Mistletoe Exp. Service, Inc. v. Culp

• Decision Date: 08 December 1959
• Docket Number: No. 37987,37987
• Citation: 1959 OK 250,353 P.2d 9
• Parties: MISTLETOE EXPRESS SERVICE, Inc., a Corporation, Plaintiff in Error, v. William C. CULP, Defendant in Error.
• Court: Oklahoma Supreme Court

Page 9

353 P.2d 9

MISTLETOE EXPRESS SERVICE, Inc., a Corporation, Plaintiff in Error, v. William C. CULP, Defendant in Error.

No. 37987.

Supreme Court of Oklahoma.

Dec. 8, 1959.

Rehearing Denied May 17, 1960.

Second Petition for Rehearing Denied June 14, 1960.

Syllabus by the Court

1. An independent contractor is one who engages to perform a certain service for another, according to his own method and manner, free from control and direction of his employer in all matters connected with the performance of the service, except as to the result thereof.

2. The line of demarcation between an independent contractor and a servant is not clearly drawn, but the question of such relationship must be determined upon the facts peculiar to each case, and if the evidence is such that the minds of reasonable men may differ as to whether the relationship established was that of contractee and independent contractor or master and servant, the determination of such relationship is for the jury under proper instruction by the court.

3. If the instructions, taken together and considered as a whole, fairly present the law applicable to the issues raised by the pleadings in which competent evidence has been introduced and adequately cover the phase of the law presented by the requested instructions, they are sufficient and there is no error in refusing requested instructions.

4. Where an employer, engaged in business as a common carrier, operating under a certificate of convenience and necessity from the Corporation Commission, had knowledge of its employee's dangerous, hot-tempered, antagonistic and pugilistic disposition, such employer is liable to third persons for the tortious acts of such employee or agent, where it is shown that such employee or agent was acting within the scope of his employment and that such act complained of was done as a means of carrying out the job assigned to him.

Appeal from Superior Court of Creek County; G. B. Chuck Coryell, Judge.

Action to recover damages for personal injuries. From a judgment in favor of the plaintiff, the defendant appeals. Affirmed.

Hudson, Hudson, Wheaton & Kyle, Tulsa, for plaintiff in error.

Luttrell & Luttrell, Norman, Arthurs, Blackstock & McMillan, Bristow, Thomas J. Horsley, Hicks Epton, Wewoka, for defendant in error.

JOHNSON, Justice.

William C. Culp, d/b/a Culp Music Company, operated a music and appliance store in the city of Norman. John W. Wolfe was the commission agent for and in charge of the office of the Mistletoe Express Service, Inc. in the city of Norman, which company operated an express business carrying freight between cities and towns within the State of Oklahoma.

Some time after Mistletoe, through its commission agent Wolfe, had delivered a telvision tube to him, Culp advised Wolfe that it had been damaged in transit. A claim for the damage was prepared. Wolfe picked up the tube and claim, and both were sent to the Oklahoma City office of Mistletoe. A short time later Mistletoe advised Wolfe that the claim was being denied and returned the tube to its Norman office with directions that Wolfe redeliver it to Culp.

Wolfe delivered the tube to Culp, telling him that his claim had been denied by Mistletoe. Culp advised him, before two of Culp's employees, that he would not accept the tube. Wolfe's temper flared. Words were exchanged, and as Culp turned his head toward Wolfe, without warning, Wolfe struck Culp in the face with his left fist with such force that he was knocked several feet back and to the floor, rendered unconscious for a period of time, several teeth were knocked out and others were loosened and his lip badly cut.

Culp brought this action for damages for the resulting personal injuries suffered against the Mistletoe and Wolfe. He alleged that Wolfe was the agent, servant and employee of Mistletoe, and that by reason thereof it was liable for the consequences of Wolfe's act. In addition, he alleged that Mistletoe was negligent in hiring Wolfe, who was known to be a hottempered individual, quarrelsome, pugilistic and dangerous. He further alleged that Mistletoe ratified the act of Wolfe by retaining him as agent after the attack on plaintiff became public knowledge.

Mistletoe answered by way of general denial, then alleged that Wolfe was an independent contractor under oral contract of employment, and it was not liable for his acts; that even if he were its employee, the assault upon Culp was not within the scope contemplated by his employment.

