Miami Herald Pub. Co. v. Kendall

• Decision Date: 07 March 1956
• Citation: 88 So.2d 276
• Parties: The MIAMI HERALD PUBLISHING COMPANY, a corporation, Appellant, v. Mrs. Mary KENDALL, a widow, Appellee.
• Court: Florida Supreme Court

Page 276

88 So.2d 276

The MIAMI HERALD PUBLISHING COMPANY, a corporation, Appellant, v. Mrs. Mary KENDALL, a widow, Appellee.

Supreme Court of Florida, Special Division B.

March 7, 1956.

Rehearing Denied June 7, 1956.

Dixon, DeJarnette, Bradford & Williams and H. Reid DeJarnette, Miami, for appellant.

Edward E. Fleming and Nichols, Gaither, Green, Frates & Beckham, Miami, for appellee.

THOMAS, Justice.

The appellee was awarded a verdict in her action against the appellant for injuries she received when she was struck by a motorcycle operated by Wayne Molesworth who was, at the time, delivering the morning issue of the Miami Herald.

There is no dispute about the negligence of Molesworth; in fact, it is conceded that he was at fault and that the appellee was injured as a result of his wrongdoing.

The question here for decision is the status of Molesworth at the time of the mishap. The appellant contends he was an independent contractor; the appellee insists he was an employee of the appellant and that appellant is therefore liable for the injury caused her.

For nearly twenty years newsboys have delivered the Miami Herald under a contract identical with, or similar to, the one involved in this litigation which contains the provision, among others, that 'the NEWSDEALER is a separate, independent contractor and not subject to the exercise of any control by the PUBLISHER over his method of distributing or otherwise handling the delivery of said newspaper within his territory other than as expressly set forth in this contract * * *.' (Italics supplied.)

The contract between the appellant and Molesworth carried the provisions that the appellant would furnish Molesworth, at a stipulated price, as many copies of daily and Sunday editions as he ordered, would supply him with the names and addresses of all persons wishing the newspaper to be delivered to them in the territory assigned to Molesworth, would credit the carrier for shortages of papers, and would credit Molesworth 'for subscriptions paid in advance * * *.'

The appellant asserts that the facts in the instant case so closely resemble those with which we dealt in Florida Publishing Co. v. Lourcey, 141 Fla. 767, 193 So. 847, that the present controversy may be determined in its favor on authority of that decision. The appellant also insists that the pivotal question is one of law notwithstanding the circuit judge's action in submitting the issue of Molesworth's status to the jury.

The appellant reminds us of a familiar criterion by which it may usually be determined whether one performing services is an independent contractor or employee, that is, roughly, if the one securing the services controls the means by which the task is accomplished, the one performing the service is an employee, if not, he is an independent contractor. The contract, says the appellant, by its very terms made the newscarrier an independent contractor, and any control exercised by appellant was directed to the result--not the manner of performance.

Before turning to the appellee's position, it seems logical to quote from the opinion in Florida Publishing Co. v. Lourcey, supra, the part appellant quoted in its brief because the language we will italicize brings into focus the issue in this appeal:

'The contract in terms provides that Seig 'shall at all times occupy the position of an independent contractor and control all ways, means, method of conveyance, and distribution relating to the proper performance and completion of the agreement. The corporation looks only to the party of the third part and said carrier to obtain the desired results as herein set out'.

'These provisions were ample to make Seig an independent contractor if they were not to all intents and purposes vitiated by other provisions of the contract or the practice of the parties under it. * * *

'The parts of the contract relied on to deprive it of its independent carrier relation are the provisions with reference to its termination, promoting the circulation of the corporation's newspapers, the free distribution of sample copies and the retention of subscription lists from the carrier including the practice of the carrier in the performance of these provisions.

* * *

* * *

'We find nothing in any of these requirements or the practice under them to deprive the contract of its independent character. It was in every respect lawful and normally without danger to others and Seig was subject to the will of the corporation only as to results of his work and he was permitted to perform it according to his own methods. * * *' (Italics supplied.)

The appellee contends that there was abundant evidence that the manner of the performance of Molesworth's services supported the conclusion that he was under the control of the appellant to such extent as to be an employee. In Sec. 220, Restatement of the Law of Agency, recognized in Margarian v. Southern Fruit Distributors, 146 Fla. 773, 1 So.2d 858, the important factors bearing on the subject are set forth. So the question, from appellee's standpoint, is whether or not the record supports the jury's finding that the newsboy was an employee because of the 'practice of the parties' under the contract regardless of the caption and language of the instrument.

We have detailed the provisions of the contract with reference to the obligations of the publisher. We now condense the contents of the contract defining the obligations of the newscarrier. He was to furnish the names of new subscribers, to pay to the appellant within a certain time money collected, to present within 48 hours claims for shortages in papers, to call attention to the appellant within six days to errors in statements, to handle The Miami Herald exclusively, to keep in confidence the names of subscribers, to select a substitute in the event he was unable to make his deliveries and be 'responsible' for the substitute, to bear all costs of enforcing the contract, to give bond for his faithful performance of the agreement, to...