Opinion
6 Div. 565.
May 11, 1961.
Appeal from the Circuit Court, Jefferson County, Ingram Beasley, J.
Parsons, Wheeler Rose, Birmingham, for appellant.
The Workmen's Compensation Act must be liberally construed and all reasonable doubt resolved in favor of the employee. Hamilton Motor Co. v. Cooner, 254 Ala. 422, 47 So.2d 270.
There must be some legal evidence to support the findings of the trial court. Bagwell Steel v. Tinker, 256 Ala. 585, 56 So.2d 114.
Where a truck belonging to the defendant was being operated by an employee, proof of such ownership raises a presumption that it was at the time being operated in the owner's business and by the owner's agent. Perfection Mattress Spring Co. v. Windham, 236 Ala. 239, 182 So. 6.
Whether the relationship of independent contractor or of employee exists depends upon whether the person for whom one is working has control over the means and agencies by which the work is done, or over the means and agencies by which the result is produced. Western Union Tel. Co. v. George, 239 Ala. 80, 194 So. 183.
It is the reserved right of control rather than its actual exercise which furnishes the true test of whether the relationship is that of an independent contractor or of employer and employee-master and servant. C. E. Adams Co. v. Harrell, 257 Ala. 25, 57 So.2d 83.
The fact that liability and workmen's compensation insurance were secured by the employer is strong proof tending to show the relationship was that of master and servant. Angell v. White Eagle Oil Ref. Co., 169 Minn. 183, 210 N.W. 1004; Birmingham Post Co. v. Sturgeon, 227 Ala. 162, 149 So. 74.
Huie, Fernambucq Stewart, Birmingham, for appellee.
On review of findings that judgment denying Workmen's Compensation, if there is any reasonable view of the evidence that will support the conclusion of the trial court, the judgment will not be disturbed. Williams v. Tenn. Valley Butane Co., 265 Ala. 145, 90 So.2d 84; Foster v. Continental Gin Co., 261 Ala. 376, 74 So.2d 474; Simpson v. Ala. Dry Docks and Ship Building Co., 269 Ala. 635, 114 So.2d 918; Code 1940, Tit. 26, § 304.
Compensation law does not apply where injured person is independent contractor. Birmingham Post Co. v. Sturgeon, 227 Ala. 162, 149 So. 74; Code, Tit. 26, § 253.
Whether the relation of independent contractor or that of servant exists depends upon whether the person for whom one is working has control over means and agency by which work is done, or over means and agency by which result is produced. Birmingham Post v. Sturgeon, supra; General Exchange Ins. Corp. v. Findlay, 219 Ala. 193, 121 So. 710; Warrior-Pratt Coal Co. v. Shereda, 183 Ala. 118, 62 So. 721.
Master is one who has supreme choice, control and direction of servant and whose will servant represents, not merely an ultimate result of his work, but in all details. Lookout Mt. I. Co. v. Lea, 144 Ala. 169, 39 So. 1017; Martin v. Republic Steel Co., 226 Ala. 209, 146 So. 276.
Findings of Fact by the Trial Court
"1. This cause was filed by the plaintiff, Bobbie Nell Stewart, on the 3rd day of August, 1959, by a verified complaint in which plaintiff avers among other things that she is the widow of Don E. Stewart who died on July 6, 1959; that plaintiff's deceased husband was driving a motor vehicle owned by the defendant which was in collision with an automobile on said date at or near the intersection of Huntsville Road and Thirty-fifth Avenue North, Birmingham, Alabama and as a proximate result thereof her said husband was killed. Plaintiff contends that the deceased was an employee of the defendant within the meaning of the Workmen's Compensation Statutes, and his death was caused by an accident arising out of and in the line and scope of his employment by the defendant.
"2. The Court finds that the said Don E. Stewart died as a proximate consequence of the automobile accident which occurred on July 6, 1959 at said time and place while driving a vehicle owned by the defendant.
"3. The Court further finds that the defendant was at the time of the employment of the deceased engaged in the business of the sale of ice cream and ice cream products in the City of Birmingham and vicinity which it purchased from other sources. The defendant had at one time manufactured its own products but this practice was discontinued and at the time of its relationship with the deceased the defendant purchased all of its goods and products from other sources for re-sale. That some of defendant's sales were at wholesale prices and some at retail prices to other companies and individuals.
