Newspapers, Inc. v. Love

ON MOTION FOR REHEARING

NORVELL, Justice.

The philosophic basis for vicarious liability under the doctrine of respondeat superior does not rest upon one universally accepted theory. However, as pointed out by Philip Mechem, the rule “must satisfy some instinct of public policy, else it would not have survived so long and so vigorously.” Mechem, Outlines of Agency, § 351.

Mechem also discusses various notions advanced to support the respondeat superior rule, including, among others, the En-terpriser or “Entrepreneur” theory which proceeds upon the premise that as every industry takes a more or less predictable annual toll, both of property and in flesh and blood, such toll or loss should be treated as a business cost. Mechem, § 359. This would logically raise the question of what is an industry or enterprise. Business operations may involve a myriad of activities. What is the component we should select as being the unit upon which vicarious liability should be imposed as a matter of policy? Is newspaper distribution a part of newspaper publishing, or is it an enterprise separate and apart therefrom? Is there a valid distinction between the operator of a newsstand on a city street and a distributor of newspapers in a rural area? In solving these problems, it has been suggested that some weight should be given to the practices and customs of the occupations involved and the general public attitude toward such gainful activities.

*598 Usually, we do not think of one in domestic service as being in any other category than that of a servant; nor do we ordinarily consider a television repairman as being anything other than an independent contractor in his relationship to the householder who requires his services. This is true even though the employer, in one instance, gives no direction as to cleaning a house, or, in the other instance, the employing householder is quite specific as to the details of testing tubes, amplifiers and the like. The concept of control is often an elusive thing, Mechem §§ 414 et seq., and under certain circumstances the prevailing legal test of “control of the details of the work” may leave something to be desired in differentiating between the servant and the independent contractor.

However that may be, it is certain that in a contractual agency, vicarious liability is founded upon the status created by the agreement. Important legal rights and consequences are predicated upon the relationship thus created, such as liability for social security taxes, the right to workmen’s compensation benefits, the responsibility of the master for the torts of the servant, and the like. As long as we say that newspaper distribution may be accomplished by either the employment of an independent contractor or a servant, it becomes highly important that the jury as the trier of facts be properly instructed in regard to the distinguishing feature between the servant and the independent contractor, which under present standards depends upon whether or not the employer has the right to control the details of the work. It is not determined by sporadic acts of control.

The focal point of inquiry relates to the actual operative agreement as it existed at the time of the event upon which liability is sought to be imposed. If such agreement at that time created the status of master and servant between the parties, then the law, as a matter of public policy, will hold the master accountable for the wrongful acts of the servant. We again emphasize that this is not a case where the supposed master was directly controlling the actions of the servant at the time of the commission of the act upon which the claim of liability is based.

It was stated at the beginning of the original opinion that the crucial issue in this case is whether the relationship of C. E. Cargile to Newspapers, Inc., was that of a servant or an independent contractor. A highly important evidentiary matter bearing directly upon the crucial or controlling issue is whether the written contract between Newspapers, Inc., and Cargile was a subterfuge or whether it had been abandoned in whole or in part insofar as the right to control the details of the work is concerned. While it is not our purpose to prescribe any set form of issue which should be submitted in this case or in those presenting similar factual situations, it has been suggested that when one of two alternatives must be correct, it is permissible to use an alternative or “rather than” form of submission, with correct instructions and definitions of terms and a proper placing of the burden of proof. Rule 277, Texas Rules of Civil Procedure; Rice v. Thompson, Tex.Civ.App. (1951), 239 S.W.2d 137 , n. r. e. Of course, two separate issues may be employed as was done in this case. Cf. McDonald, Texas Civil Practice, § 12.06. As indicated in Smith Bros. v. O’Bryan, (1936) 127 Tex. 439 , 94 S.W.2d 145 , the evidentiary elements of a case have an important bearing on the form of submission which should be employed.

We adhere to the views set forth in our original opinion, and respondent’s motion for rehearing is overruled. Labatt, Master and Servant (2d ed.), § 64.