Capps, Gerald N.

English

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Agency -- Independent Contractors -- Newsboys

University of Miami School of Law

University of Miami Law SchoolInstitutional RepositoryUniversity of Miami Law Review10-1-1957Agency -- Independent Contractors -- NewsboysGerald N. CappsFollow this and additional works at: http://repository.law.miami.edu/umlrThis Case Noted is brought to you for free and open access by Institutional Repository. It has been accepted for inclusion in University of Miami LawReview by an authorized administrator of Institutional Repository. For more information, please contact library@law.miami.edu.Recommended CitationGerald N. Capps, Agency -- Independent Contractors -- Newsboys, 12 U. Miami L. Rev. 117 (1957)Available at: http://repository.law.miami.edu/umlr/vol12/iss1/11CASES NOTEDdivision D29 of section 344-a and said, " ... upon that subject we think itappropriate to suggest that the information the defendants seek may bethe objective of a corrective motion . . . or a bill of particulars . . . " butits absence will not result in dismissal for failure to state a cause of action. 0In the instant case, the court followed the rule set down in the Aramscase, but refused to adopt the theory that the tort law involved was rudi-mentary. In the latter context the court can not be criticized, since the actionwas for non-fault liability, a doctrine dependent upon master-servant rela-tionships which are not universally recognized. The federal court-whichwas bound to apply New York law as it is, not as the court thinks it oughtto be, 1 or thinks it will be-made no mention of the opinion expressed inthe Pfleuger case by the New York high court. The plaintiff was a strangerto Saudi Arabia; the defendant corporation conducted extensive businessthere and could in all probability have easily assisted the court in judiciallylearning the Saudi-Arabian law with savings in time and cost. Perhaps thiswas the type of adverse consideration the court had in mind in the Pfleugercase in its general discussion concerning the statute and matters secifiedtherein. However, since that decision concerned the law of a sister state,the court could not properly follow it as precedent in the instant case andreluctantly permitted an apparent injustice to occur.With the ever increasing rate of international intercourse, an increasein the number of actions involving the law of foreign countries is inevitable.The international traveler will need available means of establishing claimsand defenses based on foreign law. The majority of such actions willundoubtedly be tried in the larger cities where necessary facilities, such asa panel of experts and foreign law libraries, could be annexed to the courts.It is submitted that a two-fold purpose would be served by equipping thecourts to judicially notice the law of foreign countries: economies would beeffected in valuable courtroom time, and a better form of justice would beavailable to the traveler of modest means.WILLANm A. KOLODGYAGENCY - INDEPENDENT CONTRACTORS -NEWSBOYSA newspaper carrier, while making his deliveries on a motorcycle,negligently struck and injured the plaintiff. Held, plaintiff could not re-cover from newspaper company, as carrier was an independent contractorand not an employee. Miami Herald Pub. Co. v. Kendall, 88 So.2d 276(Fla. 1956).29. See note 2 supia.30. Pfleuger v. Pfleuger, SU/,ra at 152, 106 N.E.2d at 497.31. I]axon Co. v. Stentor Elee. Mfg. Co., 313 U.S. 487 (1941).UNIvRSI''Y OF PfIMIri Ltv RiwElEx'The principal test applied by the courts in determining if the relation-ship of the parties is that of employer and servant or hirer-independentcontractor lics in the right to control the manner in which the workis to be performed.1 However, numerous other tests for determining therelationship of the parties have been propounded by the Restatement.2 Atleast one court has held that the right to hire and fire should be givenconsideration, 3 while another court has held that this power conclusivelyindicated a master-servant relationship. It would appear that no onetest or circumstance has been found which, in itself, conclusively indicatesthe relationship of the parties. Each individual case must be resolved uponits own particular facts and circumstances.5Whether newspaper companies are vicariously liable under the doctrineof respondeat superior for the torts committed by their carriers hasbeen the subject of much litigation. In cases where the company has beenheld not liable,0 the contract of cmployment usually provided that thecarrier was an independent contractor and the company was to exercise11 control