Moore-Handley Hardware Co. v. Williams, 6 Div. 406.

CourtAlabama Supreme Court
Writing for the CourtGARDNER, Justice.
Citation238 Ala. 189,189 So. 757
Decision Date18 May 1939
Docket Number6 Div. 406.
PartiesMOORE-HANDLEY HARDWARE CO. v. WILLIAMS.

189 So. 757

238 Ala. 189

MOORE-HANDLEY HARDWARE CO.
v.
WILLIAMS.

6 Div. 406.

Supreme Court of Alabama

May 18, 1939


Rehearing Denied June 22, 1939.

Appeal from Circuit Court, Jefferson County; C. B. Smith, Judge.

Action under homicide statute by J. W. Williams, as administrator of the estate of James Everett Mooskey, deceased, against the Moore-Handley Hardware Company. From a judgment for plaintiff, defendant appeals.

Affirmed. [189 So. 758]

London & Yancey and Fred G. Koenig, Sr., all of Birmingham, for appellant.

Clifford Emond, of Birmingham, for appellee.

GARDNER, Justice.

Suit by the administrator of the estate of James E. Mooskey, deceased, under the homicide statute, Code 1923, § 5696, to recover damages for the alleged negligence of the servant or agent of defendant, Moore-Handley Hardware Company, in and about the operation of an automobile on a public road, proximately resulting in the death of plaintiff's intestate, a pedestrian on the highway.

The automobile that struck Mooskey was owned by one McClinton, and operated by him at the time.

Upon the question of McClinton's negligence, as well as contributory negligence on the part of decedent, the testimony was in sharp conflict, and that these issues [189 So. 759] were properly submitted to the jury is not here controverted.

The defense in the main is rested upon the contention that McClinton was not the agent of defendant, but an independent contractor, and upon this issue much proof was taken.

Defendant, among other matters of merchandise, was engaged in the sale of radios, with an established place of business in the city of Birmingham. McClinton was one of defendant's radio salesmen, and at the time of the accident was on his way to the home of a customer, one Hotchkiss, to close the sale for a radio which he had delivered the day before for demonstration. The accident occurred the evening of December 10th and the sale was completed the day following, December 11th. Hotchkiss was a customer of defendant, and first met McClinton in the storeroom, where the latter displayed to him the radios and made arrangements to bring one to his home for better demonstration. McClinton and other salesmen were required to work on the floor of defendant's place of business one day a week selling its merchandise, with hours from 9 in the morning to 6 in the afternoon. Defendant had sales meetings each morning and the salesmen were notified to attend. At these meetings instructions were given in the mode of selling merchandise, describing it and putting it on the market, teaching the salesmen the technique to use. "We had a routine, a set rule, to go through with there, how to make a sale, about how to take the order, and write it up and submit it for approval. * * * There was a fixed method there of selling that merchandise on time. We had to go through certain prescribed rules and regulations that they had to sell merchandise on time. * * * They had to approve all sales." The salesmen had no fixed territory and were not liable for any default of the purchaser after the sale was approved. They were paid a commission on a sliding scale of ten per cent., and at the end of the month if a quota was made there was another two per cent., and if at the end of the year a quota was made there was another one per cent.

McClinton worked on this basis, with no salary and no fixed territory, and no definite requirement as to hours or days to work. At times he has delivered defendant's merchandise in his car, and the expense of ownership and operation of the car was his own. Defendant preferred salesmen with automobiles, but made no definite requirement in this respect. Defendant knew McClinton was using the car in his work as salesman, and there was evidence tending to show that at the time of the accident he had in the car a radio of defendant and its literature.

Defendant's manager testified as to the sales school each morning for instructing the salesmen as to the best procedure in handling a deal. "If they did not follow our prescribed rules and regulations or the suggestions that we made, it would be a matter of self preservation, would be the governing factor. He would eliminate himself, he would starve to death." And as to the use of automobiles, the manager said: "I don't remember whether at that particular time we required all our salesmen to have cars." McClinton was subject to be discharged by defendant at any time, and his employment was indefinite. Defendant would give him names of prospects and asked him to call on them, and told him what they were in the market for. "Sometimes they would tell us what kind they would like to sell to that particular one, in other words, they would suggest to us a particular kind they would like for us to sell that particular one." McClinton further testified: "Under this agreement with me they had a right to say whether I could sell this party or not. I went by what they wanted me to do in the procedure of selling their radios, I tried to conform to what they wanted me to do at all times. * * * They had a right to make suggestions and requests of me. * * * They gave us suggestions, when to call on them, and when the parties would be at home. * * * We made a list of our prospects that we had over there for our protection. They kept a list of all our prospects. * * * They had a right to fire me, yes."

It was one of the requirements made of McClinton that he represent no one other than defendant. He had a "schedule of terms and everything to go by," and was expected to observe those terms. Many details have been omitted, but what has been said should suffice as a general outline of McClinton's duties and his relation to the defendant, and the work he was engaged in at the time of this accident.

