Judith Studebaker was injured when a van driven by James Ferry collided with her vehicle. She brought an action against Nettie's Flower Garden, Inc. (Nettie's), on a respondeat superior theory in the belief that Ferry was Nettie's employee at the time of the accident. Nettie's defended that Ferry was an independent contractor, not an employee. From a judgment in favor of Studebaker for $125,000, Nettie's appealed.] CRANDALL, P. J.... ... Ferry delivered flowers for Nettie's from its main shop on Grand Avenue in the City of St. Louis. Ferry was paid, not by the hour, but at a rate of $2.50 to $3.00 per delivery. If there were no deliveries, he was not paid. He delivered only in an area of St. Louis which Nettie's designated as his territory.

Nettie's required him to make two runs each day: one in the morning at 9:30 A.M.; one in the afternoon at 1:30 P.M. When he arrived at the shop, he set up his own route based upon the location of the deliveries in his area. He generally got to work at 8:00 A.M. to prepare for the morning run and at 12:00 P.M. to prepare for the afternoon run. Nettie's also required Ferry to stop by its shop in downtown St. Louis at St. Louis Centre before noon each day to pick up items which needed to be transported to the Grand Avenue shop. After this stop, Ferry proceeded to the Grand Avenue shop for his afternoon run. Nettie's paid Ferry $5.00 for this stop, whether or not there was anything for him to take to the Grand Avenue shop.

Ferry used his own van for the deliveries; Nettie's required that it be heated and air-conditioned to protect the flowers and plants. Although he did not wear a uniform, Nettie's directed that Ferry be neat in appearance and that he conduct himself in a certain manner when on the job. If his behavior or appearance fell below its standards, Nettie's reprimanded Ferry. Ferry paid his own expenses and received no fringe benefits from Nettie's.

On August 9, 1989, the date of the accident in question, Ferry made his morning run and then his mid-day stop at the downtown shop at about 11:00 A.M. There was nothing for him to transport to the Grand Avenue shop. After Ferry left the downtown shop, he stopped at a pawn shop to conduct personal business. He then proceeded to the Grand Avenue shop to prepare for his afternoon run. On the way to the Grand Avenue shop, at approximately 11:45 A.M., Ferry's van collided with plaintiff's automobile....

Under the doctrine of respondeat superior an employer is liable for those negligent acts or omissions of his employee which are committed within the scope of his employment.... Liability based on respondeat superior requires some evidence that a master-servant relationship existed between the parties.... The test to determine if respondeat superior applies to a tort is whether the person sought to be charged as master had the right or power to control and direct the physical conduct of the other in the performance of the act....

If there was no right to control there is no liability; for those rendering services but retaining control over their own movements are not servants.... The master-servant relationship arises when the person charged as master has the right to direct the method by which the master's service is performed.... An additional inquiry is whether the person sought to be charged as the servant was engaged in the prosecution of his master's business and not simply whether the accident occurred during the time of employment....

Whether a party is liable under the doctrine of respon-deat superior depends on the facts and circumstances in evidence in each particular case and no single test is conclusive of the issue of the party's interest in the activity and his right of control....

Nettie's first asserts that, when the accident in question occurred, Ferry was not driving his vehicle to serve Nettie's business interests. It argues that Ferry was on his own time, conducting his own business.... Ferry's slight detour prior to the accident to conduct personal business did not mean that he was using his van exclusively for his independent purposes....

The object of Ferry's trip was not just to go to the pawn shop. At the time of the accident, Ferry was doing Nettie's business because he was returning to the Grand Avenue shop after making his routine mid-day stop at the downtown shop. This stop was so encompassed within his daily routine that it would be difficult to segregate it from his morning and afternoon runs. There was sufficient evidence for the jury to determine that at the time of the accident, Ferry was engaged primarily in advancing the business interests of Nettie's and thus was acting within the scope of his employment. Nettie's first point is denied. Nettie's further contends that there was no substantial evidence that Nettie's controlled or had the right to control Ferry at the time of the collision.

Whether or not the right of control existed in a particular case is ordinarily a question of fact for the jury.... In the instant action, Ferry furnished his own means of transportation; but it was mandatory that he have a vehicle to carry out his job responsibilities. Nettie's required that his vehicle be equipped with heating and air-conditioning systems. Nettie's also set standards for Ferry's dress and conduct while he was on the job, and monitored his compliance with these standards.

In addition, although Ferry mapped out his own route to deliver the flowers, Nettie's gave him the list of customers and determined his territory. Nettie's directed Ferry to make the mid-day stop at its downtown shop on a daily basis and paid him for that stop. Ferry incorporated that stop into his route. The stop usually occurred after his morning run and prior to his return trip to the Grand Avenue shop for his afternoon run. In addition, Nettie's always paid him for this stop, whether or not he transported anything. There was substantial evidence from which a jury reasonably could have found that, at the time of the accident in question, Nettie's either controlled or had the right to control the manner in which Ferry performed the duties for which he was employed. Nettie's second point is denied.

Case Questions

1. Did Nettie's control or have the right to control Ferry at the time of the collision?

2. Is not the fact that Ferry, just prior to the accident, had gone to a pawn shop compelling evidence that he was using his van exclusively for his independent purposes and was not acting within the course of his employer's business?

3. Give your opinion on the ethics of businesses converting employees to independent contractors to reduce or eliminate costs, such as health and retirement benefits, vacations, overtime, and maintenance and proper insurance of motor vehicles.