over the manner in which the papers were to be delivered.However, in cases involving the same contract terms courts have heldotherwise.7 In the former group of cases, the courts looked no further thanto the contract itself,8 while in the latter group, the courts not onlyconsidered the contract, but also looked to the actual conduct of theparties.'1. Bohanon v. McClatchy Pub. Co., 16 Cal. App.2d 188, 60 P.2d 510 (1936);Gulf Refining Co. v. Wilkinson, 94 Fla. 664, 114 So. 503 (1927); Morris v. ConstitutionPub. Co., 84 Ga. App. 816, 67 S.E.2d 407 (1951); Bell v. Sawyer, 313 Mass. 250,47 N.E.2d 1 (1943); Gall v. Detroit Journal Co., 191 Mich. 405, 158 N.E. 36 (1916);Caller v. Slursberg, 22 N.J. Super. 477, 92 A.2d 89 (1952).2. RE.STATEENT, AcENcY § 220 (2) (1933). The following tests are thereinprovided; "(a) extent of control which, by agreement, the master may exercise overthe details . . . ; (b) vhether . . . distinct occupation or business; (c) the kind ofoccupation . . . ; (d) the skill required . . . . (e) whether the employer or theworkman supplies the instrumentalities, tools, and the place of work . . . ; (f) the lengthof time for which the person is employed; (g) the method of payment ... ; (h) whetheror not the work is a part of the regular business of the employer; and (i) whetheror not the parties believe they are creating the relationship of master and servant."3. Matter of Scatalo, 257 App. Div. 471, 14 N.Y.S.2d 45 (1939), aff'd, 282 N.Y.689, 26 N.E.2d 815 (1940).4. Lassiter v. Cline, 222 N.C. 271, 22 S.E.2d 558 (1942).5. Schaller v. Industrial Ace. Comm'n., 11 Cal. App.2d 46, 77 P.2d 836 (1938).6. Morris v. Constitution Pub. Co., 84 Ga. App. 816, 67 S.E.2d 407 (1951);Oklahoma Pub. Co. v. Greenlee, 150 Okla. 69, 300 Pac. 684 (1931); Moore %'. Burriss,132 W. Va. 757, 54 S.E.2d 23 (1949).7. Elder v. Aetna Cas. Co., 149 Tex. 620, 236 S.W.2d 611 (1951); Salt LakeTribune Pub. Co. v. Industrial Comm'n. 99 Utah 259. 102 P.2d 307 (1940); Femling%. Star Pub. Co., 195 Wash. 395, 81 1.2d 293 (1938), set aside on other grounds, 195Wash. 395, 84 P.2d 1008 (1938).8. Rathburn v. Payne, 21 Cal. App.2d 49, 68 P.2d 291 (1937); Bass v. KansasCity Journal Post Co., 347 Mo. 681, 148 S.W.2d 548 (1941); Greening v. GazettePrinting Co., 108 Mont. 158, 88 P.2d 862 (1939).9. Scorpion v. American-Republican, 131 Conm. 42, 37 A.2d 802 (1944) (Thecontracts alone are not determinative of the question of agency and upon all theevidence the jury might have properly found that the carrier was the agent of thedefendant.); Elder v. Aetna Cas, Co., 149 Tex. 620, 236 SA..2d 611 (1951) (RegardlessC ASEs Nxri1The question must be considered in the light of how far the courts,as well as the legislatures, will go in applying the doctrine of vicariousliability. In determining the status of the newsboy for the purposes ofWorkmen's Compensation and labor legislation the courts have been moreliberal in holding the newsboy to be an employee. However, these 'casesindicate that the courts are reluctant to extend this liberality for thepurpose of determining the tort liability of the companies.' Nevertheless,in the face of this reluctance on the part of the courts, some states havebecome conscious of the necessity of extending the doctrine of vicariousliability in order to provide a means of placing responsibility on the personwho is financially able to compensate the injured party. This has beenaccomplished through legislative enactments," and in at least one state, byjudicial decision.-' Perhaps financial responsibility was not the sole reasonfor extension of the doctrine, but it cannot be denied that the result isin accord with the mandate of modern society not to allow an injuredparty to suffer a wrong without recompense.Although the decision in the instant case is in accord with the numericalweight of authority, the court disregarded the actual conduct of theparties,'' and looked no further than the contract itself. If the surroundingcircumstances had been taken into consideration, the only logical conclu-sion that could have been reached would have been incompatible withthe legal concept of hirer-independent contractor. In determining therelationship of the parties, their extra-contractual deportment should also bescrutinized, for to hold otherwise would be to invite employers to eludeliability by simply signing a contract which does not manifest the trueof what the contract purported, the determining question is, did the company actuallyexercise the right to control.)10. Press Pub. Co. v. Industrial Ace. Comm'n, 190 Cal. 114, 210 Pac. 820 (1922);Laurel Daily Leader, Inc. v. James, 224 Miss. 654, 80 So.2d 770 (1955); ("We