"4. The deceased and the defendant entered into an agreement during the later part of May, 1959 which continued in effect until the date of decedents death. The deceased applied to the defendant for work and employment as a street vendor of defendant's said ice cream products. The defendant at said time owned six trucks equipped for use in transporting and peddling the defendant's said ice cream products to various communities and sections in Birmingham and vicinity. That the defendant also owned push carts and tricycles from which its said street vending business was conducted.
"5. The Court further finds that on the 26th day of May, 1959 the deceased and the defendant entered into an agreement whereby defendant agreed to furnish to the deceased one of its said trucks and assigned the deceased a territory generally in the vicinity of Robinwood, Tarrant City and Inglenook. Each morning thereafter between seven-thirty and eight-thirty a. m. (except Mondays which was the deceased off-day) the deceased would check out a load of ice cream and ice cream confections at defendant's place of business all of which said ice cream and ice cream products were consigned to him on credit. The deceased checked in each night around seven-thirty to eight-thirty p. m. When the deceased checked in at night, the merchandise he had left was counted and subtracted from the amount consigned to him that morning and he was charged the wholesale price for the amount he did not return. The defendant fixed a retail price at which its products were to be sold and the wholesale price to its vendors was arrived at by charging the street vendors seventy-five per-cent of the retail price established by the defendant. In other words, the vendor was allowed and permitted to retain all of the proceeds from his sales and paid the defendant therefor seventy-five per-cent of the retail price each night. The defendant kept no records as to the earnings of the deceased; kept no payroll records and made no deductions or charges for withholdings or social security taxes. The defendant kept a daily record for each truck operated showing the amount of merchandise consigned to each driver each morning and the mileage traveled by each truck. These records being plaintiff's exhibit one, two and three. Based upon calculations of seventy-five per-cent of the retail price of the merchandise consigned to the deceased and paid for by him, the deceased worked four days in May and his earnings would have been Forty-five Dollars and fifteen cents ($45.15); that the deceased worked twenty-six days in June and that his commissions would have been Three Hundred and Two Dollars and Thirty-one cents ($302.31); and that he worked three days in July and his commissions would have totaled Thirty-five Dollars and ninety-three cents ($35.93), making a total of Three Hundred Eighty Three Dollars and thirty-nine cents ($383.39) earned by the deceased during the period of employment with the defendant, if the deceased sold the merchandise at retail prices. The record further shows that the deceased traveled during said period a total of Thirteen Hundred and Thirty-five miles.
"6. The Court further finds that by the agreement between the parties the deceased was required to furnish all gasoline for the operation of the defendant's truck by him and was permitted and allowed to purchase gasoline wherever and from whomever he pleased. The defendant agreed to furnish oil and all necessary repairs for said truck. The license tag for said truck and the business license for the sale of defendant's products were paid by the defendant. That the estimated gasoline expense for the operation of said truck is estimated to be from a Dollar and a half to a Dollar and eighty cents per day.
"7. The Court further finds that the deceased was not required to work according to any fixed route or time schedule but was free to peddle said merchandise within the assigned territory on such routes or schedules as deceased determined. That the defendant did not direct the manner in which deceased worked in the assigned territory or the manner in which the deceased sold said merchandise. The defendant did, however, suggest to deceased that he lay out and establish a route for himself and to work said route regularly. That the truck owned by the defendant and made available to the deceased had printed thereon the name 'Baker's Ice Cream Company' on each side thereof. After checking in each night, the truck used by the deceased was parked on the premises of the defendant where it remained over-night. The deceased was not permitted to use said truck for traveling to and from his home.
"8. The Court further finds that the defendant had printed form contracts which were normally and usually used by the defendant in employing salesmen. A copy of said printed contract was introduced into evidence as defendant's exhibit 'A'. It is the contention of the defendant that the deceased executed one of their regular written contracts of which the said defendant's exhibit 'A' is an exact form but that said contract executed by the deceased has been lost or misplaced. The Court is of the opinion, however, that whether the contract was in writing or not would not alter or change the conclusion reached by the court. The evidence is without dispute that said contract was subject to termination at the will of either party.
