Texas Co. v. Brice

• Decision Date: 18 May 1928
• Docket Number: No. 4909.,4909.
• Court: U.S. Court of Appeals — Sixth Circuit
• Parties: TEXAS CO. v. BRICE.

26 F.2d 164 (1928)

TEXAS CO. v. BRICE.

No. 4909.

Circuit Court of Appeals, Sixth Circuit.

May 18, 1928.

John B. Keeble, of Nashville, Tenn. (J. M. Anderson, of Nashville, Tenn., on the brief), for plaintiff in error.

W. H. Washington and Seth M. Walker, both of Memphis, Tenn. (Thomas N. Greer, of Shelbyville, Tenn., on the brief), for defendant in error.

Before DENISON and MOORMAN, Circuit Judges, and TUTTLE, District Judge.

TUTTLE, District Judge.

This is an action by the defendant in error, plaintiff in the court below (hereinafter called the plaintiff), a resident citizen of Tennessee, as administratrix of the estate of her husband, Mason M. Brice, deceased, to recover from the plaintiff in error, defendant below (hereinafter called the defendant), a Texas corporation, damages for the alleged negligent killing of said deceased by said defendant, through the negligence of an alleged agent or servant of the defendant.

It is undisputed that the death of plaintiff's decedent, which occurred while he was acting as fireman in the cab of a fast passenger train locomotive, resulted from injuries received in a collision between said train and a motortruck, carrying several hundred gallons of gasoline and oil, operated by a driver claimed to have been the representative of the defendant, and that such collision was caused by the negligence of said driver. The only disputed question involved was, and is, whether the defendant is liable for such negligence. At the conclusion of the proofs, the defendant made a motion for a directed verdict in its favor, on the ground that there was no evidence tending to show the existence of such relation between the defendant and said driver as would make the former liable for the negligence of the latter. The trial judge denied this motion, and submitted this question of liability to the jury, which returned a verdict for the plaintiff in the sum of $32,000, and, to review the judgment entered on such verdict, the defendant has duly brought the case to this court by writ of error.

The first assignment of error is based on the refusal of the trial court, to which exception was duly taken by the defendant, to direct a verdict for the defendant on the ground just mentioned. With respect to the subject-matter of this assignment, the evidence, viewed, as it must be, in the light most favorable to the plaintiff, showed the following material facts:

In July, 1925, defendant was engaged in selling gasoline and oil in various parts of the United States, including the state of Tennessee, through local oil depots in charge of selling agents, of whom it had two classes — so-called salaried agents, receiving a fixed, regular salary, and so-called commission agents, receiving a commission dependent on the amount of sales made by them. Both classes of such agents were subject to general supervision and control by the defendant, the salaried agents to a somewhat greater extent than the commission agents, and both had, with the knowledge and consent of the defendant, servants assisting them, including the drivers of motortrucks used in delivering the gasoline and oil so sold. These drivers and other servants were employed, discharged, paid, and directly controlled, in connection with the salaried agents, by the defendant, and, with respect to the commission agents, by such commission agents themselves, although even as to the latter agents the defendant prescribed certain conditions and requirements to be observed by such commission agents in their regulation of their own servants. On July 6, 1925, the defendant made a written contract with one Hutton, by which he was appointed its commission agent for the sale of its products in the town of Shelbyville, in Tennessee. The only language in such contract which related to the employment of agents or servants to assist Hutton was contained in the following provision thereof: "If a commission agent, you will accept full responsibility for, and indemnify the company against, all acts or omissions of your agents, employees, and servants." Hutton employed a helper, one Nelson, to assist him about the oil station and to drive a motortruck owned by Hutton and used by him in delivering the defendant's products which he sold. Nelson was hired, paid, and directed by Hutton alone, and the defendant took no part in employing, paying, or directing him, although it knew of, and consented to, his employment by Hutton. The truck referred to was owned by Hutton, although the name and trade-mark of the defendant had been painted on its sides, as well as on the oil station and the tanks and other equipment used in connection therewith. The current state motor license of the truck had been paid for by Hutton individually, but issued in the name of defendant, at the request (not shown to have been authorized by defendant) of an employee of Hutton. The defendant had paid for, and held, the current state privilege licenses required for the operation of the oil depot. On July 17, 1925, while Nelson was driving the truck along the public highway, to deliver a quantity of gasoline which had been ordered by a customer, but which still belonged to defendant, he negligently (as the jury on sufficient evidence determined) drove such truck upon a railroad track in front of the rapidly approaching train already mentioned, with the aforementioned results.

We think it unnecessary to decide or consider whether Hutton was, as to the defendant, an agent, as claimed by plaintiff, or an independent contractor, as claimed by the defendant, although, of course, the question of defendant's status as against this particular claim is not to be controlled by any matter of nomenclature. Assuming, as we may do for the purposes of this opinion, that his relation to the defendant was that of an agent to a principal, it by no means follows that the relation between his employee, whose negligence caused the death of the plaintiff's decedent, and the defendant, was such as to make the defendant liable for such negligence. The test as to such liability must, of course, be whether the defendant either expressly or impliedly authorized Hutton to employ this driver as the agent or servant of the defendant. We have searched the entire record in vain for any evidence which would warrant a finding or proper inference of any such authority. It is obviously not enough that the jury might have properly found that the defendant knew of, and consented to, the employment of such driver by its said agent (if Hutton was its agent). It is, indeed, sometimes loosely stated in text-books and even in opinions by courts that consent by a principal that his agent may employ agents makes the agents so employed the subagents of the principal, so as to fasten upon him liability...