion &amp Switzer, Henry F. Turner, and Dickson & Denny, all of Shreveport, for appellants.

Kennon & Kitchens, of Minden, for appellee.

OPINION

DREW Judge.

Plaintiff instituted this suit against the Shehee Ford Wagon & Harness Company, Incorporated, of Shreveport, and its insurer, Continental Casualty Company, seeking judgment against them, in solido, in the sum of $ 7,500, with interest and costs. Later plaintiff filed a supplemental and amended petition seeking an increase in the amount sued for from $ 7,500 to $ 11,500.

The suit is based upon an alleged cause of action wherein plaintiff set forth that on Friday, June 16, 1933, he was riding as a guest in a school truck with one Joe Kight on the White Hall Church road in Claiborne parish, La. He then alleged that as the truck approached the Blackman and Haynesville highway, which crosses the White Hall Church road at right angles, it gradually slowed down and finally came to a stop before entering the intersection, and that a car, driven by one J. M. Tarpley, was approaching on the Blackman-Haynesville highway from the left of the truck and made a sweeping right-hand turn into the White Hall Church road; that the car came over onto the side of the road where the truck was in which plaintiff was sitting, which he alleges was on its right-hand side of the road, and crashed into the truck and injured plaintiff. Plaintiff alleges that J. M. Tarpley, the driver of the car, was an employee of the Shehee Ford Wagon & Harness Company, Incorporated, and that he was at the time on a mission of his master and acting within the scope of his employment. Plaintiff itemized the damages claimed.

The Shehee Ford Wagon & Harness Company, Incorporated, answered the petition of plaintiff denying the material allegations of the petition and alleged, as an affirmative defense, that J. M. Tarpley was not an employee of it, but that he was an independent contractor.

The Continental Casualty Company filed two exceptions, one termed an exception of no cause or right of action, and the other a plea of prematurity, both of which were overruled. It then filed an answer denying the allegations of plaintiff's petition and alleged that J. M. Tarpley was not an employee of the Shehee Ford Wagon & Harness Company, Incorporated, but was an independent contractor.

After trial the lower court rendered judgment in favor of plaintiff and against the defendants, in solido, for $ 2,212.50, from which judgment both defendants have perfected an appeal.

It is admitted in this court that the accident in which plaintiff alleges he was injured was caused by the gross negligence of J. M. Tarpley, the driver of the car; therefore, the only defense urged in this court by the Shehee Ford Wagon & Harness Company, Incorporated, is that of independent contractor.

The facts of the employment of Tarpley by the said Wagon & Harness Company can best be shown by quoting the testimony of Mr. Shehee, president of said company, which is the only testimony regarding the contract of employment of Mr. Tarpley. It is as follows:

"Q. Mr. Shehee, you are the president of the Shehee Ford Wagon &amp Harness Company, the defendant in this suit? A. Yes, sir.

"Q. Do you know Mr. Jim Tarpley? A. Yes, sir.

"Q. What is his business? A. Traveling salesman for Shehee Ford & Wagon Company.

"Q. Is that the defendant in this suit? A. Yes, sir, one of them.

"Q. Was he working for you on the afternoon of Friday, June 16, 1933. A. I suppose he was.

"Q. Is that in his regular route to go from Haynesville to Leton? A. He goes wherever he feels like going.

"Q. You have talked with him about this? A. Yes, sir.

"Q. What was his regular run? A. He has a regular territory that he makes different weeks. He has no regular run, but he goes where he pleases.

"Q. To be at that place, the place of the accident, at that time was in his territory? A. That is all in his territory.

"Q. Mr. Joe Lee at Leton is one of your customers? A. Yes, sir.

"Q. Mr. P. C. Ware at Haynesville is one of your customers? A. Yes, sir.

"Q. What kind of car does he drive? A. Model "A' Ford.

"Q. Does it belong to you? A. Yes, sir.

"Q. That was your car? A. Yes, sir.

"Q. Do you carry insurance on it? A. Yes, sir.

"Q. Who with? A. Continental Casualty Company, I believe.

"Q. Do you have your policy with you? A. Yes, sir.

"Q. Let me see it. (3)5C

"Q. Think you have already testified you were the president of the Shehee Ford Wagon & Harness Company, Inc.? A. Yes, sir.

"Q. Explain the arrangement between yourself and Mr. Tarpley with regard to his employment? A. Well, he was employed as a traveling salesman with headquarters in Homer, and of course, he has his regular routes that he is supposed to travel each week.

"Q. Who makes up that route? A. Well, it is an established route by both of us. When he is traveling in his territory, he goes where he wants to. He knows more about that than I do.

