Texas Co. v. Mills

• Decision Date: 15 October 1934
• Docket Number: 31194
• Court: Mississippi Supreme Court
• Parties: TEXAS CO. v. MILLS

156 So. 866

171 Miss. 231

TEXAS CO. v. MILLS

No. 31194

Supreme Court of Mississippi

October 15, 1934

(In Banc.)

1. MASTER AND SERVANT. Words "independent contractor" are used in contrast with word "servant," not with "agent," since both independent contractor and servant are 'agents of their principal. "Servant" is person employed by a master to perform service in master's affairs, and whose physical conduct in performance of the service is controlled, or is subject to right of control, by master; while an "independent contractor" is person who contracts with another to do something for him, but who is not controlled by the other nor subject to the other's right to control with respect to his physical conduct in performance of the undertaking.

2. MASTER AND SERVANT.

The matters of fact to be considered in determining whether person is "servant" or "independent contractor" are, among others, control which alleged master may exercise over details of work; whether person employed is engaged in distinct occupation or business; skill required; whether employer supplies tools and place of work period of employment; method of payment; and whether the work is part of employer's regular business.

3. MASTER AND SERVANT. Under facts, petroleum company's commission agent in charge of company's bulk sales station held company's "servant," not "independent contractor," though he furnished his own assistants, as respects company's liability for injury sustained by driver of agent's allegedly defective delivery truck.

Facts disclosed that company was lessee of the lot and owned buildings and equipment for receiving and storing its products; that agent's employment was for indefinite time; that agent was required to furnish trucks not furnished by company, and he was required to receive, store, care for and deliver company's products to purchasers; that he was required strictly to observe company's instructions; and that, at his expense, he was required to furnish all assistants and employees for operation of station.

4. MASTER AND SERVANT.

Where under facts, petroleum company's agent in charge of its bulk sales station was servant rather than independent contractor and was under company's control, person employed by agent to drive agent's truck used to deliver company's products held subject to company's control as to details of work, and hence was company's "servant," as respects company's liability for injury to driver.

5. MASTER AND SERVANT.

Master's duty to furnish servants with safe instrumentalities is not a contractual, but a nondelegable, common-law duty, except that master owes no duty to servant injured by defect in instrumentalities which servant himself has contracted to furnish or to keep in repair.

6. MASTER AND SERVANT.

Where under facts, petroleum company's agent in charge of its bulk sales station was company's servant rather than independent contractor, and driver employed to drive agent's delivery truck was likewise company's servant, company, not withstanding agent's like duty, held required to furnish driver safe truck and keep it in repair, so that company was liable to driver for injury caused by alleged defect in truck.

7. APPEAL AND ERROR. Master and servant.

In driver's action for injury sustained because of defective steering gear and brakes of truck, testimony that another employee drove truck some weeks later and ran into wagon held inadmissible, but admission thereof was rendered harmless when the other employee testified that cause of such collision was his driving truck at night with only one light.

APPEAL from the circuit court of Scott county HON. D. M. ANDERSON, Judge.

Action by Pete Mills against the Texas Company. Judgment for plaintiff, and defendant appeals. Affirmed.

Affirmed.

Watkins & Eager and L. C. Hallam, all of Jackson, and Nichols & Huff, of Forest, for appellant.

J. C. Duncan was not an agent of the Texas company, but an independent contractor.

Hutcherson Moore Lbr. Co. v. Pittman, 122 So. 191, 154 Miss. 1; Werner Sawmill Co. v. Northcutt, 161 Miss. 441, 134 So. 156; McDonald v. Hall-Nelly Lbr. Co., 147 So. 315, 165 Miss. 143; Casement & Co. v. Brown, 148 U.S. 615, 37 L.Ed. 582; Gulf Refining Co. v. Wilkinson, 114 So. 503; Trinity-farm v. Grosjean, Adv. Sheets, 78 L.Ed. 623.

The relation of master and servant did not exist between the appellee and the Texas Company, the appellant.

Buckner v. Railroad Co., 72 Miss. 873; Rogers v. Lewis, 144 So. 373; Gulf Refining Co. v. Nations, 145 So. 327, 167 Miss. 315; Mechem on Agency, (2d) 239; Texas Co. v. Brice, 26 F.2d 164; Union Cas. & S. Co. v. Gray, 114 F. 422, C. C. A. 3; Isaacs v. Prince & Wilde, 133 Miss. 195; Sawmill Const. Co. v. Bright, 116 Miss. 491; Carr v. Bruke, 169 N.Y.S. 981; Sawmill Co. v. Northcutt, 161 Miss. 441, 134 So. 156; Barnard v. Coffin (Mass.), 55 Am. Rep. 443; Till v. Fairbanks Co., 71 So. 298, 111 Miss. 123; Y. & M. V. R. R. Co. v. Denton, 133 So. 656, 160 Miss. 850.

The court committed error in refusing to direct the jury that Auditor Greene was without authority to direct or control the appellee in the performance of his duties.

