Galloway v. King

LEVY, J. (after stating- the facts as above). 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 employe 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. Til-lery was not an employe. The court’s charge correctly set out the ,adopted test for determining whether one is an employe 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 [809] 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. Til-lery 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 employé, as it were, a drayman, rather than a special independent contráctor 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.