"Q. What territory does he have? A. Everything east of Red River in Louisiana. Part of Webster Parish, Bossier Parish, Claiborne, Bienville, etc.

"Q. Does he report to you every morning? A. No, sir.

"Q. Do you have any control over where he is going? A. He goes where he wants to.

"Q. Does he call you up or report and get instructions where to go each day? A. No, sir.

"Q. How often does he report to you? A. Some weeks he is in twice and the next week he may not be in at all.

"Q. Does he report where he has been or where he is going? A. No, sir.

"Q. Is he at any time required to report to you where he is going on a particular day? A. No, sir.

"Q. To whose discretion is that left? A. To his.

"Q. You furnish him a car for that purpose? A. Yes, sir.

"Q. Did you know on June 16, 1933, when this accident occurred, he was going to Leton at the time he went? A. No, sir.

"Q. Did you send him there? A. No, sir.

"Q. Did anyone in the corporation send him? A. No, sir.

"Q. This automobile he uses, is it correct that he buys the gasoline and you pay him for it? A. We furnish him expense money.

"Q. Is that a regular amount? A. No, sir.

"Q. Does the amount he spends vary? A. Yes, sir. When he started to work we furnished him so much money. From that time on he sends his expense book in and we give him cash for it.

"Q. Where is Shehee Ford Wagon & Harness Company? A. 619 Spring Street, Shreveport.

"Q. Does it have a store or anything in Homer? A. No, sir.

"Q. Why is Mr. Tarpley's headquarters in Homer? A. He lives there.

"Q. This accident occurred on June 16th? A. I think so.

"Q. When did you report it to me or to Mr. James Smith, the agent of the insurance company?

"By Mr. Kennon: That is objected to as self-serving, further, for the reason that it is res inter alios acta.

"By the Court: Let the objection be referred to the effect of the evidence and the evidence admitted subject to the objection.

"A. I reported it to Mr. Smith on the day I received the letter from the attorney at Minden. That is the first I knew of it.

"Q. If you saw that letter, would you recognize it? A. Yes, sir, I think so.

"Q. Is that it? A. Yes, sir.

"Q. That letter was dated when? A. July 12th.

"Q. Then you received it on July 12th? A. I think I received it the following day.

"Q. Had you seen Mr. Tarpley between the time of the accident and the day you received this letter? A. Yes, sir.

"Q. And he had not mentioned it? A. Yes, sir, said he had an accident, but nothing about Mr. Jones.

"Q. And you did not know about Mr. Jones? A. No, sir.

"Q. And do you think Mr. Tarpley knew about Mr. Jones? A. I don't know.

"Q. You paid Mr. Tarpley a commission on the stuff he sold? A. No, sir, straight salary.

"Q. Do you have a maximum that if he goes over that he gets a commission? A. No, sir.

"Q. His business is to do what? A. To call on the trade, sell them merchandise.

"Q. If he finds a new man in the territory is he supposed to call on him? A. Yes, sir.

"Q. Believe you say he gets a straight salary? A. Yes, sir.

"Q. He has an established route. In other words, you are his boss and could change his territory over in Caddo Parish? A. Yes, sir.

"Q. In other words, he is just a straight employee of yours by the month? A. He is supposed to be working for me.

"Q. If you decided some particular day you wanted him to call on somebody in Caddo Parish, you could have him do it, and while you don't take the trouble to supervise him any time of the day, you have that privilege? A. Yes, sir, if he didn't, I could fire him.

"Q. You have the right to tell him to cover any certain territory? A. I think I have, yes.

"Q. He is not an independent contractor, is he?

"By Mr. Switzer: That is objected to as calling for an opinion of the witness that is something for the court to determine.

"By the Court: The objection is sustained.

"Q. Who does he work for? A. Shehee Ford Wagon & Harness Company.

"Q. Whose business was he on on June 16, 1933, when he went to Leton? A. I presume ours.

"Q. You were paying for his gasoline and oil? A. Yes, sir.

"Q. He was in your car? A. Yes.

"Q. And his going to Leton, that would be within the scope of his employment with you? A. Yes, sir.

"Q. And you don't tell the court that he was not an employee of yours? A. No, sir.

"Q. And he was in your employ with your car burning your gas at that time? A. Yes, sir.

"By Mr. Switzer:

"Q. If Mr. Tarpley did not call on the trade within any one day, would you know of it? A. No, sir, we would not know it.

"Q. Would you fire him when you found it out? A. No, sir.

"Q. What day was it when you first found out about this car having been in a...