# Philabert v. Frazier

> Alabama Court of Appeals · December 19, 1950 · 35 Ala. App. 549

URL: https://www.frixlaw.com/law-library/cases/6524913

## Case

- **Full name:** PHILABERT v. FRAZIER
- **Court:** Alabama Court of Appeals
- **Decided:** December 19, 1950
- **Citations:** 35 Ala. App. 549; 51 So. 2d 381; 1950 Ala. App. LEXIS 485
- **Precedential status:** Published
- **Opinion:** On rehearing
- **Judges:** Carr
- **Cited by:** 2 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/6524913

## Opinion text

On Rehearing.
Appellee’s counsel in brief on application for rehearing urgently requests us to set out certain portions of testimony appearing in the record. We realize that this will extend this opinion to undue length, however, out of deference to this insistence, we will comply with the request, omitting the objections of counsel and rulings thereon.
Testimony of Vester Gamble:
“Q. Who did Mr. Paul Gilliam work for in January, 1944?
“Q. Do you know who he worked for? A. Yes, sir.
“Q. Who did he work for ? A. Chemical Solvent Company.”
“Q. Is that the same Paul Gilliam that you stated was the representative of Mr. Frank Philabert doing business as Chemical Solvent Company? A. Yes, sir.”
*555 “Q. Did he have any equipment in there that you recognized? A. He had equipment that he checked your brine for acid, etc.
“Q. Now you had seen that same equipment before? A. Yes, sir.
“Q. Where had you seen it before ? A. He brings it in with him.
“Q. When he calls on you? A. Yes, sir.
“Q. And checks your brine? A. Yes, sir, that is his regular routine.
“Q. You say you saw an order book in the car that night when you pulled him out? A. Yes, sir.
“Q. Was that an order book for the Chemical Solvent Company? A. Yes, sir.
“Q. You had seen that order book before? A. Oh, sure.
“Q. And you had seen him write orders in that order book? A. Yes, sir.
“Q. Were those orders that you saw him write for Frank Philabert doing business as Chemical Solvent Company? A. Yes, sir.”
“Q. Mr. Gamble, this morning you testified that Paul Gilliam was employed by the Chemical Solvent Company, and that he called on you as representing them at the time of this accident.”
Testimony of Paul Gilliam:
“Q. And as a result you would call on them about the time' they needed some ? A. Yes.
“Q. And as a result your trips would be about the same every time? A. No, sir.
“Q. You would come about once a month or once every two months? A. We tried to.
“Q. As best you could you tried to make that regular schedule? A. Yes, sir.
“Q. That was to your benefit and people you sold to? A. Yes, sir.'
“Q. And the Chemical Solvent Company?
“Q. That was so you could sell more of their chemicals? A. Yes.”
“Q. That’s right. In the course of studying that you were studying Mr. Philabert’s particular products? A. Yes.
“Q. So you could be in better position to sell them to the people you were going to sell? A. Yes.
“Q. And your father and Mr. Philabert helped train you? A. My father did, not Mr. Philabert.
“Q. Mr. Philabert talked to you about his line and how much commission you were to get? A. Yes.
“Q. Mr. Philabert owned that business ? A. I suppose so, yes.
“Q. And you had to sell what Mr. Philabert had to deliver? A. Yes, sir.
“Q. You couldn’t sell anything except what Chemical Solvent Company could deliver tO' the customers, could you? A. No, sir.
“Q. Therefore Mr. Philabert had to let you know what to sell? A. We knew what products he handled, yes, sir, and we sold their products.
“Q. And he gave you literature? A. Yes.
“Q: He set the prices ? A. Yes, sir.
“Q. You didn’t set the prices you sold? A. No, sir.
“Q. You just drew a commission for selling it? A. Yes.
“Q. For the products you sold you would send in an order? A. Yes.
“Q. Send it to Mr. Pjiilabert doing business as Chemical Solvent Company ? A. Yes, sir.
“Q. He would deliver the order? A. Yes, sir.
‘'Q. And Mr. Philabert would pay you? A. Yes, sir.”
“Q. These orders that you sent in for these different concerns, you would go to these different points by automobile, wouldn’t you? A. Yes, sir.
