Webster v. Mississippi Publishers Corp.

• Decision Date: 28 November 1990
• Docket Number: No. 07-CA-58372,07-CA-58372
• Parties: Lois WEBSTER v. MISSISSIPPI PUBLISHERS CORPORATION.
• Court: Mississippi Supreme Court

Page 946

571 So.2d 946

Lois WEBSTER v. MISSISSIPPI PUBLISHERS CORPORATION.

No. 07-CA-58372.

Supreme Court of Mississippi.

Nov. 28, 1990.

Cotton Ruthven, Waller & Waller, Jackson, for appellant.

Suzanne N. Saunders and Sheila R. Fortenberry, Saunders Abel & Fortenberry, Jackson, for appellee.

W. Wayne Drinkwater, Jr., John C. Henegan, Butler Snow O'Mara Stevens & Cannada, Jackson, Robb M. Jones, Nixon Hargrave Devans & Doyle, Washington, D.C., John Grower, William L. Smith, Brunini Grantham Grower & Hewes, Jackson, S. Russell Headrick, Armstrong Allen Prewitt Gentry Johnston & Holmes, Memphis, Tenn., Daniel L. Singletary, Heidelberg & Woodliff, Luther Ott, Ott & Purdy, Peyton S. Irby, Jr., Watkins Ludlam & Stennis, Jackson, Steven Moll, Sabin Bermant & Gould, New York City, Edward Sledge, III, Hand Arandall Bedsole Greaves & Johnson, Mobile, Ala., John Nangle, Des Plaines, Ill., Louis Watson, Wise Carter Child & Caraway, Vardaman S. Dunn, Watkins & Eager, Jackson, Jack M. Weiss, Phelps Dunbar Marks Claverie & Sims, New Orleans, La., for amici curiae.

En Banc.

BLASS, Justice, for the Court:

THE ORIGINAL OPINIONS IN THIS CASE ARE WITHDRAWN AND THESE OPINIONS ARE SUBSTITUTED THEREFOR.

I.

Today's appellant complains of personal injuries caused by the negligent driving of a hauler for a newspaper publishing company. The complaint below was dismissed on the defendant's motion for summary judgment on the ground that the hauler was an independent contractor for whose torts the publisher is not responsible. We affirm. We cannot do otherwise without calling into question issues which have long been settled and making changes best left to the legislative branch.

II.

A.

Charles Savell has been hauling bundles of newspapers for the Mississippi Publishers Corporation (MPC) for forty-two years. He does business as Savell Trucking Company. Bennie W. Savell is Charles Savell's grandson and sometime employee. Doing the run for his grandfather one Saturday in April of 1985, Bennie apparently drove his grandfather's truck into the rear of Lois Webster's car, causing her extensive personal injuries.

In addition to hauling newspapers seven days a week from Jackson to Magee and Mendenhall, Savell carries other freight. He runs an "office" at 822 South West Street in Jackson, a sort of central dispatch for the twelve other haulers that the MPC uses. Savell pays the rent and the twelve others pay Savell a fee for use of this central facility, a place where companies can call in to have their goods carried around the state. This arrangement has apparently developed over time, with Savell as the leader because of his longevity.

MPC owns The Clarion-Ledger, Jackson Daily News ¹ and is the distribution agent for USA Today. On any given Saturday approximately 95,000 (MPC) newspapers are delivered. MPC's thirteen haulers pick up the prepackaged bundles of papers at the Jackson plant and deliver them, on time, in accordance with a delivery route. None of the haulers, however, actually makes home deliveries, nor do they handle money. If a retailer is dissatisfied with service, his call is ultimately directed to Reece Shook, State Operations Manager for The Clarion-Ledger. Virtually all of the newspapers are distributed by MPC in this manner.

Charles Savell and MPC sign a short form contract, yearly, outlining their respective rights and duties. ² The contract MPC, in addition, requires a valid driver's license from Savell, adequate equipment with which to haul the papers, and the physical ability to lift bundles. No other financial relationship is entered into: i.e., no advances, no loans, no Workers Compensation, no insurance requirements. The carriers are responsible for their own employees, maintenance, repairs, and fuel. Legal effect aside, all deponents "understand" that Savell is an independent contractor: that he is in business for himself. Savell: "I work for myself and I don't answer to the Clarion Ledger other than what is in this contract;" Williams Hunsberger, Circulation Director: "He's in business for himself."

provides that MPC will furnish Savell with a delivery schedule and that Savell will deliver the newspapers to all points on the schedule at the scheduled times. The contract further provides that MPC will pay Savell a fixed sum of $2,944.00 per month. Savell is free to engage in other businesses and does so.

B.

On May 23, 1985, Lois Webster filed her original complaint in the Circuit Court of Rankin County. Webster named Charles Savell, d/b/a Savell Trucking Company, and Bennie W. Savell as defendants. Mississippi Publishers Corporation was added as a party defendant about seven months later in an amended complaint filed December 19, 1985. The complaint charges that on April 20, 1985, a truck operated by Bennie W. Savell, an employee of Charles Savell, d/b/a Savell Trucking Company, struck the rear of an automobile in which Webster was riding, causing serious personal injuries.

