Newspapers, Inc. v. Love

• Decision Date: 04 March 1964
• Docket Number: No. A-9629,A-9629
• Citation: 380 S.W.2d 582
• Parties: NEWSPAPERS, INC., Petitioner, v. Gerald Witt LOVE et al., Respondents.
• Court: Texas Supreme Court

Page 582

380 S.W.2d 582

NEWSPAPERS, INC., Petitioner, v. Gerald Witt LOVE et al., Respondents.

No. A-9629.

Supreme Court of Texas.

March 4, 1964.

Dissenting Opinion March 11, 1964.

Rehearing Denied June 24, 1964.

Gay & Meyers, Austin, for petitioner.

Byrd, Davis & Eisenberg, Austin, for respondents.

NORVELL, Justice.

The crucial issue in this case is whether the relationship of C. E. Cargile to Newspapers, Inc. was that of a servant or an independent contractor. The trial court rendered judgment upon jury findings in favor of Gerald Witt Love et al., the plaintiffs in the district court, and against Newspapers, Inc. upon the theory that Cargile was the servant of Newspapers, Inc. and his negligence was one of the proximate causes of plaintiffs' injuries sustained in a wreck in which automobiles driven by Otis Franklin and by Gerald Witt Love and a pickup truck driven by C. E. Cargile were involved. This judgment was affirmed by the Court of Civil Appeals. 367 S.W.2d 185.

In the trial petition it was alleged that prior to and at the time of the collision Cargile 'was an authorized agent, servant or employee of Newspapers, Incorporated, and he was then acting for and on behalf of Newspapers, Incorporated, and within the scope of his employment or within the authority delegated to him by Newspapers, Incorporated.'

The evidence shows that Cargile was employed by Newspapers, Inc. as publisher under a written contract which constituted Cargile an independent contractor in distributing the newspapers published by petitioner. ¹ The allegations of the petition above set out were sufficient to admit evidence tending to show this written contract was intended as a subterfuge by the contracting parties or that it had been abandoned by them. ² Such evidence was adduced as hereinafter pointed out, so that the complaint that there was no evidence that the written contract between the parties was inoperative and not controlling must be overruled. Humble Oil & Refining Co. v. Martin (1949), 148 Tex. 175, 222 S.W.2d 995.

We are, however, of the opinion that in view of the evidence adduced upon the trial the independent contractor or servant issue was improperly submitted to the jury and accordingly the judgment against Newspapers, Inc. must be reversed and the cause as to the petitioner remanded for another trial. ³

Special Issue No. 1 which embodied respondents' master-servant theory was answered by the jury in the affirmative. This issue read as follows:

'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?' (Italics added)

Special Issue No. 2 was an inferential rebuttal issue embodying petitioner's theory that Cargile was an independent contractor. The jury answered that, 'He (Cargile) was not an independent contractor.' This issue and the accompanying definition read as follows:

'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? * * *

'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 contract of such other person in the details of such work, except as to the result of the work.'

Cargile's relationship to Newspapers, Inc. was either that of a servant or that of an independent contractor. This was a controlling point in the case and the jury must have understood that it was. Any error relating to the submission of the masterservant theory would consequently affect the independent contractor issue. It can hardly be maintained that a judgment could be supported by an unfavorable answer to an inferential rebuttal issue when the primary issue upon which a party must depend for a recovery is improperly and prejudicially stated.

Petitioners objected to the submission of Special Issue No. 1 because of the use of the words 'retained or exercised' and asserted that, 'the true test is whether or not the alleged employer has the power (right) to control and the usurpation of such power does not make the relationship one of employer and employee.'

There are cases which speak of the right of control or exercise of control of the details of the work as being the test of the existence of a master-servant relationship. As indicated by the Court of Civil Appeals, the case of King v Galloway, tex.Com.App., (1926) 284 S.W. 942, relied on by petitioner, quotes a definition from Street on Personal Injuries, §§ 11 and 12 which embodies the words 'retains or exercises the power of control,' but the actual holding of the case is embodied in the following quotation:

'In the first place, it must be borne in mind that on the question of control, the test is not the exercise thereof, but the right to exercise such control. In this connection, we quote from Labatt, p. 240, 19 A.L.R., as follows:

'In every case which turns upon the nature of the relationship between the employer and the person employed, the essential question to be determined is not whether the former actually exercised control over the details of the work, but whether he had a right to exercise that control."