True some of the testimony of the manager, as well as McClinton, tended to show the relationship of an independent contractor. [189 So. 760]

Illustrative is the manager's statement that no requirement was made as to the method of travel, whether by automobile, bicycle, taxicab or otherwise, and there was no requirement that the salesmen attend the sales meetings, and that he did not at any time direct McClinton as to territory or where he should go, and nothing was contributed to the upkeep of McClinton's car. Some of McClinton's testimony was to like effect. But all of this testimony is to be considered in connection with the other, some of which we have herein quoted; and it must be kept in mind that the question we are now considering has relation to the matter of the general affirmative charge.

McClinton denied there was any radio in the car at the time of the accident, and his testimony tends to show in one particular that at times he did deliver merchandise for defendant. But more than one witness testified as to a radio and defendant's literature in the car when the accident occurred.

All of this was a matter for the jury's consideration. No isolated fraction of the evidence is to be considered as controlling, but all of it is to be taken into account and weighed by the jury. The jury was authorized to infer also that the salesmen were required to sell on the floor one day of every week, and it was on such a day that McClinton met Hotchkiss, which resulted in the sale of the radio and to whose house he was en route to close the sale when the accident occurred. And though McClinton and the manager indicate that the attendance at the sales meeting was not compulsory, yet we think the jury could infer that a salesman who ignored the meeting and persistently declined to go would not long remain a salesman. And though the car was that of McClinton, yet defendant knew it was being used unreservedly in the business; and we conclude from all the testimony that the jury might well infer McClinton was at least impliedly expected to use a car in the prosecution of the business, and if there was merchandise in the car belonging to defendant, it was for the jury to...

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51 practice notes
  • Ware v. Timmons, 1030488.
    • United States
    • Supreme Court of Alabama
    • May 5, 2006
    ...work will be performed ...." Martin v. Goodies Distrib., 695 So.2d 1175, 1177 (Ala.1997); see also Moore-Handley Hardware Co. v. Williams, 238 Ala. 189, 195, 189 So. 757, 762 (1939) (stating that the right-of-control test is used "`to determine whether in doubtful cases the relation between......
  • Johnson Pub. Co. v. Davis, 3 Div. 877
    • United States
    • Supreme Court of Alabama
    • August 18, 1960
    ...to an issue of the case, it may not be excluded from the jury because of possible prejudice. Moore-Handley Hardware Co. v. Williams, 238 Ala. 189, 189 So. XIV. The appellant insists that the court was in error in refusing a number of charges based on the theory that the complaint stated a j......
  • Ware v. Timmons, No. 1030488 (Ala. 9/22/2006), No. 1030488.
    • United States
    • Supreme Court of Alabama
    • September 22, 2006
    ...will be performed ...." Martin v. Goodies Distrib., 695 So. 2d 1175, 1177 (Ala. 1997); see also Moore-Handley Hardware Co. v. Williams, 238 Ala. 189, 195, 189 So. 757, 762 (1939) (stating that the right-of-control test is used "'to determine whether in doubtful cases the relation between a ......
  • Sims v. Struthers, 3 Div. 760
    • United States
    • Supreme Court of Alabama
    • April 25, 1957
    ...defendant's statement concerning liability insurance was 'an inseparable part of a statement.'); Moore-Handley Hardware Co. v. Williams, 238 Ala. 189, 189 So. 757, syl. 2 (if defendant's carriage of liability insurance has probative value on issue whether driver of auto was defendant's serv......
  • Request a trial to view additional results
51 cases
  • Ware v. Timmons, 1030488.
    • United States
    • Supreme Court of Alabama
    • May 5, 2006
    ...work will be performed ...." Martin v. Goodies Distrib., 695 So.2d 1175, 1177 (Ala.1997); see also Moore-Handley Hardware Co. v. Williams, 238 Ala. 189, 195, 189 So. 757, 762 (1939) (stating that the right-of-control test is used "`to determine whether in doubtful cases the relation between......
  • Johnson Pub. Co. v. Davis, 3 Div. 877
    • United States
    • Supreme Court of Alabama
    • August 18, 1960
    ...to an issue of the case, it may not be excluded from the jury because of possible prejudice. Moore-Handley Hardware Co. v. Williams, 238 Ala. 189, 189 So. XIV. The appellant insists that the court was in error in refusing a number of charges based on the theory that the complaint stated a j......
  • Ware v. Timmons, No. 1030488 (Ala. 9/22/2006), No. 1030488.
    • United States
    • Supreme Court of Alabama
    • September 22, 2006
    ...will be performed ...." Martin v. Goodies Distrib., 695 So. 2d 1175, 1177 (Ala. 1997); see also Moore-Handley Hardware Co. v. Williams, 238 Ala. 189, 195, 189 So. 757, 762 (1939) (stating that the right-of-control test is used "'to determine whether in doubtful cases the relation between a ......
  • Sims v. Struthers, 3 Div. 760
    • United States
    • Supreme Court of Alabama
    • April 25, 1957
    ...defendant's statement concerning liability insurance was 'an inseparable part of a statement.'); Moore-Handley Hardware Co. v. Williams, 238 Ala. 189, 189 So. 757, syl. 2 (if defendant's carriage of liability insurance has probative value on issue whether driver of auto was defendant's serv......
  • Request a trial to view additional results

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