Chapman v. Evans , 37 Tenn. App. 166 ( 1953 )

HOWELL, J.

These two suits, filed by Mrs. Elizabeth Chapman and her husband Ozro Chapman against Luther Joseph Evans, Ed Wall and Warren Brothers Roads Company, were for bodily injuries sustained by Mrs. Chapman and resulting expenses to Mr. Chapman, growing out of an accident when a truck being driven by Luther Joseph Evans, owned by Ed Wall, ran into another truck from which Mrs. Chapman was alighting at the time of the collision. All three defendants filed pleas of not guilty.

The plaintiffs by proper procedure have appealed in error from the action of the trial Judge in granting the motion of the defendant Warren Brothers Roads Company and dismissing the suits as to it and have filed assignments of error.

It is insisted for the plaintiffs that the trial Court erred in sustaining the motion of the defendant Warren Brothers Road Company and in dismissing their suits as to this defendant.

The motion for a directed verdict was granted at the close of plaintiffs’ proof.

Therefore the question for determination in this Court is whether or not the Court erred in granting the motion of the defendant Warren Brothers Roads Company.

The applicable law is well stated in .an opinion of this Court in the case of McMahan v. Tucker, 31 Tenn. App. 429, 216 S. W. (2d) 356, 360, where it is said:

“The principles applicable to directed verdicts have been so frequently announced that there can he no doubt as to the duty of this Court in considering the facts. The cases upon this subject are too numerous to he collated here. One of the latest and most concise statements upon this subject is found in the case of Tennessee Central Ry. Co. v. McCowan, 28 Tenn. App. 225, 188 8. W. (2d) 931: 'IJpon the consideration of a motion made by defendant for directed verdict “plaintiff is entitled to all legitimate inferences of fact favorable to him which may be reasonably drawn from the evidence tending to support the cause of action stated in his declaration”. Prudential Ins. Co. (of America) v. Davis, 18 Tenn. App. 413, 429, 78 S. W. (2d) 358, 368; and “the trial judge should take the most favorable view of the evidence supporting the rights asserted by the party against whom the motion is made, .and discard all countervailing evidence,” Wildman Mfg. Co. v. Davenport Hosiery Mills, 147 Tenn. 551, 249 S. W. 984, 985.’ ”

It is noted that the two defendants against whom the verdicts of the jury were rendered were called as witnesses for the plaintiffs.

It is from the testimony of these two witnesses that the question must be determined whether or not the defendants Wall and Evans were independent contractors or employed by Warren Brothers Roads Company. It would lengthen this opinion too much to quote from this testimony. We have carefully read and reread and considered this evidence and are of the opinion that the defendant Ed Wall was the owner of the truck involved and hired the defendant Evans to drive for him, that Wall had an .agreement with the Warren Brothers Roads Company to do some hauling for it and was to he paid a fixed price per ton for such hauling, that the truck was used in hauling for others and was not regularly hauling for Warren Brothers Roads Company but Wall would communicate with this defendant from day to day to find out if they wanted his truck to do any hauling the following day. The truck was the property of Wall and registered in his name and Evans was the employee of Wall. On the day of the accident Evans, driving Wall’s truck, had made a delivery of some asphalt from the Warren Brothers Roads Company plant to the Franklin Lime Stone Company and was on his way to his home when the accident happened. The driver Evans did not get .any instructions from the Warren Brothers Roads Company as to the hauling. His instructions were given by Wall. The Warren Brothers Roads Company had no control over the truck or the driver and the driver acted under directions from his employer Wall.

We think the record fully justifies the conclusion that in the operation of this truck Wall was not in the employ of Warren Brothers Roads Company but only did some hauling for them under an agreement that he should be paid so much per ton and that Evans was employed by Wall and not by Warren Brothers Roads Company.

There are many cases relied on and discussed by counsel in their briefs and arguments. Each case must be determined upon the facts as shown by the record and many of the cases cited can easily be distinguished from the case before us.

' We do not think that the record in this case would justify the conclusion that the Warren Brothers Roads Company had a right to control Wall or Evans in so far ,as their hauling for it was concerned except as to the results. It had no control over Evans the driver of the truck. The truck driver Evans was not on the business of the Warren Brothers Roads Company, hut was working for Wall. At the time of the accident he had completed his hauling for the day and was on his way home.

In the case of Grace v. Louisville & N. R. R. Company, 19 Tenn. App. 382, 89 S. W. (2d) 354, 357, this Court said:

“It is familiar law that an ‘independent contractor’ is une who, exercising an independent employment, contracts to do a piece of work according to his own methods and without being subject to control of his employer, except as to the result of his work. The ultimate question is not whether the employer actually exercises control but whether he has the right to control of essential details. Gulf Refining Co. v. Huffman & Weakley, 155 Tenn. 580, 297 S. W. 199; Powell v. [Virginia] Construction Co., 88 Tenn. 692, 13 S. W. 691, 17 Am. St. Rep. 925; Mayberry v. Bon Air Chemical Co., 160 Tenn. 459, 26 S.W. (2d) 148; Morgan Lumber Co. v. James, 14 Tenn. App. 305. Merely denominating one an ‘independent contractor’ does not make him so. Chunn v. Memphis Flooring Co., 7 Tenn. Civ. App. 532. In every case the decisive question is: Had the defendant the right to control in the given particular the conduct of the person doing the wrong? Phillips v. Tenn. Eastman Corp., 160 Tenn. 538, 26 S. W. (2d) 1051; Powell v. [Virginia] Construction Co., supra.

“In Standard Oil So. v. Parkinson, 8 Cir., 152 F. 681, 682, the rule was more elaborately stated as follows:

“ ‘The test of one’s liability for the act or omission of his alleged servant is his right .and power to direct and control his imputed agent in the performance of the causal act or omission at the very instant of the act or neglect. There can be no recovery of a person for the act or omission of his alleged servant under the maxim, “respondeat superior,” in the absence of the right and power in the former to command or direct the latter in the performance of the act or omission charged, because in such a case there is no superior to respond. Brady v. Chicago & Great Western R. C., 8 Cir., 114 F. 100, 107, 57 L. R. A. 712, Atwood v. [Chicago, R. I. & P.] R. Co., C. C., 72 F. 447, 454, 455; Byrne v. [Kansas City, Ft. S. & M.] R. Co., 6 Cir., 61 F. 605, 608, 24 L. R. A. 693; Hilsdorf v. City of St. Louis, 45 Mo. 94, 98, 100 Am. Dec. 352; Town of Pawlet v. Rutland & W. R. Co., 28 Vt. 297, 300; Miller v. [Minn. & N. W.] R. Co., 76 Iowa 655, 659, 39 N. W. 188, 14 Am. St. Rep. 258; Wood, R. R., See. 388; Donovan v. Construction Syndicate (1893), 1 Q. B. Div., 629; Rourke v. Colliery Co., 2 C. P. Div., 205.’

“All these rules are guides to the proper conclusion from the contract and the situation and conduct of the parties. ”

We cannot say that the trial court erred in granting the defendant’s motion.

The assignments of error are overruled and the judgment of the Circuit Court dismissing the suit as to Warren Brothers Roads Company is affirmed.

Plaintiffs in error will pay the cost of the appeal.

Hiekerson, J., concurs. Pelts, J., dissenting.