The trial resulted in a jury verdict in favor of the plaintiff and against both defendants upon which the judgment was entered. In due time, motion for new trial was filed by Mistletoe and overruled, and the appeal was perfected to this court by it.

Mistletoe does not question the nature, extent and permanency of the plaintiff's injuries. Neither does it contend that the verdict was excessive. The correctness of the verdict and judgment in those respects will be presumed.

Mistletoe first contends that the trial court erred in overruling its demurrer to the evidence and motion for directed verdict for the reason that the undisputed evidence shows Wolfe was an independent contractor, it having reserved no rights nor did it ever control the physical details of the work to be done by Wolfe.

An independent contractor is defined as one who engages to perform a certain service for another, according to his own method and manner, free from control and direction of his employer in all matters connected with the performance of the service, except as to the result of the service. However, as a general rule, the line of demarcation between an independent contractor and a servant is not clearly drawn, but the question of such relationship must be determined upon the facts peculiar to each case, and if the evidence is such that the minds of reasonable men may differ as to whether the relationship established was that of contractee and independent contractor, or master and servant, the determination of such relationship is for the jury under proper instructions by the court. Ellis & Lewis, Inc. v. Trimble, 177 Okl. 5, 57 P.2d 244; Keith v. Mid-Continent Petroleum Corp., Okl., 272 P.2d 371; Cook v. Knox, Okl., 273 P.2d 865; Continental Oil Co. v. Elias, Okl., 307 P.2d 849.

From the above definition and cited authorities, we find that in the determination of whether the relationship between Wolfe and Mistletoe was that of a servant or independent contractor the many elements to be considered are: (1) the nature of the contract between the parties, whether written or oral; (2) the degree of control which by the agreement the employer may exercise on the details of the work or the independence enjoyed by the contractor or agent; (3) whether or not the one employed is engaged in a distinct occupation or business and whether he carries on such occupation or business for others; (4) whether the employer or the workman supplies the instrumentalities, tools and the place of work for the person doing the work; (5) the length of time for which the person is employed; (6) the method of payment, whether by the month or by the job; (7) whether or not the work is a part of the regular business of the employer; (8) whether or not the parties believe they are creating the relationship of master and servant; and (9) the right of either to terminate the relationship without liability.

The evidence discloses that the agent, Wolfe, was employed under oral contract by Mistletoe as a commission agent in charge of its Norman office; that he was subject to the general control of the company supervision at all times, even to the extent of directing him to make specific pickups of freight at off hours; that Mistletoe rented the Norman office, paid the monthly rental and furnished it; that Mistletoe sent the lease agreement to the agent Wolfe and directed him to take it to the lessor for signature; that the phone was in its name and it paid therefor; that the agent owned, operated and maintained the delivery trucks, each of which had Mistletoe's name painted thereon; that it was the agent's duty to pick up and deliver all freight in the city of Norman shipped by Mistletoe; that agent Wolfe worked full time for Mistletoe, and his trucks were used for nothing else; that his duties were required by and were an integral part of Mistletoe's business; that he was employed subject to the will of either, each being able to terminate the employment on two weeks' notice; that his monthly pay was ten percent of the gross funds received by Mistletoe from the business done in Norman; that he was given an employee number, social security and income tax was withheld from his salary, and he was required to attend regular employee meetings; that he did not belong to the employees' union and did not participate in the retirement program; that the actual detail of making the deliveries was under his direction; that he was required to have two employees in the Norman office, a secretary and a truck driver, Mistletoe suggesting the amount of salary for each; that he was paid a subsidy of $375 per month with which to pay such salaries; that he considered himself an employee subject to the direction of Mistletoe with some leeway as to the carrying on of the actual details; that Mistletoe considered him a commission agent subject to its general control through the supervisors with the actual details to be worked out by him; that all advertising by Mistletoe indicated that the Norman branch office was operated by it through its agents, servants and employees; that when articles arrived at the Norman office it was his duty to deliver them to the person or firm designated.

Assuming that even though Mistletoe was a common carrier under the statutes 47 O.S.1951 § 170, and could perform its duties to the public through an independent contractor, still, when we consider the evidence in the light of the various elements to be considered in...