“Q. And the Chemical Solvent Company office knew you wasn’t walking to those three states?
“Q. Don’t you think they knew you wasn’t walking? A. I suppose they did.
*556 “Q. Don’t you know they supposed you were riding in an automobile? A. Yes, sir.”
“Q. When you made calls and called on a customer, did it happen that maybe times these customers after you made a call would send in an order through the mail? A. Yes, sir.
“Q. Would you get credit for that order? A. Yes, sir.
“Q. Would you get commission on that sale? A. Yes, sir.”
"Q. You say any customer or anybody that sent in an order to the Chemical Solvent Company in Birmingham in your territory you got a commission for it? A. Yes, sir.
“Q. Whether you went to see him or not? A. If I called on him one time or another.
“Q. You got the commission whether you sold him at that particular time or not? A. Yes.”
Testimony of C. W. Gilliam:
“Q. Mr. Philabert knows you traveled by car, doesn’t he? A. Yes.”
“Q. He has a right to determine the type men that is going to sell his products? A. That is entirely in Mr. Philabert’s province.”
“Q. You say you know all of that? A. I said I know that he divided the commissions with me.
“Q. You know how he and Mr. Philabert handled the commissions after that? A. No.”
Testimony of W. L. Bankston:
“Q.- His arrangement with Paul Gilliam was if he sent in an order that wasn’t acceptable to Mr. Philabert, Mr. Philabert could turn the order down ? A. Yes.”
Testimony of Frank Philabert:
“Q. Did somebody else decide who was to represent your Company? A. No, sir, it was strictly my own.”
“Q. When a sale is made by Mr. Gilliam or when one was made by Paul Gilliam to anybody it was up to you to collect from the customer, wasn’t it? A. Yes; sir.”
. “Q. Mr. Gilliam didn’t do the collecting ? A. No, sir.”
. “Q. If Paul Gilliam sent an order in from Vester Gamble and you had not wanted him to sell to Vester Gamble you could have refused to ship it, couldn’t you? A. I imagine so.”
Testimony of Walter Gamble:
“Q. Did he come to visit you on regular intervals? A. Yes, sir.
“Q. And took orders on order blanks for Chemical Solvent Company? A. That’s right.
“Q.. Plow long, in your judgment, would you say he made those calls prior to January -3, 1944? A. For several months. It would be hard to say the amount of time but several months.
“Q. In your judgment was it close to a year? A. I would think so.
“Q. When he would come would he do anything other than take orders? A. Yeah, he would check the brine. They had a brine apparatus that they would check your brine to see what you needed in that, and check that with the idea of selling chemicals for water treatment.
“Q. That was a service that he would regularly perform with a machine? A. That was free service they did to tell whether you needed the stuff or not.
“Q. Any orders that you all gave him were filled? A. Yes, sir. '
“Q‘. Who did you pay for them? A. Chemical Solvent Company.”
Testimony of Vester Gamble:
“Q. Prior to January 3, 1944, did Paul Gilliam take orders for the Chemical Solvent Company of Birmingham? A. Yes.
■ “Q. Did he do that on more than one occasion? A. Yes, sir. In fact he took care of our needs there for about a year.'
“Q. For about a year he took care of your needs for the Chemical Solvent Company? A. Yes, sir.”
“Q. Mr. Gamble, did Paul Gilliam go to work with the railroad company after this collision? A. That was my knowledge that he went to work for the railroad after that time.
*557 “Q. And wasn’t working for them at that time.? A. No, sir.”
“Q. You say you wouldn’t have given him any orders if you hadn’t known he was working for the Chemical Solvent Company ? A. Sure. He knows he was working for them.”
This evidence was carefully considered by us when we prepared the original opinion. We still entertain the view that the defendant was entitled to the general affirmative charge.
The application for rehearing is overruled.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/6524913. Public record. Not legal advice.