haverepeatedly held the rule is more liberal in compensation cases. We are not concernedwith a rule of liability of appellant if appellee had struck some one with his motor-bikeand inflicted an injury upon a third person. ). Harm %'. Times Dispatch Pub. Co.,166 Va. 102, 184 S.E. 183 (1936).I1. CAL. VEHICLE CoDE Ass. § 402 (Supp. 1955), InAHo CODE ANN. § 49-1004(1948), IOWA CODE ANN. c. 321, § 321.493 (Supp, 1956), N.Y. VECLE AND "RAl'FicLAw § 59. TFypical of these is New York's:Every owner of a motor vehicle or motorcycle operated upon a public highwayshall be liable and responsible for death or injuries to the person or propertyresulting from negligence in the operation of such motor vehicle or motorcycle,in the business of stich owner or otherwise, by any person legally using oroperating the same with the permission, express or implied, of such owner.(Emphasis added).12. May v. Palm Beach Chemical Co., 77 So.2d 468 (Fla. 1955); Southern CottonOil Co. v. Anderson, 80 Fla. 441, 86 So. 629 (1920). (The owner of a motor vehiclewho intrusts it to another to operate is liable for injury caused to others by the negligenceof the person to whom it is intrusted.)13. Miami Herald Pub. Co. v. Kendall, 88 So.2d 276 (Fla. 1956) (The supervision,by the company as to the hours of work, the complaints regarding service, or as tosubscriptions, collections, or prices of papers did not vitiate' the provisions in the contract.)UNIVERSITY OF MIAMi LAw REviEwrelationship of the parties.14 If the employer is allowed to exculpate himselffrom all liability by designating his employees as independent contractors,the court's decision is not in conformity with social policy.CERALD N. CAPPSTORTS - NEGLIGENCE - CAR KEY STATUTESThe defendant automobile owner, in violation of a statute,' left hiscar unattended with the key in the ignition. The car was stolen and thethief, driving recklessly, injured the plaintiff. Held, the thief's driving at areckless rate of speed was an intervening cause which superseded theoriginal act of negligence of the defendant automobile owner.2 Permenterv. Milner Chevrolet Co., 91 So.2d 243 (Miss. 1956).Since the turn of the century the courts have been confronted withthe problem of imposing liability on an automobile owner to compensatean injured third party when an unauthorized driver is at fault.3 In thosejurisdictions that have decided claims arising through violation of so called"car key legislation,"' the majority have denied recovery as a matter of lawon the rationale that the violation of a penal statute is not intended toresult in civil liability;" some of these jurisdictions further conclude thateven assuming the violation of the statute0 is negligence per se, that thenegligence of the thief and not the violation is the proximate cause of14. W. P. Brown & Sons Lumber Co. v. Crosley, 230 Ala. 403, 161 So. 536 (1935);Scorpion v. American-Republican, 131 Conn. 42, 37 A.2d 802 (1944); Howe FireApparatus Co. v. Humphrey, 113 Ind. App. 167, 46 N.E.2d 259 (1943); Goetschelv. Glassell-Wilson Co., 13 La. App. 424, 127 So. 81 (1930); Dagley v. National Suit &Cloak Co., 224 Mo. App. 61, 22 S.W.2d 892 (1929); Ottinger v. Morris, 187 Okla.517, 104 P.2d 254 (1939).1. MIss. CODE § 8219 (1942) provides: "No person driving or in charge of amotor vehicle shall permit it to stand unattended without first stopping the engine,locking the ignition and removing the key ..... Other "car key" statutes are: ALA. CODEtit. 36 § 27 (Supp. 1953): AEK. STAT. ANN. § 75-651 (1947); COLO. Rev. STAT.c. 13-4-76 (1953); TRAFFIC AND MOTOR VEHICLE REGULATIONS FOR THE DISTRICTOF COLUMBIA § 5N; iDAIIO CODE ANN. § 49-560.1 (Supp. 1953); ILL. REv. STAT. c. 95 ,§ 189 (1953); IND. ANN. STAT. § 47-2124 (1952); Ky. REv. STAT. § 189.430 (1953);MD. ANN. CODE GEM. LAws art. 66 , § 212 (1951); N.M. STAT. ANN. c. 64-6-105(1953); S.C. CODE ANN. § 46-491 (1952); WYo. COMP. STAT. ANN. § 60-530 (1945).2. Three justices dissented.3. Berman v. Schultz, 84 N.Y. Supp. 292 (1903); Martin v. Herzog, 228 N.Y.164, 126 N.E. 14 (1920); Schell v. DuBois, 94 Ohio St. 93, 113 N. E. 664 (1916).4. See note I supra.5. Richards v. Stanley, 43 Cal. App. 2d 58, 271 P.2d 23 (1954); Sullivan v.Griffin, 318 Mass. 358, 61 N.E.2d 330 (1945).6. In the absence of statute the owner is not liable for the negligent operationof the vehicle by a thief. Midkiff v. Watkins, 126 La. 449, 52 So.2d 573 (1951);Saracco v. Lyttle, 11 N.J. Super. 254, 78 A.2d 288 (App. Div. 1951). Contra, Shaff v.Claxton, 144F.2d 532 (D.C. Cir. 1944).

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Agency -- Independent Contractors -- Newsboys

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