Magnolia Petroleum Co. v. Johnson

• Decision Date: 11 July 1921
• Docket Number: 102
• Citation: 233 S.W. 680,149 Ark. 553
• Parties: MAGNOLIA PETROLEUM COMPANY v. JOHNSON
• Court: Arkansas Supreme Court

233 S.W. 680

149 Ark. 553

MAGNOLIA PETROLEUM COMPANY v. JOHNSON

No. 102

Supreme Court of Arkansas

July 11, 1921

Appeal from White Circuit Court; J. M. Jackson, Judge; affirmed.

Judgment affirmed.

Cockrill & Armistead and John W. Newman, for appellant.

Defendant was entitled to a peremptory instruction in its favor, (1) because the drivers were employees of an independent contractor, and (2) because the plaintiff was equally negligent as the drivers.

There was no evidence as to defendant retaining any control or direction over the work of the drivers making deliveries. 105 Ark. 477; 118 Ark. 561; 128 Minn. 508; 152 Mich. 613; 203 N.Y. 191.

Plaintiff was equally as negligent as the drivers. 96 Ark. 500.

John E Miller and C. E. Yingling, for appellee.

The drivers were employees of appellant. Independent contractor defined. 135 Ark. 117; 2 Words and Phrases p. 1034. See 144 Ark. 401; 132 U.S. 523; 14 R. C. L. p. 67; 38 A. S. R. 564.

The question of contributory negligence was for the jury.

OPINION

SMITH, J.

Appellee recovered judgment against appellant company for the value of a barn and its contents alleged to have been negligently set on fire by the agents, servants and employees of appellant. Liability on the part of appellant is denied upon two grounds, first, that it was not responsible for the acts of the persons whose negligence caused the fire, and second, that appellee was guilty of contributory negligence which defeats his right of recovery.

Appellant is engaged in producing and selling oils and gasoline, with its principal Arkansas office in the city of Little Rock. In order to supply the territory in and about Searcy appellant entered into a contract with one J. N. Smith, who was in the transfer business at Searcy. Under this contract the company shipped oil and gasoline to Searcy and stored it in their tanks there for sale, with Smith in charge.

Smith undertook to handle the property with proper care, and to make sales and deliveries of gasoline on a commission basis, graduated according to the expense of delivery. The commission on deliveries in the city was two cents per gallon and to country points was three cents.

The company supplied the containers for the oil and gasoline, while Smith, in consideration of the commissions paid, used the teams, wagons and drivers employed by him in his transfer business. The company was not consulted in the employment or discharge of these men, whose wages were fixed and paid by Smith.

The contract is a very elaborate one, and designates Smith throughout as the company's agent, and he signed it in that capacity.

The company furnished the gasoline and oil and specified the prices at which it should be sold. The company required the drivers of the wagons making deliveries in the country to use sales slips furnished by it. These slips were signed by the driver, and were so prepared that a carbon copy might be delivered to the purchaser. The originals were turned into the company, and in cases where accounts were run bills were sent out from the company's office in Little Rock. Any money collected by the drivers was turned in by them to Smith, and all checks given in payment for oil or gasoline were made payable to the order of the company. The company caused to be painted on the wagons and tanks used in making deliveries the words, "Magnolia Petroleum Company," this being the name of appellant company.

Section 21 of the contract between Smith and the company contains the following recitals: "It is expressly understood and agreed that the above rates of commission apply on sales made by agents, and the commissions to apply on sales made by salesmen, managers and others, and the commissions to apply on transfers between agencies, on home office contracts and on railroad contracts, are allowed as full compensation to agent for service to be rendered in connection with the proper handling of the company's business in the territory assigned to the agency. The duties of the agent in return for said compensation, includes the proper care of stock placed in his charge, storage tanks, warehouse and other equipment, soliciting and carrying on business under the direction of the division manager, and other authorized representatives, and the making of deliveries, the collecting of accounts, the making of reports required, unloading cars, and such other services as may be required for the proper conduct of the business."

Section 22 of that contract provides that the company shall furnish, free of charge, all forms, stationery and postage for the proper conduct of the business, and that all other items of expense shall be assumed by the agent, Smith.

No complaint is made of the instructions given on this subject. The insistence is that the undisputed evidence shows that Smith was an independent contractor, and that the drivers of the wagons were the servants of Smith.

The majority of the court are of the opinion that the facts stated made a case for the jury, and that the...