Howze v. Whitehead, 93 Miss. 578, 46 So. 401; Planters' Lbr. Co. v. Sibley, 130 Miss. 26, 93 So. 440; Savings Bank v. Grocery Co., 123 Miss. 443, 86 So. 275; Colt v. Black, 144 Miss. 515, 110 So. 442; McCaskey Register Co. v. Swor, 154 Miss. 396, 122 So. 489; Postal Tel. & C. Co. v. Friedhof, 90 So. 182, 127 Miss. 498; Am. Bankers' Ins. Co. v. Lee, 161 Miss. 85, 134 So. 836; C. & G. Ry. Co. v. Miss. Clinic, 153 Miss. 29, 120 So. 203; Wellford & Withers v. Arnold, 162 Miss. 786, 140 So. 220; Foye Tie & Timber Co. v. Nicholas, 128 Miss. 709, 91 So. 395; George & Co. v. Woodruff Fur. Hardware Co., 133 So. 154, 160 Miss. 14.

The court below committed error in permitting the appellee, over objection of the appellant, to introduce evidence in respect to a subsequent collision had by the truck in question while being operated by Mr. Chipley.

Kent v. Railroad, 77 Miss. 494, 27 So. 620; Hercules Powder Co. v. Wolf, 145 Miss. 388, 110 So. 842; Tribbett v. Railroad Co., 71 Miss. 212, 13 So. 899; Kress & Co. v. Markline, 117 Miss. 37, 77 So. 858; Holiday & Wyon Co. v. O'Donnell (Ind.), 101 N.E. 642; 39 C. J., sec. 1235, p. 1023; Harrison v. N. Y. C. R. Co., 87 N.E. 802.

Assuming, for the sake of argument, that Pete Mills, the appellee, was an agent of the appellant, the appellant would only be liable for defects in instrumentalities under its actual control.

18 R. C. L., Master & Servant, par. 90, p. 585; Foster v. Conrad, 261 F. 603; Hann v. Darnell, 246 F. 943; Fair-banks, Morse & Co. v. Walker, 160 F. 896; Seminole Graphite Co. v. Thomas, 87 So. 366; Hamilton v. L. & N. R. Co., 41 So. 560, 6 L. R. A. (N. S.) 787; Grenara v. Jacobs, 98 N.E. 1029; O'Malley v. New York N. H. & H. R. R. Co., 96 N.E. 668; Rooney v. B. & M. R. R. Co., 94 N.E. 288; Hawkes v. Broadwalk Shoe Co., 92 N.E. 1017, 44 L. R. A. (N. S.) 1123; Wilson v. Valley Improvement Co., 73 S.E. 64, 45 L. R. A. (N. S.) 271; Israel v. Lit Brothers, 94 A. 136; Jones v. Standard Oil Co. of La., 223 S.W. 20.

If the appellee was the appellant's servant in this connection, the situation would seem to be that of a servant hired or borrowed from another--that is, by the appellant from Duncan. The terms of the appellee's employment by Duncan under the assumption here that he was so employed, may be material. All of the evidence relative thereto should therefore be examined.

Law of Agency, American Law Institute; Standard Oil Co. v. Anderson, 212 U.S. 215, 53 L.Ed. 480; Rogera v. Lewis, 144 So. 373; Gulf Refining Co. v. Nations, 167 Miss. 315, 145 So. 327.

Duncan was an independent contractor.

Inman v. Gulf Refining Co., 140 S.E. 289; Carter Publications, Inc., v. Davis, 68 S.W.2d 640.

Even if appellee had been employed and directed at the time of the accident by Green, the appellant would not be responsible therefor since such employment and direction would have been beyond the actual, ostensible or implied authority of Green.

2 C. J. 574; Harris v. San Diego Flume Co., 25. Pac. 758; Hackett v. Van Frank, 105 S.W. 1013; Dierkes v. Land Co., 34 L. R. A. (N. S.) 693; Tyler v. Hoofman, 124 S.W. 535; Minor v. Edison Electric Co., 50 N.Y.S. 218; Halladay v. Underwood (Ill. A. 130); Lytle v. Dotham Bank, 26 So. 6; Everman v. Herndon, 71 Miss. 823; Coulson v. Stevens, 122 Miss. 797, 85 So. 83; Dyle v. Griffin, 122 Miss. 829, 85 So. 93; Foye Tie & Timber Co. v. Nicholas, 91 So. 395, 128 Miss. 709.

Even if the court should hold that Duncan was not an independent contractor the relation of master and servant did not exist between the appellee and the Texas Company.

39 C. J., sec. 388, p. 268; 2 C. J., pp. 778 and 690.

Percy M. Lee and F. F. Mize, both of Forest, for appellee.

Appellee, at the time in question, was employed and directed by D. M. Green, a responsible agent of the appellant, for whose acts the appellant is responsible.

Ostensible authority is such authority as a principal intentionally or by want of ordinary care causes or allows a third person to believe the agent to possess.

2 C. J. 573.

Implied authority is that authority which the principal intends his agent to possess, and which is proper, usual, and necessary to the exercise of the authority actually granted.

2 C. J. 576, 578.

Even if appellee was employed by Clifton Duncan, the said Clifton Duncan was a responsible agent of the appellant, for whose acts the appellant is responsible.

Gulf Refining Co. v. Nations, 145 So. 331; Kisner v Jackson, 159 Miss. 424, 132 So. 90, 91; Caver v. Eggerton, 157 Miss. 88, 127 So. 727, 728; Pan-Am. Pet. Corp. v. Pate, 157 Miss. 822, 126 So. 480; Express Co. v. Brown, 67 Miss. 260...