Carr ex rel. Carr v. Carr, 726 S.W.2d 932, 933 (Tenn. App. 1986). In determining liability under the theory of respondeat superior, the courts have recognized the decisive question to be whether the defendant had the power or right to control the wrongdoer's specific conduct or manner of doing work. Haupt, 34 Tenn. App. at 11, 232 S.W.2d at 602; Knight v. Hawkins, 26 Tenn. App. 448, 455, 173 S.W.2d 163, 166 (1941). The question of control is one of fact, and each case must depend on its own facts.
This Court has held that determining whether a worker is an employee or an independent contractor is a question of fact, and that "[e]ach case must depend on its own facts and ordinarily no one feature of the relation is determinative, but all must be considered together." Knight v. Hawkins, 173 S.W.2d 163, 166 (Tenn. Ct. App. 1941). However, over the years, "the importance of the right to control the conduct of the work has been repeatedly emphasized."
As shown above the right of the master to control the activities of the salesman or employee is the principal determining factor in such cases. The cases of Ely v. Rice Bros., 26 Tenn. App. 19, 167 S.W.2d 355; and Knight v. Hawkins, 26 Tenn. App. 448, 173 S.W.2d 163, and Tennessee Valley Appliances, Inc., v. Rowden, 24 Tenn. App. 487, 146 S.W.2d 845, are distinguishable from the case at bar upon this ground. In the Ely case the facts as stated by the court were that the defendants Rice Bros. Auto Company, "by the contract of employment, had control over the activities and mode of travel of Faircloth. It could and did require his presence on the used car lot, at least at opening and closing time and while there he performed services in defendant's interest.
The growth, development and application of the rule set forth in Sec. 250, Restatement of the Law of Agency, supra, is supported by the following cases and texts: Courier Journal Louisville Times Co., v. Akers, 295 Ky. 745, 175 S.W.2d 350; Knight v. Hawkins, 26 Tenn. App. 448, 173 S.W.2d 163; Nat'l Life Accident Ins. Co. v. Morrison, supra; American Nat'l Ins. Co. v. Denke, 128 Tex. 229, 95 S.W.2d 370, 107 A.L.R. 409; Henkelmann v. Metropolitan Life Ins. Co., 180 Md. 591, 26 A.2d 418; McCarthy v. Souther, 83 N.H. 29, 137 A. 445; Westcott v. Young, 275 Mass. 153, 175 N.E. 153; Haykl v. Drees, 247 App. Div. 90, 286 N.Y.S. 38; Atlas Life Ins. Co. of Tulsa v. Foraker, 196 Okl. 389, 165 P.2d 323; Redfield v. Chelsea Coal Co., 143 Kan. 480, 54 P.2d 975; Mitchell v. Maytag etc., Co., 184 Wn. 342, 51 P.2d 393; Harrington v. H.D. Lee Mercantile Co., 97 Mont. 40, 33 P.2d 553; Stockwell v. Morris, 46 Wyo. 1, 22 P.2d 189; Russell Products Co. v. Bailey, 162 Okl. 212, 19 P.2d 601; Counihan v. Lufstufka Bros. Co., 118 Cal.App. 602, 5 P.2d 694; See also: 140 A.L.R. 1151; 117 A.L.R. 621; 112 A.L.R. 921; Weslowski v. John Hancock Life Ins. Co., 308 Pa. 117, 162 A. 166, 87 A.L.R. 787; Khoury v. Edison Electric Illuminating Co., 265 Mass. 236, 164 N.E. 77, 60 A.L.R. 1163; Kennedy v. Unio
Determining whether a principal-agent relationship exists requires a careful analysis of the facts. See Bd. of Directors of Harriman Sch. Dist. v. Southwestern Petroleum Corp., 757 S.W.2d 669, 673 (Tenn.Ct.App. 1988); Knight v. Hawkins, 26 Tenn.App. 448, 457-58, 173 S.W.2d 163, 166-67 (1943). The Tennessee Supreme Court has held that the following factors should be considered when determining whether a person is an agent or an independent contractor: (1) the right to control the conduct of the work, (2) the right of termination, (3) the method of payment, (4) the freedom to select and hire helpers, (5) the furnishing of tools and equipment, (6) the self-scheduling of work hours, and (7) the freedom to render services to other entities.
In giving consideration to Mr. Perkins' statement that he did not lease the truck and the driver and that he exercised no control over the driver Yarbro or any other driver in the hauling of the cans by Waddell, we must remember that whether they actually exercised control or not is only incidental, but the question is: WHO under the agreement had the right to control physical details of the driver in the hauling of the cans? Who controlled or had the right to control? In the case of Income Life Insurance Co. v. Mitchell, 168 Tenn. 471, 79 S.W.2d 572, reaffirmed in the case of Knight v. Hawkins, 26 Tenn. App. 448, 173 S.W.2d 163, 166, it is said that the right to discharge, or the absence of such right, is a circumstance of much importance on determining whether the relationship of employer and employee exists, citing Odom v. Sanford Treadway et al., 156 Tenn. 202, 210, 299 S.W. 1045, 1047; and that when employment is shown, the burden is on the employer to establish an independent contractual relationship, citing Sledge v. Hunt, 157 Tenn. 606, 12 S.W.2d 529. Also in those cases the rule adopted from 14 R.C.L., Section 9, page 72 under the title, "Independent Contractors", was approved as follows:
"All these rules are guides to the proper conclusion from the contract and the situation and conduct of the parties." In Knight v. Hawkins, 26 Tenn. App. 448, 173 S.W.2d 163, 166, this Court quoted with approval from Odom v. Sanford Treadway, 156 Tenn. 202, 299 S.W. 1045, as follows: "It is impossible to lay down a rule by which the status of men working and contracting together can be definitely defined in all cases as employees or independent contractors.
Applying the foregoing tests to the disputed issues involved in this case, we think the question of whether Litton was, or was not, an independent contractor was for the jury. Tennessee Valley Appliances, Inc., v. Rowden, 24 Tenn. App. 487, 146 S.W.2d 845; Odom v. Sanford Treadway, supra; Gulf Refining Co. v. Huffman Weakley, 155 Tenn. 580, 297 S.W. 199; Knight v. Hawkins, 26 Tenn. App. 448, 173 S.W.2d 163; Austin v. Bridges, 3 Tenn. Civ. App. 151; 42 C.J.S. pages 638, 639. Under the proof it was not unreasonable for the jury to conclude (1) that Litton was an independent contractor, and (2) that Reese was not defendant's employee.