After a volley of interrogatories, depositions and document production requests, MPC moved for summary judgment under Rule 56, Miss.R.Civ.P., asserting that the depositions of Charles Savell and two representatives of the MPC, William Hunsberger and Reece Shook, show that there is no genuine issue of material fact in dispute, and that, as a matter of law, Savell's relationship with MPC is that of an independent contractor, absolving MPC of liability in the premises. Webster asserts in her pleadings that Savell's relationship with MPC is a master and servant relationship.

Discovery developed the following facts:

1) The parties may terminate the hauling agreement without cause upon thirty days notice; no notice is required if there is a material breach of the contract;

2) Savell and MPC negotiate their contract and its terms;

3) Savell supplies his own truck, which he owns;

4) MPC contracts to have papers delivered in accordance with a delivery route and schedule;

5) There is no contractual right or obligation between MPC and Savell's employees;

6) The MPC-Savell business relationship has been long--forty-two years;

7) MPC's payment is a flat fee, but is renegotiated if the route changes substantially to reflect the route's requirements;

8) Savell does not purchase nor lease his route from MPC, sell newspapers himself, get additional customers nor deliver to the ultimate consumer; he has not collected money from retailers;

9) The contract calls the relationship one of an "independent contractor";

10) Savell receives no benefits apart from his monthly payment; MPC provides no insurance.

MPC based its motion for summary judgment upon the foregoing facts, established by depositions, interrogatories and documentary exhibits. Webster produced no evidence to dispute those facts. In this setting, the circuit court granted summary judgment, dismissing Webster's complaint against MPC. The circuit court certified the case for immediate appeal. Miss.R.Civ.P. 54(b); Fruchter v. Lynch Oil Co., 522 So.2d 195, 197-98 (Miss.1988); Cox v. Howard, Weil, Labouisse, Friedrichs, Inc., 512 So.2d 897, 899-901 (Miss.1987).

III.

A motion for summary judgment tests the legal sufficiency of all or part of When passing on a motion for summary judgment, the trial court must view the evidence in the light most favorable to the party against whom the motion has been made. Turner v. Johnson, 498 So.2d 389, 391 (Miss.1986); Adams v. Fred's Dollar Store, 497 So.2d 1097, 1099 (Miss.1986); Hudson v. Bank of Edwards, 469 So.2d 1234, 1238 (Miss.1985); Vickers v. First Mississippi Natl Bank, 458 So.2d 1055, 1061 (Miss.1984). Generally, a summary judgment motion should be denied where the record is incomplete regarding a material fact. Smith v. Sanders, supra, 485 So.2d at 1054-55.

                an opponent's case.   Mississippi Moving & Storage Co. v. Western Elec. Co., Inc., 498 So.2d 340, 342 (Miss.1986);   Willis v. Mississippi Farm Bureau Mut. Ins. Co., 481 So.2d 256, 258 (Miss.1985);  Brown v. Credit Center, Inc., 444 So.2d 358, 362 (Miss.1984).  Where a party has moved for summary judgment on an issue, the burden of production rests on the party who, at trial, would have the burden of proof on that issue.   Atkinson v. Natl Bank of Commerce, 530 So.2d 163, 166 (Miss.1988);   Grisham v. Long V.F.W. Post No. 4057, Inc., 519 So.2d 413, 415-16 (Miss.1988);   Galloway v. Travelers Ins. Co., 515 So.2d 678, 683 (Miss.1987).  As Webster would be burdened at trial with persuading the court of MPC's vicarious liability for Savell's negligence via respondeat superior, she bore the burden of production on summary judgment.   Fruchter v. Lynch Oil Co., 522 So.2d at 198 (Miss.1988).  None of this changes MPC's burden, once the facts are on the table, of persuading the court (1) that there is no genuine issue of material fact and (2) that MPC is entitled to a judgment as a matter of law.   Brocato v. Mississippi Publishers Corp., 503 So.2d 241, 243 (Miss.1987);   Pargo v. Elec. Furnace Co., 498 So.2d 833, 835-36 (Miss.1986);   Modling v. Bailey Homes & Ins., 490 So.2d 887, 891 (Miss.1986);   Smith v. Sanders, 485 So.2d 1051, 1054 (Miss.1986);   Gray v. Baker, 485 So.2d 306, 308 (Miss.1986);  Brown v. Credit Center, Inc., 444 So.2d 358, 362-63 (Miss.1983).
                

MPC argues forcefully that the status issue is one of law, peculiarly susceptible of resolution on summary judgment. Where the status issue has been fully fleshed out and there are no genuine issues of material fact, summary judgment may be appropriate. Fruchter v. Lynch Oil Co., 522 So.2d 195, 199-201 (Miss.1988).

IV.

The latest decisions of this Court dealing with the problem of distinguishing between independent contracts and agency or employment, discuss in some depth the issues involved, and the cases indisputably require that the judgment of the trial court be affirmed. ³ See Fruchter v. Lynch Oil Plainly, the scheduling of delivery of the freight at fixed times at several destinations and the enforcement of the...