Galloway v. King , 272 S.W. 807 ( 1925 )

If the conclusion reached by the jury was manifestly proper upon a reasonable view of the evidence, that the driver of the truck was not in the relation of independent contractor to appellant, it becomes immaterial whether the question of the relationship's being in the nature of an employé or an independent contractor was one purely for the court, or one of fact for the jury. We would be authorized to set the verdict aside only in case the evidence does not show, as a matter of law, that J. J. Tillery was not an employé. The court's charge correctly set out the adopted test for determining whether one is an employé or servant, or an independent contractor, as applied to tortious acts to third persons. It followed the rule as laid down and discussed in the following cases: McKinney v. Sherwin-Williams Co. of Texas (Tex.Civ.App.) 271 S.W. 133; Cunningham v. Ry. Co., 51 Tex. 507,32 Am.Rep. 632; Cunningham et al. v. Moore, 55 Tex. 373, 40 Am.Rep. 812; Wallace v. Oil Co., 91 Tex. 18, 40 S.W. 399: Moore v. Lee, 109 Tex. 391,211 S.W. 214, 4 A.L.R. 185; Crow v. McAdoo (Tex.Civ.App.) 219 S.W. 241; Higrade Lignite Co. v. Courson (Tex.Civ.App.) 219 S.W. 230.

And looking to the evidence, the agreement between the appellant and Tillery, as between themselves, as well as to third persons, has the elements, by intention and effect, legally fixing the status of that of independent contractor. By the agreement, in purpose and object, the appellant was, and the jury could not otherwise so say, merely agreeing with J. J. Tillery to do the special and stated work of hauling the hay, to the extent of 100 tons, and no more, to the warehouse of the Steger Grain Company for the fixed sum of "$1.50 a trip." He was to haul, not less than, but as much as, "about 100 tons of hay," for which he was to be paid "$1.50 a trip." The delivery was to be made by Tillery at the rate of "from 3 to 5 loads a week," or more than that if necessary to keep the Steger Grain Company in "hay all the time." It was Tillery himself that was "to see to it that the Steger Grain Company had hay all the time." By the agreement so reached between the parties, Tillery was left free, by intention and as a legal consequence, to make the delivery "trip" in his own way and according to his own judgment, free from control by appellant as to the details of performance, so long as he accomplished the result of providing the Steger Grain Company "with hay all the time." It was results alone in the performance of the agreement that appellant was looking to and was interested in and had control of. Tillery was free to do the hauling at any hour of the day, or on any day or days of the week, and to go any particular road or street of his choosing, however direct or indirect, and the appellant could not direct or control otherwise. If Tillery hired another to do the hauling for him, the appellant could not direct or compel otherwise. It would not be a violation of the letter or the spirit of the agreement for Tillery to perform it in his own way and manner, free from control or direction otherwise. The fact that appellant furnished the truck and the gas and oil to operate it would not, in the light of the nature of the agreement, constitute Tillery an employe, as it were, a drayman, rather than a special independent contractor to make delivery of the hay. A cropper on shares has all tools and means furnished to do his work, yet he is not usually, as a legal consequence of the facts, a mere hired hand. And while appellant could object to abuse of the truck by Tillery, as overloading or running it without sufficient oil or gas, the right to do so would arise in virtue of ownership of the truck, as a means of protection of property from injury, and not in virtue of authority to control Tillery himself in the manner of executing the agreement. Therefore we conclude that Tillery alone, and not the appellant, is liable for his personal negligence in the case.

The judgment is accordingly reversed, and judgment is here rendered on the undisputed evidence in favor of appellant, with all costs of the trial court and of this appeal.

Reversed and rendered.

On Rehearing. The evidence in the case being wholly undisputed as to the contract itself, whether Tillery was an independent contractor presented a question for the court. By the contract, Tillery was "to haul 100 tons of hay to the Steger Grain Company" for the fixed price of "$1.50 a trip or load." The appellant had 100 tons of baled hay in a hay barn in Mesquite that he had contracted to sell and deliver to the Steger Grain Company at Dallas. The contract was not merely to pay Tillery for such hauling as might be done by him at the rate of $1.50 per trip or load. It was contemplated and agreed that Tillery should haul and deliver the entire 100 tons of hay. The time of delivery was to be as directed by "the Steger Grain Company." Tillery agreed to produce the certain understood and specified result of hauling and making delivery to the Steger Grain Company of "100 tons of hay." The frequency of the deliveries was to be in accordance with the direction of the Steger Grain Company, made to Tillery himself. In other words, Tillery's undertaking was to do the Job of delivering 100 tons of baled hay to the Steger Grain Company, and to make the deliveries in such quantities each week as the Steger Grain Company would direct him to do. The contract conclusively evidences a definite beginning, continuance, and ending of the thing to be done. And the concurring facts become conclusive as to the effect of the contract, that Tillery could not terminate his personal service whenever he chose without a breach of the contract, and that Galloway did not have the unrestricted right to end the particular service whenever he chose to do so, without regard to the final result of the work. The result of the work was the essential thing to be done, which was the delivery to the Steger Grain Company of the entire bulk of "100 tons of hay." Such contract, as we conclude, constituted the relation of contractor and contractee, independent of subserviency, and not merely that of master and servant. 1 Labatt on Master and Servant, § 21, p. 67; 31 C.J. p. 473; 14 R.C.L. p. 72 This conclusion is not at variance, as appellee seems to urge, with the case of Fidelity Guaranty Co. v. Lowry (Tex.Civ.App.) 231 S.W. 818.

The motion is overruled.