Tex. Co v. Zeigler

• Decision Date: 21 April 1941
• Citation: 14 S.E.2d 704
• Court: Virginia Supreme Court
• Parties: TEXAS CO. et al. v. ZEIGLER.

14 S.E.2d 704

TEXAS CO. et al.

v.ZEIGLER.

Supreme Court of Appeals of Virginia.

April 21, 1941.

Rehearing Denied June 10, 1941.

Error to Circuit Court, Tazewell County; A. C. Buchanan, Judge.

Action by M. Zeigler, administrator of the estate of Otis E. Zeigler, against the Texas Company and others for the death of plaintiff's intestate in a collision between an automobile and a truck. From a judgment for plaintiff, defendants bring error.

Affirmed.

Argued before HOLT, HUDGINS, BROWNING, EGGLESTON, and SPRATLEY, JJ.

George C. Peery, of Tazewell, S. L. Sinnott and V. P. Randolph, Jr., both of Richmond, and A. S. Higginbotham and Smith & Peery, all of Tazewell, for plaintiffs in error.

Crockett & Gillespie, of Tazewell, for defendant in error.

BROWNING, Justice.

This was an action for damages for the death of Otis E. Zeigler, a youth of seventeen, occasioned by a collision between an automobile, in which the plaintiff's decedent was riding, and a gasoline truck, belonging to C. R. Moss, the local distributor for the Texas Company. It was at night and it was dark and misting. The truck was being driven at the time of the accident, February 14, 1939, by Frank J. Moss, brother of C. R. Moss, who employed him as a truck driver. The automobile was being driven by a youth named Eddie Jewell. There were six occupants of the automobile, four of whom were killed, including the driver. The two who survived were asleep on the rear seat at the time. They knew nothing of the incidents of the accident and therefore their testimony could throw no light upon it. The driver of the truck died before the trial of causes unconnected with the accident.

There were two witnesses who testified that they saw the collision. Their testimony was conflicting. One was a state employee, who was driving an auto-mobile in an easterly direction opposite to that of the truck which was involved. He testified very positively that the truck was on the wrong side of the road as it turned the curve where the collision occurred, and that the Jewell automobile was on its right side. There was testimony that the lights of the truck were not changed and that they blinded the driver of the Jewell car. The physical facts tended to prove that the truck driver was negligent in the operation of the truck. We may say that there was evidence of a credible nature quite sufficient to make the question of negligence one for the jury.

It returned a verdict in favor of the plaintiff which was confirmed by the court. With it we cannot interfere. In fact, we think it was fully justified by the evidence. The granting of several instructions was made the bases of error by exceptions upon the grounds that there was no evidence upon which to found them. With this we are not in accord. There was ample evidence for this purpose.

This case really depends upon the determination of the question whether the employee of the Texas Company, Charles R. Moss, was an independent contractor in his relationship to the company, or was its servant in the relationship of master and servant, or its agent in the relationship of principal and agent. Whichever of the two latter relationships may obtain, the legal effect is the same, in contradistinction to that of the relationship of independent contractor. The question has risen in similar cases in this court and in the courts of many other jurisdictions, including that of the United States. To say that there is not a conflict of authority would be withholding frankness. We are safe, however, in saying that the decided weight of authority is that an employee who performs services under circumstances like those obtaining here occupies to his employer the relationship of servant or agent, and the employer is liable for the consequences of his acts of negligence.

The pertinent parts of the contract with which we are concerned, and which we take from the able opinion of the learned trial judge, are, in epitome, these:

"Date: June 15, 1937.

"The parties are The Texas Company, called consignor, and C. R. Moss, called consignee.

"Consignee agrees to:

"1. Diligently market and distribute petoleum products supplied by consignor;

"2. Promptly and accurately account, on forms provided by consignor, for all consignor's moneys, goods, equipment, etc.;

"3. Sell consignor's products for cash, or on properly authorized credit, and to be liable for any sum due on an account opened without authority, and for all sums in excess of the credit maximum on any account;

"4. Not to sell at less than consignor's authorized price, nor to enter into any secret agreement to reduce the price or control business;

"6. Bear all expenses, except certain freight and taxes, of the proper operation of the station covered by the agreement;

"7. At his expense to furnish trucks and other equipment required for the distribution of products, and conforming to consignor's standards;

"8. Hire and pay the wages of all assistants and employees required for the proper and diligent operation of said station, assume full direction and control over them and responsibility for them, and to indemnify consignor against all property damage and personal injury caused by the acts of the consignee, his assistants or employees;

"9. Give bond to properly account for money and property of consignor;

"10. Not assign the agreement without prior written consent of consignor;

"11. Pay indebtedness due consignor at Norfolk, Virginia.

