Newspapers, Inc. v. Love

• Decision Date: 03 April 1963
• Docket Number: No. 11038,11038
• Parties: NEWSPAPERS, INC., Appellant, v. Gerald Witt LOVE et al., Appellees.
• Court: Texas Court of Appeals

Page 185

367 S.W.2d 185

NEWSPAPERS, INC., Appellant, v. Gerald Witt LOVE et al., Appellees.

No. 11038.

Court of Civil Appeals of Texas, Austin.

April 3, 1963.

Rehearing Denied April 24, 1963.

Gay & Meyers, Austin, for appellant.

Byrd, Davis & Eisenberg, Austin, for appellee.

HUGHES, Justice.

Gerald Witt Love and wife, Edna Patsy Love, residents of Corpus Christi, Texas, sued for themselves and Mr. Love sued as next fried for his daughters Patsy Dolores Love, age 8 years, Connie Gail Love, age nine months, his son, Jerry Dan Love, age 5, and also in behalf of his wife to recover damages for personal injuries sustained by himself and by the other named members of his family and for damages for the death of his son, Dan Allen Love, age 6 years, sustained as a result of a collision between a pickup truck being driven by Mr. Love and a Buick passenger car being driven by Otis Franklin. The collision occurred about 5:45 a. m., April 11, 1959, in the 800 block of the Bastrop Highway within the city limits of Austin, Texas.

Named as defendants in the suit were Otis Franklin, Curren Eugene Cargile and Newspapers, Inc. Mr. Cargile was sought to be held liable on the ground that his negligent operation of a jeep was a proximate cause of the collision between the Love and Franklin cars. Newspapers, Inc. was alleged to be the employer of Cargile, and its liability is sought to be established under the doctrine of respondeat superior.

Trial was to a jury. Verdict and judgment on the verdict was in favor of appellees and against all defendants. Newspapers, Inc., only, appeals.

Appellant's first and second Points are that the Court erred in holding that there was any evidence to support a finding that Cargile was its agent or, conversely, that there was any evidence to support a finding that Cargile was not an independent contractor.

The following issues were submitted to and answered by the jury as follows:

'SPECIAL ISSUE NO. 1:

'At the time and on the occasion in question, do you find from a preponderance of the evidence that the relationship between C. E. Cargile and Newspapers, Inc., was such that Newspapers, Inc., retained or exercised the power to control, not merely the end sought to be accomplished, but also the means and details of its accomplishment, not merely what should be done, but how and when it shall be done?

'Answer this special issue 'Yes' or 'No.'

'Answer: Yes

'SPECIAL ISSUE NO. 2:

'At the time and on the occasion in question, do you find from a preponderance of the evidence that C. E. Cargile was not an independent contractor within the meaning of the following definition?

'Answer this special issue 'He was not an independent contractor' or 'He was an independent contractor.'

'Answer: He was not an independent contractor.

'You are instructed that the term 'independent contractor,' as used in the foregoing special issue, means a person who undertakes to do work for another person, using his own means and methods, without submitting himself to the control of such other person in the details of such work, except as to the result of the work.'

The rule to be applied in determining these points is that "[i]f, discarding all adverse evidence and giving credit to all evidence favorable to the plaintiff and indulging every legitimate conclusion favorable to the plaintiff which might have been drawn from the facts proved, a jury might have found in favor of the plaintiff'--then there was evidence to support their verdict.' Pickens v. Harrison, 151 Tex. 562, 252 S.W.2d 575.

Newspapers, Inc. publishes the Austin American and Austin Statesman newspapers in Austin, Texas. Mr. Cargile has for many years personally distributed these papers to purchasers living in a section of southeast Austin. He was so engaged at the time of the collision in suit. He had a written contract with Newspapers, Inc. at such time which designated the parties as 'Publisher' and 'Independent Contractor,' respectively. It provided for sale by the publisher of its papers and purchase by Cargile of such papers as he might require for 'resale and delivery' in a prescribed area. Mr. Cargile was obligated to 'exercise his best efforts to promote and establish circulation of such newspapers within such territory.' Payment for papers purchased was to be made on or before the tenth of the following month, 'such payment shall be made on the basis of the rate agreement in effect between the Publisher and the Independent Contractor during the month for which such payment is made at' rates specified. In addition, we quote these provisions of the contract:

'Publisher will act as agent for Independent Contractor in receiving payments tendered to it for paid-in-advance subscriptions for newspapers to be delivered within the territory covered by this agreement. Publisher will remit such payments to Independent Contractor on a monthly pro-rata until each paid-in-advance subscription expires.

