Rehearing and Rehearing En Banc Denied August 18, 1978.
TALBOT SMITH, Senior District Judge.
The case presented arises out of an automobile accident. It comes to the federal courts under our diversity jurisdiction.
The District Court
With respect to Armour three general legal theories are advanced for recovery: a) respondeat superior, b) joint venture, and c) enterprise liability, plaintiff including therein what he referred to as "negligent entrustment or mere instrumentality rule."
We recognize at the outset, as we recently held
Armour operated a meat processing plant at Memphis, Tennessee, where hogs and cattle were slaughtered and processed. It required substantial quantities of livestock for these operations. It did not, however, haul livestock on the hoof. For purposes of such supply some seventy to eighty different carriers have hauled livestock to it over the past decade.
The acquisition of cattle by defendant Armour and Company as distinct from hogs,
Mr. Price received an order from Mr. King, Armour's head cattle buyer, for cattle of a certain grade to be purchased at a certain price. Mr. Price arranged the purchase of two truckloads from an Illinois auction barn. He then called J.J. Truck Line (hereafter J.J.) of Memphis to deliver the cattle to Armour's slaughter house and meat processing plant in the Memphis stockyards in Memphis, Tennessee.
The plaintiff concedes that the burden is on him "to establish the existence of an agency relationship between Armour and the other defendants,"
The Missouri Supreme Court has defined an independent contractor as "a person who contracts with another to do something for him, but who is not controlled by the other nor subject to the other's right to control
The relationships between the principal parties before us are controlling in our determination of the questions presented, and we have examined them in detail. Mr. King, Armour's head cattle buyer, was not significantly involved. He contacted Mr. Price, a cattle buyer who buys and sells for many packers, some eight to ten in number, including Armour, and ordered certain cattle. The ordered cattle were purchased, paid for by Price, following the parties' usual practice, and resold, upon delivery in Memphis, to the Armour facility. It was the cattle buyer's obligation to deliver the cattle in what is referred to as "delivered condition," i. e., the buyer was to arrange for and provide delivery to Armour. He retained title and constructive possession until he was paid.
When the load reached its destination in Memphis, a printed form supplied by Armour was made out. Entitled "Motor Carrier Livestock Contract," the form listed the weight of the cattle, where they were from, who hauled them, and the freight rate. This computation went to the "main office," and Armour issued its check for the amount owed by it.
On the reverse side of the form the carrier agrees that the transportation "is performed in accordance with the exemption contained in Part II Section 203(b) par. 6 of the Interstate Commerce Act" and further agrees that "no non-exempt tonnage will be transported with Armour loads."
It is clear that the form employed by Armour is a recordkeeping device. It is not a contract for transportation. It is not filled out until the trip is over. But even if it were a contract for transportation neither it nor any other element in the evidence in the case suggests control by Armour. The regulations on the back of this form emanate from Federal regulation, not from Armour.
Armour had no control over the order buyer's arrangement of transportation. In particular, it did not tell Price whom to use for transportation, he being free to choose carriers of his choice, though most of the time he used J.J. Armour did not know when or whether Price had filled an order, or whether Price had called J.J., or anyone else, to transport it.
It is clear on this record that Armour had nothing to do with Price's choice of J.J. for this load. Price testified that he gave J.J. most of the trucking "because he gave me good service." Armour paid the freight as part of the negotiated "deal." Plaintiff argues that Price was Armour's "agent" with authority to arrange delivery. There
Id. at 60 (citations omitted). Likewise in Coul v. George B. Peck Dry Goods Co., 326 Mo. 870, 874, 32 S.W.2d 758, 759 (1930) (en banc) the court stated
Against all of this plaintiff counters with general principles of agency, with which we have no quarrel. But nothing specific, applicable to this particular incident, is cited to us.
Examination of the record negates the plaintiff's claim of an agency relationship between Armour and J.J. The trucking line was operated by Mr. Jackson, with his wife's aid. Jackson had no partners. He owned and operated the equipment, both tractors and trailers, and maintained the machines in his own shop. He hired and fired and set the operating schedules. He solicited employment on a daily basis from Armour and some three or four other packers in the area, although Armour hauls comprised a large part of J.J.'s business. These packers he served on a "first come, first served" basis, rejecting latecomers, Armour as well as others, if J.J. was already employed to capacity. He had various regulatory permits, in his own name, where such permits were required.
In all of this we find no control by Armour over or any right to control J.J.'s trucking. The nearest approach to "control" over J.J. was the carrier's acquiescence in Armour's occasional request that the load be delivered (if short of stock) in time for the "morning kill." This is a matter of scheduling, and at the most pertains to the result to be attained in the job undertaken, not in the details of its accomplishment.
The short of it is that J.J. was an independent trucker, uncontrolled by Armour,
Plaintiff, in arguing that "a colorable claim based upon principles of respondeat superior is made" invites our attention to several factors, among others, the large volume of business done by J.J. for Armour. But the critical inquiry in this area is not volume but whether the business, whatever its volume, is done under the control of the employer, or under his "right to control." The element of control required must extend to the "means and manner of service" as distinguished from controlling the "ultimate results of the service."
The plaintiff argues that Armour "could be held liable if it were found that it failed to exercise reasonable care in selecting a competent, experienced, and careful cattle hauler and driver."
It is argued, as well, that a joint enterprise existed between Armour and J.J. Truck Line. The primary problem here, as respects the imposition of liability against Armour, lies in the deficiencies in the facts. There are no facts supporting plaintiff's claim of a "mutual right to a voice in the direction of the hauling enterprise."
It would serve no useful purpose to dissect the host of cases submitted to us in view of our holdings as heretofore stated. The plain fact of the matter is that there is no evidence that Armour either had control or the right to control the truck involved in this accident, or that it possessed or exercised any other quality or characteristic of supervision or participation that would justify a holding of vicarious liability under the applicable precedents.