Opinion
1 Div. 250.
June 29, 1937. Rehearing Denied October 5, 1937. Affirmed on Mandate January 11, 1938.
Appeal from Circuit Court, Mobile County; Claude A. Grayson, Judge.
Garnishment suit by James F. Daves and John W. Daves, doing business as Industrial Finance Company, plaintiff, against B. A. Lyons, defendant, B. C. Rain, secretary and treasurer of the board of school commissioners of Mobile county, garnishee. From a judgment discharging the garnishee, plaintiffs appeal.
Reversed and remanded.
Certiorari granted by Supreme Court in Ex parte Board of School Commissioners, 235 Ala. 82, 178 So. 63.
The purpose of this proceeding was to subject to garnishment compensation due from the board of school commissioners of Mobile county to B. A. Lyons, a judgment debtor of plaintiff, under Code 1923, § 8088. The board, through its secretary-treasurer (appellee) answered that the garnishee was not indebted to defendant for salary, but was indebted to him under a contract, and dissented to the garnishment.
On oral answer the trial court discharged the garnishee, and plaintiff appeals.
On the trial there was introduced a school bus transportation contract between the board of school commissioners of Mobile county, Ala., first party, called the board, and Blumer Lyons, called the contractor, and providing in pertinent part as follows:
By paragraph 1 the contractor agrees to transport, during the term of the contract, to and from the Baker School, all pupils who live at a specified distance therefrom, and along or adjacent to the route specified.
Paragraph 2 fixes the term of the contract at five years.
Paragraph 3 is as follows: "The School Board shall pay to the contractor, for the services well and truly performed by the contractor under and in accordance with the terms of this contract, the sum of $98.00 per calendar month, payable on the first day of each calendar month for the services performed during the preceding month but subject to the qualifications in this contract contained. The term of the contract is for five calendar years but school is not held during all the calendar months of each calendar year. There is contemplated by the parties the rendering of services by the contractor, and the payment therefor by the School Board, only during the school months in each calendar year. There shall be no payments earned nor made during the vacation period between the ending of the school year at the end of Spring or beginning of Summer, and the beginning of the school year in the month of September of the following Fall or Autumn. Should there be services rendered for only a fraction of a calendar year, at the close of the said school year, the payment shall be not on the basis of a full month, but on the ratio of a full month's pay that the number of days of service in the said calendar month bear to the whole number of days in that month; and so with the services rendered during the month of September in each year, which month also will be only a partial month of service."
Paragraph 4 provides that the contractor shall furnish a truck chassis, and the board a bus body, for the transportation unit.
Paragraph 5 prescribes the route to be followed by the bus; paragraph 6 reserves the right of increasing or reducing mileage, with corresponding adjustment of compensation. Paragraph 7 fixes the schedule of the bus, with right of alteration in the principal of the school. Paragraph 9 provides that the contractor shall furnish a chauffeur or driver of the bus, and shall pay all necessary costs of operation, including fuel, oil, and upkeep. Paragraph 10 provides for the speed of the bus, and paragraph 11 provides against the use of the bus by the contractor for other than school transportation purposes. Paragraph 12 provides for storage and housing of the bus by the contractor. Paragraph 13 requires the contractor to make repairs to the bus and keep it washed. Paragraph 14 requires the contractor to repaint the bus annually as is necessary and at his expense.
Paragraph 15 is as follows:
"It is agreed that the Board shall procure to be issued a policy or policies, of casualty insurance, to protect the contractor against liability for personal injury to others and liability for damage to the property of others, which policy, or policies, shall also protect the Board in the same way, if there be any liability on the Board. The Board shall pay the premium on the said policy or policies.
"To forestall the possible drawing of erroneous inferences from this article of the contract, it is hereby expressly agreed and declared that it is the understanding of the parties hereto, that the contractor, in the performance of this contract, is not an agent or servant or employee of the Board, but is an independent contractor for whose acts no liability could rest on the Board even if the Board could be held liable like a private corporation. And the Board hereby again declares that it is an arm of the State and is not subject to suit or other adversary effort to enforce asserted liability."
Paragraph 16 provides that the driver of the bus may be the contractor or other person of suitable age and discretion, either of whom shall observe and enforce all rules affecting the pupils and operation of the bus, traffic laws and rules of the road — the contractor to make such reports as may be required from time to time.
Paragraph 17 is as follows:
"It is specifically agreed by the parties that this contract may be rescinded and the transportation thereunder discontinued in, under or upon the following contingencies:
"(a) When, in the judgment of the Board, the number of pupils transported over the route contemplated by this contract, does not warrant its continuance.
"(b) When, in the judgment of the Board, one or more routes can be consolidated, or one route be advantageously absorbed in another route.
"(c) When the Board is of opinion that the contractor, in the performance of his duties, has engaged in, or permitted his employee or employees to engage in, immoral or improper conduct; or has been so inattentive to duty, or is so incompetent, as to frustrate the contract as a satisfactory business and public venture so long as that contractor is retained.
"(d) If and when the Board should be of opinion, and should conclude, that the public educational interest of the county makes it advisable that the transportation of children to and from school should be engaged in by the Board itself as the transportation agency rather than letting out to private persons such transportation.
