Bush Brothers and Company v. Harold Hickey

223 F.2d 425, 1955 U.S. App. LEXIS 3980

• Court: Court of Appeals for the Sixth Circuit
• Decided: June 17, 1955
• Docket: 12329
• Status: Published

Opinions

ALLEN, Circuit Judge.

This is an appeal from a judgment of the District Court rendered upon a jury verdict in an action for personal injuries arising out of a collision between one Stanley Cress, a truck driver transporting a load of beans from Mountain City, Tennessee, to Chestnut Hill, Tennessee, a distance of some 54 miles, and appellee’s motor car, appellee being seriously injured.

The principal question presented is whether the District Court should have sustained the motion for directed verdict on the ground that Cress was an independent contractor, for whose negligence in the operation of his truck appellant was not liable.

Cress arranged to haul the beans for appellant in an oral contract negotiated on behalf of appellant by one Dick Wagner, who regularly made arrangements of this kind on behalf of appellant, employing and paying off helpers during the season of 1953. Appellant’s company hauled some 158,000 bushels of beans during this season, having three regular truckers for this purpose and other men hired to do extra hauling. Cress was one of the extras.

Appellant exercised no control over the manner of Cress’s operation except that he was not permitted to use a trailer. There was no agreement between Cress and appellant to haul any specified number of beans nor loads of beans, nor to haul for any specific period.

Under the law of Tennessee where the employment exists the burden is upon the employer to establish that the status of the other party was that of an independent contractor. D. M. Rose & Co. v. Snyder, 185 Tenn. 499, 206 S.W.2d 897. It is also the law of Tennessee that the question whether an employer has relinquished the right of control over work done for it is material in determining whether the status of the worker is that of independent contractor or employee. The fact that appellant exercises no control as to the manner or method by which the work is done, under Tennessee law is not determinative. It is not a question of whether control was exercised, but whether the right of control existed. Brademeyer v. Chickasaw Building Co., 190 Tenn. 239, 229 S.W.2d 323. It is also ■the law of Tennessee, as stated in Weeks v. McConnell, 196 Tenn. 110, 264 S.W.2d 573, that the legal right of an employer to terminate employment at any time is a strong circumstance tending to show subserviency of the employee and no single fact is more conclusive that the status of the parties is that of master and servant.

Under Tennessee law the decisive question here is not whether there was a series of contracts to haul beans. The decisive question is whether the employer had a legal right to terminate the employment at any time. Weeks v. McConnell, supra. On this point Wagner testified in answer to the question “You could quit him at any time?” “That is right.” While Bush, president of the company, testified that they had no control over Cress, he refused to say that he would not fire a trucker if he came into his office drunk, or that he would not fire one that he knew was reckless on the highway. Cress stated in effect that he could have been fired at any time. This certainly includes the right to fire before the job was finished. The testimony of Cress and Wagner supported a finding that appellant’s right to terminate employment included the right to fire Cress at any time. This presented a question for the jury. The burden was on appellant to prove that Cress was an independent contractor. D. M. Rose & Co. v. Snyder, supra. This burden appellant did not sustain.

The court, in a charge to which neither party excepted, left it to the jury to determine whether appellant had given up or relinquished the right of control over the work done for it by Cress and the jury evidently found that appellant could have terminated the services of Cress at any time and for any reason.

Conasauga River Lumber Co. v. Wade, 6 Cir., 221 F.2d 312, involved a written contract which established the status of an independent contractor for the driver of the truck involved in the accident. The written contract was made applicable to the later oral contract between the parties. The case is sharply distinguishable on the facts and not controlling here. In Terry v. Memphis Stone & Gravel Co., 6 Cir., 222 F.2d 652, the question whether the owner of the truck alleged to have caused the injuries complained of was an independent contractor was submitted to the jury with a full charge upon the question given by the court. The jury found that the owner of the truck was an independent contractor, for its verdict was in favor of the defendant. In the instant case the court submitted to the jury the question whether Cress was an independent contractor. The jury found that he was not, for its verdict was for the plaintiff. We conclude that the Terry case has no bearing here.

Since the verdict of the jury is supported by substantial evidence and no reversible error appears in the record, the judgment of the District Court is affirmed.