'3. Independent Contractor will furnish to the Publisher at any time, upon request, a full and complete written list of names and addresses of all persons, firms and corporations to whom newspapers purchased under this agreement are delivered.

'4. Independent Contractor will provide, at his own expense, such transportation and assistance as he may need to perform his agreements hereunder. Independent contractor shall have the exclusive right, power and authority to manage and control his employees, and to direct the details of the work performed by them. Publisher shall not have any right, power or authority to manage or control the details of the work to be done by the Independent Contractor or his employees.

'Publisher shall be interested only in the satisfactory results to be accomplished by the Independent Contractor under this agreement, and shall have no control over the manner, means and methods by which such results are accomplished.

'5. This is a personal contract and neither party hereto may alter, sell, transfer, pledge or assign same without first obtaining written consent of the other party. No verbal agreement shall alter the terms of this contract.

'6. This agreement may be terminated by either party hereto, by giving ten days written notice to the other party, of his desire to terminate this agreement.'

The evidence is undisputed that Mr. Cargile was not paid a salary by appellant. His compensation came from selling papers for more than their cost. No monies for income taxes were withheld by appellant on his account. Appellant carried no Workmen's Compensation Insurance for the benefit of Mr. Cargile and no contributions for unemployment insurance were made by appellant in his behalf.

Mr. Cargile owned the jeep used by him in delivering papers, and he paid all of its operating expenses.

Mr. P. F. Fincher, General Circulation Manager for appellant, and Mr. Phil Granath, City Circulation Manager, both testified that they exercised over Mr. Cargile no control beyond the terms of the contract with him.

There are many details, however, reflected by the record, not specifically mentioned in the contract, which relate to the manner in which appellant supervised and controlled its district managers. Before reciting the evidence as to these matters it is proper, we believe, to determine the effect of the contract between appellant and Mr. Cargile and the admissibility of evidence of other persons who held, at one time, contracts with appellant similar to the one under which Mr. Cargile worked, as to actual control exercised by appellant of the detailed manner in which they performed the services covered by the contract. These matters are presented by appellant's Points 3-6, inclusive.

The contract cannot be given conclusive effect, Humble Oil and Refining Co v. Martin, 148 Tex. 175, 222 S.W.2d 995. from which we quote the language of Associate Justice Garwood who wrote for the Court:

'We think the Court of Civil Appeals properly held Humble responsible for the operation of the station, which admittedly it owned, as it did also the principal products there sold by Schneider under the so-called 'Commission Agency Agreement' between him and Humble which was in evidence. The facts that neither Humble, Schneider nor the station employees considered Humble as an employer or master; that the employees were paid and directed by Schneider individually as their 'boss', and that a provision of the agreement expressly repudiates any authority of Humble over the employees, are not conclusive against the master-servant relationship, since there is other evidence bearing on the right or power of Humble to control the details of the station work as regards Schneider himself and therefore as to employees which it was expressly contemplated that he would hire. The question is ordinarily one of fact, and where there are items of evidence indicating a master-servant relationship, contrary items such as those above mentioned cannot be given conclusive effect.'

To the same effect is Gulf Refining Co. v. Rogers, 57 S.W.2d 183, Waco Civil Appeals, writ dismissed, opinion by Justice Alexander, from which we quote:

'Even though the contract as originally entered into nominally created the relationship of employer and independent contractor, yet if such contract was a subterfuge, or if the employer thereafter assumed and actually exercised control over the means and methods by which the work was to be performed, the relation of master and servant existed between it and Russell and his employees, and the mere fact that the contract as written was so drawn for the purpose of creating the relation of independent contractor would not relieve the company of liability for the negligence of such servants.'

Similarly in Elder v. Aetna Cas. & Surety Co., 149 Tex. 620, 236 S.W.2d 611, the Court, Associate Justice Brewster writing, stated:

'But petitioner contends that the insured used the contract as a mere cloak to exercise such control over him in the details of...