The A.L.R. note referred to by Judge Powell in the Commission's opinion was prepared by C. B. Labatt, the author of the 'Commentaries on the Law of Master and Servant', and the cases cited in the monograph generally support the proposition that it is the right of control rather than the exercise thereof that determines the masterservant relationship. See, Annotation-'General discussion of the nature of the relationship of employer and independent contractor,' 19 A.L.R. 226, 1. c. 240, § 7.

In Standard Insurance Company v. McKee (1947), 146 Tex. 183, 205 S.W.2d 362, Mr. Justice Smedley, writing for this Court, said:

'The record contains evidence of elements bearing upon the relation between respondent and the oil company from which it could reasonably be inferred that respondent continued to be an independent contractor during the time when the well was being finished. We believe, however, that the solution of the question presented in this case is correctly reached by the application of the test of right of control, which, according to our decisions and most of the modern cases, is used as the supreme test. Ochoa v. Winerich Motor Sales Co., 127 Tex. 542, 94 S.W.2d 416; Blankenship v. Royal Indemnity Co., 128 Tex. 26, 95 S.W.2d 366; Southern Underwriters v. Samanie, 137 Tex. 531, 155 S.W.2d 359; Industrial Indemnity Exchange v. Southard, 138 Tex. 531, 160 S.W.2d 905; Dennis v. Texas Employers' Ins. Ass'n, Tex.Civ.App., 116 S.W.2d 492; Khoury v. Edison Electric Illuminating Co., 265 Mass. 236, 164 N.E. 77, 60 A.L.R. 1159; Northwestern Mutual Life Ins. Co. v. Tone, 125 Conn. 183, 4 A.2d 640, 121 A.L.R. 993; 27 Am.Jur., p. 486, Sec. 6.' (Italics added)

The 'right of control' and 'the exercise of control' (or the exercise of the power of control) are two separeate concepts. Following the pattern suggested by Special Issue No. 1, we could by separate questions inquire (a) if the relationship between Cargile and Newspapers, Inc. was such that Newspapers, Inc. retained the power to control, etc., and (b) if the relationship between Cargile and Newspapers, Inc. was such that Newspapers, Inc. exercised the power to control, etc. We may accept the theory that the evidence received from the witnesses, Behrman and Wheeless was admissible in connection with the statement attributed to Phil Granath, (hereinafter mentioned), to show that the terms of the written contract were not intended to control the relationship beween Newspapers, Inc. and its distributors. This evidence would, however, have to be related to the theory of 'right of control,' i. e., whether the written contract was a subterfuge or had been superseded by a subsequent agreement which controlled the relationship of the parties. When, however, we turn to the concept of 'exercise of control,' it should be pointed out that neither Behrman nor Wheeless testified to any exercise of control by Newspapers, Inc. over Cargile. Cargile's deposition was taken before petitioner was made a party to this suit; consequently he was not subject to examination by Newspapers, Inc. However, the statements of Cargile in this deposition relate to his opinions or conclusions as to the relationship between him and Newspapers, Inc. and not to any definite or specific acts of control exercised by Newspapers, Inc. over Cargile's actions other than such as were consistent with an independent contractor relationship such as directing when Cargile should pick up his papers and when he should deliver them.

We, therefore have an issue which the jury could have answered in the affirmative if they believed petitioner exercised control over Cargile as to the details of the work, yet there is no competent evidence that such control was actually exercised by Newspapers, Inc. As above pointed out, the 'right of control' is an entirely different concept.

All the evidence relating to incidents of actual exercise of control of the details of the work by Newspapers, Inc. to relate to control exercised over F. V. Wheeless and Mayes Behrman, former distributors for Newspapers, Inc. They are referred to as district circulation managers. This designation is also used with reference to Cargile, although Newspapers, Inc. seems to prefer the term of 'route carrier.' It was the position of Newspapers, Inc. and the testimony of its City Circulation Manager, Phil Granath, that all district...