Texas Company v. Zeigler

• Decision Date: 21 April 1941
• Docket Number: Record No. 2318.
• Citation: 177 Va. 557
• Court: Virginia Supreme Court
• Parties: THE TEXAS COMPANY, ET ALS. v. M. ZEIGLER, ADMINISTRATOR, ETC.

Page 557

177 Va. 557

THE TEXAS COMPANY, ET ALS. v. M. ZEIGLER, ADMINISTRATOR, ETC.

Record No. 2318.

Supreme Court of Virginia, Richmond.

April 21, 1941.

Present, Holt, Hudgins, Browning, Eggleston and Spratley, JJ.

1. AUTOMOBILES — Negligence — Collision — Sufficiency of Evidence — Case at Bar. — In the instant case, an action for damages for the death of plaintiff's decedent occasioned by a collision between an automobile in which he was riding and a gasoline truck, there were two witnesses who testified that they saw the collision and their testimony was conflicting. One witness stated that the truck was on the wrong side of the road as it turned the curve where the collision occurred and that the 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 automobile, and the physical facts tended to prove that the truck driver was negligent in the operation of the truck.

Held: That there was evidence of a credible nature sufficient to make the question of negligence one for the jury and to support its verdict in favor of plaintiff, and such verdict, confirmed by the trial court, could not be interfered with by the Supreme Court of Appeals.

2. MASTER AND SERVANT — Liability of Master to Third Persons for Acts of Servant — Same as Liability of Principal for Torts of Agent — Case at Bar. — The instant case was an action for damages for the death of plaintiff's decedent occasioned by a collision between an automobile, in which plaintiff's decedent was riding, and a gasoline truck belonging to the local distributor of defendant oil company. Plaintiff contended that the relationship of the local distributor to the defendant was that of servant in the relationship of master and servant or agent in the relationship of principal and agent, while defendant contended the relationship was that of an independent contractor.

Held: That whether the relationship was that of master and servant or principal and agent, the legal effect as to the liability of the defendant was the same, in contra-distinction to that of the relationship of independent contractor.

3. MASTER AND SERVANT — Existence of Relationship — Sufficiency of Evidence to Show Local Distributor Servant of Oil Company — Case at Bar. — The instant case was an action for damages for the death of plaintiff's decedent occasioned by a collision between an automobile in which plaintiff's decedent was riding and a gasoline truck belonging to the local distributor of defendant oil company. Plaintiff contended that the relationship between the distributor and defendant was that of master and servant or principal and agent while defendant contended that the relationship was that of an independent contractor. The contract under which the distributor operated put him under a complete system of restraint and power. He was not allowed to do business in his own name unassociated with that of the company; his trucks and tanks carried the emblem of defendant; the filling station was titled in the company's name and the license was its own; sales were in the name of the company and whether for cash or credit was determined by it and prices were fixed by it; the distributor could employ his assistants but assumed full control and responsibility for them and was required to indemnify and save harmless the company; the distributor could not assign the contract; the telephone in the plant was in the name of the company and either party could terminate the agreement on five days' written notice.

Held: That the employee occupied as to his employer the relationship of servant or agent, and the employer was liable for the consequences of his act of negligence.

4. INDEPENDENT CONTRACTORS — What Constitutes — Employer's Right of Control as a Test. — It is not the actual exercise of control, but the right of control — that is to say, the potential power of control — which is important in a determination of whether or not the status of an employee or independent contractor exists.

5. INDEPENDENT CONTRACTORS — What Constitutes — Employer's Right of Control May Be Determined by Necessity of Obedience to Orders Given. — One of the means of ascertaining whether or not the right to control is present, which right is instrumental in determining whether or not the status of independent contractor or master and servant exists, is the determination of whether or not, if instructions were given, they would have to be obeyed.

6. INDEPENDENT CONTRACTORS — Assignment of Contract — Right Inherent in Relationship. — The right to assign the contract of employment without the consent of the other contracting party is a right that inheres in the status of an independent contractor.

7. MASTER AND SERVANT — Existence of Relationship — Right to Terminate Services without Liability as Test. — A test in determining whether relationship created is that of master and servant or independent contractor is whether either of the parties possesses the right to terminate the services at will without incurring liability to the other, this embracing, of course, the right of the employer at any time to discharge the party performing the work, an affirmative answer establishing the status of master and servant.

Error to a judgment of the Circuit Court of Tazewell county. Hon. A. C. Buchanan, judge presiding.

The opinion states the case.

George C. Peery, S. L. Sinnott, V. P. Randolph, Jr., A. S. Higginbotham and Smith & Peery, for the plaintiffs in error.

Crockett & Gillespie, for the defendant in error.

BROWNING, J., delivered the opinion of the court.

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 14th, 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 automobile 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.

2, 3 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 contra-distinction 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 petroleum 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...