"Consignor shall:

"1. Have the right to withhold commissions to cover consignee's indebtedness;

"2. In event of termination of the agreement, have the right for three months, to make certain use of consignee's storage facilities;

"3. Pay freight on products shipped, and taxes on consignor's merchandise, stock and equipment;

"4. Pay consignee certain stated commissions.

"It is stipulated that:

"1. At the close of each month, and at the termination of the agreement, consignor shall withhold from consignee's commissions 10% of Accounts Receivable A, and pay the consignee the balance plus the 10% withheld at the close of the preceding month, less deductions provided for in the agreement. In the event of termination of the contract consignor is not obligated to pay consignee any amount withheld in accordance with this provision, or commissions on any uncollected sales. Accounts Receivable A are accounts less than four months overdue;

"2. Title to all products remains in consignor until sale by consignee in accordance with this agreement;

"3. Consignee accepts exclusive liability for workmen's compensation insurance, unemployment insurance, old age pensions, annuities and retirement benefits imposed by federal or state laws, which are measured by compensation paid to persons employed by consignee.

"4. In event of termination of agreement by either party, consignee shall not engage in similar business within 50 miles of Richlands for five years.

"5. The agreement continues in. force until it is terminated by either party on five days' written notice."

The facts bearing upon this question are very concisely and clearly stated in the opinion referred to, and we quote them:

"The oral evidence shows that C. R. Moss owned the truck involved in the collision, on the sides of which, and on the front end of the cab, appeared the word 'Texaco, ' and on the panel boards were the words 'The Texas Company C. R. Moss, Consignee.' The gas station was on property leased by the Texas Company. The telephone was in the name of The Texas Company, but paid for by C. R. Moss, and the Texas Company pays the merchant's license tax on the business. The company approves all accounts and fixes the price of the products sold. On cash sales the truck drivers usually collected and gave a receipted invoice, on a printed form, signed by The Texas Company by --. In this blank was inserted the name of C. R. Moss, by the driver, on the printed form introduced only one blank appears to be signed after the name of The Texas Company. When Frank J. Moss made sales, he would sign in this blank space the name of C. R. Moss, by Frank J. Moss, so the completed invoice would be signed The Texas Company, by C. R. Moss, by Frank J. Moss. Two copies of this invoice were sent to the company twice a week with the report of sales, and the company knew that C. R. Moss was employing Frank J. Moss to deliver gasoline, and C. R. Moss testified that the company accepted the services of his brother in that way.

"The charge accounts were written in the name of The Texas Company and were collected by C. R. Moss, and he deposited the cash and account collections and remitted to the company at Norfolk by draft twice a week. All checks were payable to The Texas Company and the company furnished him a stamp to endorse the checks, and he endorsed the company's name on the checks with the stamp.

"C. R. Moss owned the storage tanks at the plant, and they were lettered 'Texaco' on the railroad side, and on each end is placed the company's trade mark or emblem. The company delivers the oil and gasoline to a point on the railroad track and Mr. Moss pumped it into his storage tanks at his expense.

"C. R. Moss employed the truck drivers and paid them. He testified that the company had no right to control the movements of the trucks, or the wages he paid to the drivers, or their hours of work; that it was understood with Frank J. Moss that he was employed as C. R. Moss' employee.

"On these facts the defendant contends that C. R. Moss was an independent contractor, for whose negligence and for the negligence of whose assistants or employes, the company is not liable; while the plaintiff contends that the relation of master and servant is established."

This court has quite recently had occasion to consider this question, and it has emphasized the importance of the right of control of the employee in the performance of the duties to which he has engaged himself as a test of what his relation to his employer is. We must remember that the inquiry is...