
    Grocers Biscuit Co. et al. v. Hinton.
    (Decided June 9, 1936.)
    
      RODES & HARLIN and WOODWARD, DAWSON & HOBSON for appellant Grocers Biscuit Co.
    STOUT & HERDMAN for appellant Harry L. Cheaney.
    RODES K. MYERS and W. R. GARDNER for appellee.
   Opinion op the Court by

Creal, Commissioner

Reversing in part and affirming in part.

Robert H. Iiinton has recovered judgment against the Grocers Biscuit Company, a corporation, and Harry' L. Cheaney for $800 as damages for personal injuries and injuries to his automobile resulting from a collision between his automobile and one owned and driven by Cheaney. The Grocers Biscuit Company and Cheaney are appealing.

The petition alleged that at the time of the accident, Cheaney was an employee of the Grocers Biscuit Company and in the discharge of his duties as its employee as traveling salesman, acting as its agent and servant and doing what he had been directed to do by it. In an amended petition the duties of any person operating an automobile on a highway of the state of Tennessee under the laws thereof were set out, and were pleaded and relied upon as supporting his right of recovery.

The answer of the Grocers Biscuit Company traversed the allegations of the petition, and in a second paragraph pleaded contributory negligence, and in a third paragraph affirmatively alleged that at the time of the accident Cheaney was operating his own automobile and that the Grocers Biscuit Company had no control or ‘p°wer to direct the manner in which the automobile should be operated by him; that he operated it for himself exclusively without being subject to the orders or directions of the Grocers Biscuit Company. At the close of the evidence the Grocers Biscuit Company made a motion for a peremptory instruction in its favor which was overruled.

The accident occurred in Tennessee in or near the town of Waverly. Mr. and Mrs. Hinton and Mrs. Eubank, a friend of the family, and Robert Thomas, a grandson of Mr. Hinton and who was driving the automobile, were leaving Waverly and Cheaney was coming in his automobile from the opposite direction. Mr. Hinton and the other occupants of his automobile testified that they were driving over to the extreme right side of the road as they were traveling, and that when Cheaney’s car first appeared around the curve some distance away, he was driving on the opposite side, but that as he neared them his car began to swerve over in their direction and struck their automobile, inflicting the injuries and damages complained of. There was no evidence whatever to indicate any carelessness or negligence upon the part of the driver of Mr. Hinton’s automobile. Robert Thomas testified that after the accident Mr. Cheaney told him he was trying to adjust his sun visor at the time the accident occurred. Mr. Cheaney did not attempt to excuse himself, except to say that he was driving facing the afternoon sun and had kept his sun shade adjusted so as to protect his eyes, until he rounded the curve, when the sun glared into his face and so absolutely blinded him that before he could stop the cars collided, but he was unable to tell how it happened.

Counsel for appellant make no contention that the verdict is excessive or that it was not in entire accord with the weight of the evidence so far as the alleged negligence is concerned. They only ask a reversal of the judgment as to the Grocers Biscuit Company on the ground that in the operation of his automobile at the time and place of the accident, Cheaney was not under the direction or control of the company but was an independent contractor, and therefore it was not liable for any of the alleged negligence upon his part.

Cheaney was the only witness introduced by appellant, and his evidence concerning the nature, character, and terms of his employment is uncontradicted. According to his evidence he had been selling the products of the Grocers Biscuit Company for two or three years under an oral agreement whereby he received 13% per cent, commission on all orders which were accepted by the company. He received an advancement of $50 per week for expenses, which was deducted from his commissions. He owned his own automobile, paid Ms own expenses, and while he could sell anywhere in the state of Tennessee, he confined his activities to counties accessible to1 Bowling Grreen where he lived. He' testified that when he made the agreement with a representative of the G-rocers Biscuit Company nothing was said about the time he would devote to the business, but that he understood- that he was to and did devote all his time to it; that he was not subject to the direction or control of the company as to when or where or how he went or as to prospects or customers upon whom he would call, except that the company would at times request him -to call upon delinquent customers to collect bills; however, he was not on such a mission at the time of the accident, but was going to Waverly in his usual-course of-business to call upon his regular customers. He-further testified that there was no requirement as to where he should live nor as to his liability as to sample eases or samples furnished him; that he was to be controlled by prices furnished by the company and to take orders, that were acceptable; that the company had the right to terminate his employment at any. time. . .

