Solmica of Gulf Coast, Inc. v. Braggs, 1 Div. 549

• Decision Date: 05 February 1970
• Docket Number: 1 Div. 549
• Citation: 285 Ala. 396,232 So.2d 638
• Parties: SOLMICA OF The GULF COAST, INC. v. Louise BRAGGS, as Administratrix Of The Estate of Elaine Loretta Braggs, Deceased.
• Court: Alabama Supreme Court

Page 638

232 So.2d 638

285 Ala. 396

SOLMICA OF The GULF COAST, INC. v. Louise BRAGGS, as Administratrix Of The Estate of Elaine Loretta Braggs, Deceased.

1 Div. 549.

Supreme Court of Alabama.

Feb. 5, 1970.

Rehearing Denied March 19, 1970.

Inge, Twitty, Duffy & Prince, Mobile, for appellant.

Cunningham, Bounds & Byrd, Mobile, for appellee.

MADDOX, Justice.

The sole issue in this case is whether or not at the time John Edward Cornelson ran over and killed Elaine Loretta Braggs, he was an agent, servant, or employee, acting within the line and scope of his authority as such in furtherance of the business of Solmica of the Gulf Coast.

There is agreement on the statement of the case. There is obvious disagreement over the refusal of the trial court to give the affirmative charge in favor of the appellant. The appellant assigns the refusal to give the affirmative charge as error.

The suit was brought by Louise Braggs, as Administratrix of the estate of Elaine Loretta Braggs, claiming $135,000 damages for the death of her intestate, caused by John Edward Cornelson in the operation of his pickup truck.

The case was tried and submitted to a jury which returned a verdict for the plaintiff and against the defendants in the amount of $30,000. A motion for a new trial was overruled.

To recover against a defendant upon the theory of Respondent superior, it is necessary for the plaintiff to establish the status of master and servant and that the act done was within the scope of the servant's employment. United States Steel Co. v. Butler, 260 Ala. 190, 69 So.2d 685.

It is the reserved right of control rather than its actual exercise that furnishes the true test of whether the relation between the parties is that of an independent contractor or of employer and employee--master and servant. Moore-Hanley Hardware Co v. Williams, 238 Ala. 189, 189 So. 757.

For one to be an employee, the other party must retain the right to direct the manner in which the business shall be done, as well as the results to be accomplished, or, in other words, not only what shall be done, but how it shall be done. Weeks v. C. L. Dickert Lumber Co., 270 Ala. 713, 121 So.2d 894 and cases there cited.

Because this is a close case we set out considerable evidence. The evidence showed that Solmica made contracts with individual homeowners for the application of aluminum siding of their houses. Cornelson was an applicator and was paid $15.00 per square for the application of the siding and $1.00 per square for transportation expense up to 50 miles, and $2.00 per square for mileage up to 100 miles. Cornelson furnished his own truck to haul the material to the job site. He secured such additional help as he needed to apply the siding and when he got a job he would estimate how long he thought it would take to complete it; then he would select the men to do the job with him and he would make an arrangement with these helpers as to the amount they would be paid. Solmica was aware of the act that applicators got others to assist them, but the $15.00 per square rate was the same, regardless of what arrangement an applicator might otherwise make. No social security or withholding was deducted by Solmica, but Solmica did deduct 4% Of the gross sum paid to applicators for 'insurance.' What kind of insurance was never shown.

The accident happened around 6:30 or 6:40 P.M. on July 1, 1965. On the morning of July 1, Cornelson and the men working for him--a Mr. Howell, a Mr. Coffee and his brother, Kenneth Cornelson, went to the Solmica office in Coffee's automobile shortly before 8:00 A.M. They left Solmica's office at about 9:30 A.M. after getting the job assignment in Pascagoula, Mississippi, from a Solmica employee. They went to Pascagoula and left the job site at approximately 3:30 P.M. and started back to Mobile. On the way back they stopped while Cornelson's brother-in-law bought a 'couple of beers' and Cornelson had a 'sip' of beer himself. They arrived at Cornelson's house in Mobile at about 4:30 or 5:00 P.M., and Coffee and Howell separated from Cornelson there. Cornelson changed clothes and took his brother Kenneth to their mother's house in his pickup truck. From 4:30 to 5:45 P.M. he had four drinks. He was drinking bourbon straight out of the bottle. He left his mother's house at about 5:45 P.M.

Cornelson testified that normal working hours for Solmica were 8:00 A.M. to 4:00 P.M., but that it was customary to be able to pick up materials after working hours if such materials were needed for a particular job.

When Cornelson left his mother's house he stopped for gas and the accident occurred shortly thereafter on Stone Street in Mobile. Police officers investigating the accident testified that Cornelson passed out in the police car after his arrest and that a pint bottle of whiskey found in the pickup truck was about half full. One of the investigating officers testified that 'later in the afternoon' and while interrogating Cornelson about the events leading up to the accident, in answer to a question relative to where he was going, 'He said that he didn't know--that he was probably going to his office.' We set out some of the evidence with regard to the Solmica-Cornelson arrangement in a footnote below. ¹

We not come to some of the tendencies of the evidence favorable to the plaintiff. Solmica told Cornelson what supplies to take to a job, instructed that any supplies that were left over after a job were to be returned to it, would send him back to remedy a job when a customer was not satisfied, would not pay him until the customer was satisfied, solicited the jobs he worked on and assigned him to the job, could pull him off a job at any time it wanted to, furnished all the necessary material for the job, allowed him to charge additional materials needed to its account, withheld four percent of his gross wages for insurance, occasionally had him perform in their office or warehouse and had him deliver materials to his own job and other jobs on which others were working.

The manager of Solmica testified that he instructed Cornelson and the other applicators as to the way he wanted the siding applied and from time to time he checked their jobs and, if the work was not done correctly, he either instructed them to change the type of work they were doing or dismiss the applicator or fired him from the job, and that he had required them to redo work.

In view of our scintilla rule, there was sufficient evidence from which the jury could find that the relationship between Solmica and Cornelson was that of master and servant.

Appellant states in brief:

'* * * It really makes no difference for argument purposes whether John Edward Cornelson was an employee of Solmica of the Gulf Coast or whether he was simply an independent contractor. * * * The issue in this case is whether or not, at the time John Edward Cornelson ran over and killed Elaine Loretta Braggs, he was an agent, servant or employee, acting within the line and scope of his authority as such, in furtherance of the business of Solmica of the Gulf Coast.'

Having determined that he was the agent of appellant, the question to be decided is whether Cornelson was acting within the line and scope of his authority in furtherance of the business of Solmica when the accident occurred.

The rule has many times been stated in our cases in varying language. Boiled down it is: To authorize the submission of the question ot the jury, the evidence must have a tendency either directly or by reasonable inference to show that the wrong was committed by the agent while he was executing his agency, that is, undertaking to execute the duties assigned to him and not from a motive or purpose of his own having no relation to the business of the master. If the evidence tends to establish that the act was an incident to carrying out the duties assigned to him by his master, the master may be held liable though he did not authorize the agent to resort to such means in rendering the services for which he was employed and also though the agent may have sought to accomplish the master's business by improper or unlawful means or in a way unknown to his master or even contrary to his express directions. The legal aspect of such a case is not changed because the agent superadds malice or other improper motive to his otherwise wrongful act. United States Steel Co. v. Butler, 260 Ala. 190, 69 So.2d 685, and cases there...