"The Board shall be the sole judge in determining whether or not ground for rescission exists.
"It is expressly agreed by the parties that the payments for services during the time that the contract should be in force, is a consideration sustaining and upholding the entire contract."
Paragraph 18 provides for compensation, through arbitration, of the contractor on account of loss accruing on account of rescinding the contract on grounds (a) (b) or (d) set out in paragraph 17.
Paragraph 19 provides for penalties to be imposed upon the contractor on account of delays or failures in the schedule. Paragraph 20 relates further to the schedule. Paragraph 21 provides for inspections of the bus, and for the needed corrections or repairs to be made by the contractor. Paragraph 22 provides that the contract shall not be assignable or transferrable save with written consent of the board. Paragraph 23 prescribes a bond by the contractor, and paragraph 24 incorporates as a part of the contract transportation rules and regulations attached thereto.
Francis H. Inge and Inge, Stallworth Inge, all of Mobile, for appellants.
The reserved right of control furnishes the true test of whether the relationship between the parties is that of an independent contractor or of employer and employe-master and servant. Labatt, M. S. 56; 31 C.J. 473; Martin v. Republic Steel Co., 226 Ala. 209, 146 So. 276; Tuscaloosa Veneer Co. v. Martin, 233 Ala. 567, 172 So. 608; Birmingham Post Co. v. Sturgeon, 227 Ala. 162, 149 So. 74; Brown Sons Lumber Co. v. Crossley, 230 Ala. 403, 161 So. 536; Aldrich v. Tyler Gro. Co., 206 Ala. 138, 89 So. 289, 17 A.L.R. 617; General Exch. Ins. Corp. v. Findlay, 219 Ala. 193, 121 So. 710; Republic I. S. Co. v. McLaughlin, 200 Ala. 204, 75 So. 962. The contract in evidence establishing the reservation of control and domination of the School Board over the means and manner of the doing of the work by Lyons thereby constitutes him an employe of the Board. Authorities, supra. That the contract gave Lyons the right to furnish a substitute driver in his place does not operate to prevent Lyons being an employe of the Board. Martin v. Republic Steel Co., supra; Tuscaloosa Veneer Co. v. Martin, supra. The compensation payable to Lyons under the contract is salary within the meaning of Code 1923, §§ 8088, 8090. Smith v. Mobile, 230 Ala. 584, 162 So. 361.
Pillans, Cawley Gresham, of Mobile, for appellee.
The School Board is a public corporation, and public corporations are not liable to garnishment unless included in unequivocal terms by the letter of an appropriate statute. Central of Ga. R. Co. v. Andalusia, 218 Ala. 511, 119 So. 236. Unless Lyons be an official or employe of the Board, the garnishment must fail. Code, § 8088. The contract is clearly a carriage contract, and not a hiring of Lyons as a servant by the Board. The relationship between the parties is not that of employer and employe; Lyons is an independent contractor. The fact that right of supervision and control of work is retained, nor periodical payments of fixed sum is sufficient to change the relationship. Harris v. McNamara, 97 Ala. 181, 12 So. 103; Hubbard v. Coffin Leak, 191 Ala. 494, 67 So. 697; Porter v. Tennessee C., I. R. Co., 177 Ala. 406, 59 So. 255; United States C. I. P. F. Co. v. Fuller, 212 Ala. 177, 102 So. 25; Birmingham Post Co. v. Sturgeon, 227 Ala. 162, 149 So. 74; Gall v. Detroit Journal Co., 191 Mich. 405, 158 N.W. 36, 19 A.L.R. 1164; Casement v. Brown, 148 U.S. 615, 13 S.Ct. 672, 37 L.Ed. 582; Alabama M. R. Co. v. Martin, 100 Ala. 511, 513, 14 So. 401; Harding v. Boston, 163 Mass. 14, 39 N.E. 411; School Dist. of City of Erie v. Fuess, 98 Pa. 600, 42 Am.Rep. 627; Chicago H. P. B. Co. v. Campbell, 116 Ill. App. 322; Cohen v. Western Electric Co., 50 Misc. 660, 99 N.Y.S. 525; St. Louis S. F. R. Co. v. Madden, 77 Kan. 80, 93 P. 586, 17 L.R.A., N.S., 788; Uppington v. New York, 165 N.Y. 222, 59 N.E. 91, 53 L.R.A. 550; Larson v. Metropolitan St. Ry. Co., 110 Mo. 234, 19 S.W. 416, 16 L.R.A. 330, 33 Am.St.Rep. 439; Arkansas Nat. Gas Co. v. Miller, 105 Ark. 477, 152 S.W. 147; Swansea Lease, Inc., v. Molloy, 20 Ariz. 531, 183 P. 740; Powley v. Vivian Co., 169 App. Div. 170, 154 N.Y.S. 426; 20 A.L.R. 693; Moll, Ind.Contr. 85; Burns v. Mich. Paint Co., 152 Mich. 613, 116 N.W. 182, 16 L.R.A., N.S., 816; Emmerson v. Fay, 94 Va. 60, 26 S.E. 386; Ryan v. County Council, 46 Irish L.T. 69; Walsh v. Harbor Com., 47 Irish L.T. 263; Foster v. Chicago, 197 Ill. 264, 64 N.E. 322.