Counsel for appellant cite and rely on the case of Leachman v. Belknap Hardware & Mfg. Co., 260 Ky. 123, 84 S. W. (2d) 46, 48, which manifestly is conclusive and determines the question presented adverse to appellee. In that case the Belknap Hardware & Manufacturing Company had employed William Lem. ing under a, contract which in substance provided that the salesman was to receive $100. per..month based on acceptable sales with a bonus for sales over a certain amount, the company to pay such traveling expenses incurred by the salesman while actually engaged in its business as were authorized under its rules. The salesman was to live in whatever territory assigned him and to make headquarters wherever the company might designate, devote all his time to the interests of the company, and assume full responsibility for samples turned over to him; carry at his own expense such automobile insurance as might in the opinio,n of the company be necessary to protect it and thei salesman from liability for personal injuries, etc.,, to others arising out of the operation of the automobile by him with both the salesman and company designated as assured' in the policy. In all cases not expressly covered by tbe contract, tbe salesman was to be governed by the rules, regulations, and policies of the company, including those outlined in tbe current expense book. Tbe right was reserved to tbe company to discharge tbe salesman upon notice. While operating bis own automobile in the furtherance of bis business as salesman under the; contract, tbe car came in collision with a truck of Leach-man’s and tbe latter sought to recover damages for tbe injuries to bis car, alleging in substance that Leming’ was tbe agent and employee of tbe Belknap Hardware' & Manufacturing ¡Company :and was operating his automobile under its direction and control. Tbe company in addition to a traverse of tbe petition affirmatively alleged in substance that Leming was an independent contractor and was employed by it as a salesman to sell goods in a specified territory, with no schedule regulating tbe time or manner in which be was to cover the territory or specifying where be should be at any particular time, and that it did not direct him to make tbe journey be was on at tbe time of tbe accident. Tbe court overruled a demurrer to this affirmative pleading, and Leacbman declining to plead further, bis petition was dismissed. In the course of tbe opinion it was said:

“Affirmative allegations of tbe answer as well as¡ tbe contract establish beyond cavil, doubt, or question that, Leming was an independent contractor within this statement of principle.”

Tbe principle referred to was tbe following quoted from American Savings Life Ins. Co., et al. v. Riplinger, 249 Ky. 8, 60 S. W. (2d) 115, 117:

“A servant is a person subject to tbe command of bis master as to tbe manner in which be-shall do bis work, and tbe master is tbe one who' not only prescribes tbe work but directs, or may direct, tbe manner of doing tbe work. Bowen v. Gradison Const. Co., 236 Ky. 270, 32 S. W. (2d) 1014; Jarvis v. Wallace, 139 Va. 171, 123 S. E. 374. A master within the doctrine of respondeat superior is tbe one who cannot only order tbe work, but also bow it shall be done. Carter v. King County, 120 Wash. 536, 208 P. 5. Tbe doctrine applies, only where the relationship of master and servant exists at the time and in respect to the thing causing the injury, and from which it arose (Tilburne v. Burton, 86 Cal. App. 627, 261 P. 334; Martin v. Greensboro-Fayetteville Bus Line, 197 N. C. 720, 150 S. E. 501; Kennedy v. Wolf, 221 Ky. 111, 298 S. W. 188), and then only when the one sought to be charged has some right in some way to control the conduct of the party having caused the injury (Trachtenberg v. Castillo [Tex. Civ. App.] 257 S. W. 657). * * *
“A salesman * * * or other person who is his own master in respect to the time he shall devote to the business of the employer, such as soliciting or making sales, using his own automobile or other vehicle, or the vehicle of another, in the pursuit of the employer’s business, but the employer is without right to direct the manner in' which he shall control its use. The employer is not liable in such case for damages inflicted by the employee’s negligent driving of the car or other vehicle.”