"9. The Court further finds from the evidence that the defendant had in force a workmen's compensation insurance policy to cover certain plant employees in its operation. That the name of the deceased and other street vendors were not covered by said compensation insurance policy and were not named therein as an employee of the defendant.
"10. The Court further finds that the place where the deceased met his death was either in the territory assigned to him or in such close proximity thereto as to have no weight or bearing. It is without dispute that he was not working any territory assigned to any other vendor and that he was not expressly prohibited from selling or peddling at the location where he met with his accident.
"11. The Court further finds that the deceased left surviving him the plaintiff, his widow, and one child.
* * * * * *
"12. The Court further finds that the defendant carried public liability insurance on the truck which the plaintiff's intestate was driving at the time of his death and that the premium therefor was paid by the defendant. There was no evidence however as to when the insurance was placed on said truck or whether the name of the deceased was in any way mentioned in said policy."
This is a petition for a writ of certiorari to the Circuit Court of Jefferson County, Alabama, to review its opinion and judgment in a Workmen's Compensation case. In this case the widow, Bobbie Nell Stewart, was denied compensation on the theory that her deceased husband, Don E. Stewart, was an independent contractor when he was killed in an accident while driving one of the appellee's trucks. The trial court held that under the evidence in the case, the deceased was not an employee of defendant within the meaning of the Workmen's Compensation Statute at the time of his death.
As bearing on the issues in the case, the findings of fact by the court will be set out in the report of the case.
The trial court, upon a consideration of all the facts, reached the following conclusions of law:
"The defendant interposed two defenses, viz: (a) the plaintiff's said deceased husband was not an employee within the meaning of the Workmen's Compensation Statute and; (b) that deceased, if found to be an employee within the said Statute, was not acting within the line and scope of his employment at the time and place he received his alleged injuries, in that he was not working within the territory assigned him.
"In the opinion of the court the deceased was not an employee of the defendant within the meaning of the Workmen's Compensation Statute at the time of his death and plaintiff is not entitled to compensation as claimed in the complaint. The Court is of the opinion that this case is controlled by the decision in the case of Birmingham Post Co. v. Sturgeon, 227 Ala. 162, 149 So. 74.
"A consideration of the defense that the deceased was not acting within the line and scope of his employment at the time of his death is unnecessary, however, the Court holds that the evidence does not bear out the defendant's position that deceased was not working within his assigned territory."
I. In Birmingham Post Co. v. Sturgeon, 227 Ala. 162, 149 So. 74, 76, this court said:
"The compensation law does not apply where the injured person is an independent contractor, and the relation of employer and employee does not exist. It is not possible to lay down a hard and fast rule or state definite facts by which the status of men working and contracting together can be definitely defined in all cases as employee or independent contractor. Each case must depend on its own facts. Ordinarily, no one feature of the relation is determinative, but all must be considered together."
In Greenwald v. Russell, 233 Ala. 502, 172 So. 895, the court held that in order for there to be a relationship of employer-employee, the other party must retain the right to direct the manner in which the business shall be done as well as the result to be accomplished, or in other words, not only what shall be done but how it shall be done. See also, General Exchange Ins. Corp. v. Findlay, 219 Ala. 193, 121 So. 710; Republic Iron Steel Co. v. McLaughlin, 200 Ala. 204, 75 So. 962; Martin v. Republic Steel Co., 226 Ala. 209, 146 So. 276; C. E. Adams Co. v. Harrell, 257 Ala. 25, 57 So.2d 83.
In the instant case while up until the time Stewart left the place of business of the appellee, the company might be said to have some control over him, just as in Birmingham Post Co. v. Sturgeon, 227 Ala. 162, 149 So. 74, it appears to be undisputed that from the time he left his place of employment in the morning at 8:00 a. m. until he returned at about 8:00 p. m., there was no control exercised over him. It is true that he was assigned to a definite territory and he was advised that it was best for him to travel up and down streets with regularity at approximately the same time during the day, just as in Birmingham Post Co. v. Sturgeon, supra, yet the method in which he would try to do his work was left completely and entirely up to him. The actual sale of the product was left completely up to him, as in Birmingham Post Co. v. Sturgeon, supra.