This is the second appeal in this case. The opinion on the former appeal will be found in Daves et al. v. Rain, 26 Ala. App. 380, 161 So. 107, certiorari denied Ex parte Board of School Commissioners of Mobile County, Ala., 230 Ala. 304, 161 So. 108.
On that appeal the question was whether or not the board of school commissioners of Mobile county could be made to answer as garnishee under section 8088 of the Code of 1923. In that appeal all of the questions incident to the litigation were settled except the one question presented on this appeal, which is: What was the relation between the board of school commissioners of Mobile county and B. A. Lyons, the defendant in the original suit; i. e., was Lyons an independent contractor or an employee under a contract entered into by and between the parties set out in the bill of exceptions? That being the sole controversy now being litigated and brought to this court for review.
The present action was not brought under the "Employer's Liability Act," and, therefore, the question as to who did, or did not, constitute an employee under that act may not now be a material factor; for the reason, that the "Employer's Liability Act" defines both an employee and an employer. Section 7596 of the Code of 1923 defines very minutely what is an employer and what is an employee, and our Supreme Court in Sloss-Sheffield Steel Iron Company v. Crim, 219 Ala. 148, 121 So. 408 and in Ex parte W. T. Smith Lumber Company, 206 Ala. 485, 90 So. 807, have recognized the statutory definition as applying to contracts under the "Employer's Liability Act," but those definitions have never been extended beyond cases of that character.
In a construction of the contract in the instant case, therefore, we must be governed by the rules of the common law in a determination of whether the contract in this case creates the relation of an independent contractor or that of master and servant.
"Generally speaking, the term 'independent contractor' signifies one, who, exercising an independent employment, contracts to do a piece of work according to his own methods, and without being subject to the control of his employer, except as to the result of the work." 31 Corpus Juris, 473, note 25. In Martin v. Republic Steel Co., 226 Ala. 209-211, 146 So. 276, Mr. Justice Knight stated the foregoing rule with approval, citing many authorities to sustain that holding, and then proceeds to differentiate the rule of the common law from that of the statutory rule set up by the Legislature in its definition of an employer and an employee. Of course, wherever the Legislature has given a definition, that definition must prevail over the common law, and becomes the law in cases governed by the statute in which such rule controls. But, as to other cases not coming within the purview of the "Employer's Liability Act" the common law still obtains and the rule is as stated hereinabove and reaffirmed in the Martin Case, supra.
In the contract of employment is found the following clause: "To forestall the possible drawing of erroneous inferences from this Article of the contract, it is hereby expressly agreed and declared that it is the understanding of the parties hereto, that the Contractor, in the performance of this contract, is not an agent or servant or employee of the Board, but is an independent contractor for whose acts no liability could rest on the Board, even if the Board could be held liable like a private corporation. And the Board hereby declares again, that it is an arm of the State and is not subject to suit or other adversary effort to enforce asserted liability."
The fact that the parties have designated the employee under the contract as an independent contractor, does not, of itself, determine the character of the relationship. As was declared in Brown Sons Lumber Co. v. Crossley, 230 Ala. 403-405, 161 So. 536, 537: "That question is controlled by the circumstances without an expression in the contract. But all the circumstances should be considered, even when the contract makes clear provision for an absence of such control, to ascertain if its stipulations are merely colorable to enable the master to evade liability to a servant under this law."
The relationship of the parties as to whether Lyons was an independent contractor or, an employee of the board, is to be gathered from the entire contract, and if it appears from such consideration that Lyons is an employee, it must be so declared, although there is a definite expression in the contract that he is an independent contractor.
It is pointed out in brief of appellee that in rendering service under the contract Lyons agreed and did furnish the chassis and motor for the school bus used in the transportation of the children, and that he also furnished the gas and oil. But this is not a determining factor in construing the contract. The fact that the servant makes use of his own property in performing the service for the master does not prevent the relationship of that being master and servant. 39 Corpus Juris, 37 (7) e. This principal was so recognized in the case of Tuscaloosa Veneer Co. et al. v. Martin, 233 Ala. 567, 172 So. 608.
It is the general rule of the common law that the relationship of master and servant exists whenever the employer retains 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. Inasmuch as the right to control involves the power to discharge, the existence of the power to discharge is essential, and is an indicium of relationship. The above is paraphrased from the text of 39 Corpus Juris, 35 (4) c, where many cases from this and other jurisdictions are collated under note 23. One of which is the case of the Ala. Fuel Co., etc., v. Smith, 203 Ala. 70, 82 So. 30, which supports the foregoing statement of the rule.
After a careful consideration of this contract, and applying the rules relative to this class of cases, we have reached the conclusion that the contract was one of employment and creates the relationship of master and servant.
It therefore follows that the court erred to a reversal in its rulings contrary to the above, and for that error the judgment is reversed and the cause is remanded.
Reversed and remanded.
Affirmed on authority of Ex parte Board of School Commissioners, 235 Ala. 82, 178 So. 63.