The Leachman and Riplinger Cases, supra, are in harmony with the weight and trend of authority. See Aldrich’s Adm’r v. Tyler Grocery Co., 206 Ala. 138, 89 So. 289, 17 A. L. R. 617, and annotations; James v. Tobin-Sutton Co., 182 Wis. 36, 195 N. W. 848, 29 A. L. R. 457. However there is a respectable authority holding to a different view. See Dishman v. Whitney, 121 Wash. 157, 209 P. 12, 29 A. L. R. 460.

Domestic cases cited and relied on by appellee are Postal Telegraph-Cable Co. v. Murrell, 180 Ky. 52, 201 S. W. 462, L. R. A. 1918D, 357; Williams v. National Cash Register Co., 157 Ky. 836, 164 S. W. 112, 114; and Jahn’s Adm’r v. Wm. H. McKnight & Co., 117 Ky. 655, 78 S. W. 862, 25 Ky. Law Rep. 1758. In the former the employee was a messenger boy who owned and maintained the bicycle used in delivering messages for the company. He was under the control of the company as to when and where he should go and when he should return, but in delivering messages selected his own route. At the time the injury complained of occurred he was on his way to deliver, a telegram under the direction of his employer. In the Williams Case the accident out of which the action grew occurred while he was operating his automobile in delivering a cash register for the company. Summing up the facts disclosed by the record in that case, it was said “the company practically reserved to itself the complete control over the details of the work.” The McKnight Case may be as easily distinguished and is even more favorable to appellant.

A comparison of the facts and circumstances developed in this case with those of the Leachman Case will at once reveal a much stronger case for the Grocers Biscuit Company than was made for the Belknap Hardware & Manufacturing Company. Therefore, in the light of the Leachman Case and the other authorities cited which follow the same trend, it is obvious that the court erred in overruling the motion of appellant Grocers Biscuit Company for a directed verdict in its, favor.

It is further contended by counsel for appellee that his right of recovery is controlled by the law of Tennessee and not by the laws of Kentucky and other-jurisdictions. To sustain their allegations respecting-the law of Tennessee, appellee took the deposition of an eminent attorney engaged in practice at Nashville in that state. Without going into detail, this witness stated that basically there is little difference between the laws of Tennessee and those of other states respecting negligence, and this evidence indicates that to impose liability under the laws of Tennessee in cases of this character it would be essential to show the relationship of master and servant or principal and agent between the company and the driver of the automobile,, and that the driver was at the time acting in the interest of the company and within the scope of his employment. The Tennessee cases cited are not out of harmony with eases from this court. On the question of independent contractor he cited a number of cases which, he stated defined “independent contractor”' as,

“One who contracts to do a piece of work according to his own methods and without being subject to the control of his employer and except -as to the result of his work,”

and continuing said:

“All these cases refer to construction or building-work wherein a certain job is to be done upon certain plans or specifications embodied in tbe contract, without any control by the. owner as to the method employed in the doing of said work.”

He further stated that he had not been able to find any case in Tennessee where a status of independent contractor was set up by the court except contracts involving physical construction or erection work and had found none where a salesman, whether on commission or salary, was classified as an independent contractor. We find, however, in the case of Income Life Insurance Company v. Mitchell, 168 Tenn. 471, 79 S. W. (2d) 572, 573, the .Supreme Court of Tennessee held that an insurance agent working under a yearly contract on commission over whom the company had no control as to where he worked or the time he put in, and who was required to report to the company only once a week and pay in his collections less his commission, was an independent contractor. This case cites with approval American Savings Life Ins. Co. v. Riplinger, supra. In fairness to counsel who gave the deposition, it should be said that the deposition was given on February 25, 1935, and the Mitchell Case was decided two days theretofore, and since he had no part in the case it is manifest he knew nothing of the decision at the time.

For the reasons indicated, the judgment as to Cheaney is affirmed, and the judgment as to the Grocers Biscuit Company is reversed and cause remanded for proceedings consistent with this opinion.  