Since the court in its opinion states that this case is controlled by the decision in Birmingham Post Co. v. Sturgeon, supra, we point out the facts in the Birmingham Post Company case which we think are, in substance, the same as in the instant case:
1. In the Birmingham Post case, the papers delivered were to be returned or accounted for. In the case at bar, the ice cream delivered was to be returned or accounted for.
2. Sturgeon's name did not appear on the payroll in the Birmingham Post case. Stewart's name did not appear on the payroll in the case at bar.
3. In the Birmingham Post case, the lack of control while on the route is to be held a controlling feature. In the case at bar, the evidence is clear to the effect that there was no control by the company while the deceased was actually on the route.
4. In the Birmingham Post case, Sturgeon's compensation was the difference in the purchase price and the sale price. The deceased's compensation, in the case at bar, was the difference between the purchase price and the sales price.
5. The defendant's interest in the Birmingham Post case was in the sale of his papers and not in the means by which the result was obtained. The defendant, Baker Ice Cream Company's interest was in the sale of its product, and not in the means by which the result was obtained.
6. In the Birmingham Post case, there is a comment to the effect that evidence that the defendant obtained insurance is a strong factor to be considered in determining whether or not there is a relationship of employer or employee. In the case at bar, it is true that the defendant obtained Workmen's Compensation Insurance but Thomas E. Yeager, the general manager of the company, stated that he purchased this insurance when he was manufacturing ice cream and when he had 25 or 30 employees. (At the time of the accident, the company had ceased to manufacture ice cream.) He stated further that the name of Stewart and the other drivers were not listed on the application for the Workmen's Compensation Insurance.
7. In the Birmingham Post case, Sturgeon received no compensation or salary. In the case at bar, Stewart received no compensation or salary other than the difference in the price paid and the price the product was sold for.
8. In the Birmingham Post case, the price of the paper was fixed, and in the case at bar the price of the product was fixed.
9. In the Birmingham Post case, the plaintiff was assigned a territory and in the Baker Ice Cream Company case, Stewart was assigned a territory.
10. There was no district supervisor or manager to supervise Sturgeon in the Birmingham Post case, and no district manager to supervise Stewart in the case here.
11. In the Birmingham Post case, credit was extended for one day, and in the case at bar, credit was extended for one day.
12. In the Birmingham Post case, Sturgeon could be discharged by refusing credit and in the case at bar, Stewart could have been discharged by refusing credit, and refusing the privileges of using the truck any further if the testimony of Mr. Yeager is to be believed.
It should be added that in the instant case, it is undisputed that the name of the deceased was not carried on the records of the company for social security purposes, for withholding tax purposes or for unemployment compensation purposes. The records of the company do show that the deceased was charged each morning with the amount of the product which he was to try to sell.
It is true that the truck which Stewart used belonged to the company and while there was a conflict in the evidence that the truck which he used after the first day or two bore the name of the company, this at best only created an administrative presumption that he was acting within the line and scope of his employment as an employee of the company and could be rebutted by clear and convincing evidence that he was not such an employee. The court resolved the question by holding that the deceased was an independent contractor. Perfection Mattress Spring Co. v. Windham, 236 Ala. 239, 182 So. 6.
This court has often held that on review of findings the judgment denying Workmen's Compensation will not be disturbed if there is any reasonable view of the evidence which will support the conclusion of the trial court. Williams v. Tennessee Valley Butane Co., 265 Ala. 145, 90 So.2d 84; Foster v. Continental Gin Co., 261 Ala. 366, 74 So.2d 474; Simpson v. Alabama Dry Dock Shipbuilding Co., 269 Ala. 635, 114 So.2d 918.
We consider that there was evidence which reasonably supported the finding and judgment of the lower court and, accordingly, we will not disturb the findings and conclusion reached by the lower court.
Affirmed.
LIVINGSTON, C. J., and LAWSON and MERRILL, JJ., concur.