## Facts

- Carl Smith, a farmer, hired Rene Hinojosa to haul grain from Smith’s farm to a grain elevator for storage.
- Smith paid Hinojosa based on the amount of grain hauled (by the load/quantity), not by the hour.
- Smith did not withhold payroll taxes for Hinojosa and did not provide employment-type benefits.
- Hinojosa supplied his own truck, paid operating expenses, and was responsible for maintenance and upkeep.
- On July 2, 1984, while Hinojosa was transporting a load of grain to the elevator, a shovel fell from his truck.
- Hinojosa stopped the truck to retrieve the shovel.
- Mark Henson collided with the rear of the stopped truck and was killed.
- Barbara Sherard, Henson’s mother, sued Smith for wrongful death, alleging Smith was vicariously liable for Hinojosa’s negligence as Smith’s employee or agent.
- Smith moved for summary judgment, contending Hinojosa was an independent contractor and Smith therefore had no vicarious liability.
- The trial court granted summary judgment for Smith, and Sherard appealed.

## Issues

1. Whether the summary-judgment evidence established, as a matter of law, that Hinojosa was an independent contractor (not Smith’s employee/agent), defeating Sherard’s respondeat superior theory.
2. Whether a negligent-hiring theory was properly presented for appellate review where the briefing focused on vicarious liability based on an alleged employment/agency relationship.

## Decision

- The court of appeals affirmed the trial court’s summary judgment for Smith.
- The court held the summary-judgment record showed no genuine issue of material fact on Smith’s right to control the details of Hinojosa’s hauling work.
- Because Smith lacked the right to control the manner and means of Hinojosa’s performance (including the details of operating the truck), Hinojosa was an independent contractor as a matter of law and Smith could not be vicariously liable for Hinojosa’s alleged negligence.
- Although Sherard’s point of error was broad enough to suggest negligent hiring, the court treated the appeal as arguing only respondeat superior based on an employer-employee or agency relationship and did not reach a separate negligent-hiring analysis.

## Legal Principles

- A principal is generally not vicariously liable for the torts of an independent contractor.
- The primary test distinguishing an employee from an independent contractor is whether the alleged employer has the right to control the manner, means, and details of the work, not merely the final result.
- Factors commonly considered include: the worker’s independent business, who furnishes and maintains necessary equipment, the method of payment (by job/load versus by time), and whether taxes/benefits typical of employment are provided.
- Summary judgment is proper when the movant establishes there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law; on review, the court considers the evidence in the light most favorable to the nonmovant.
- Appellate courts generally address issues that are adequately briefed and supported by argument; a theory not substantively argued may be treated as not presented.

## Conclusion

Sherard v. Smith affirmed summary judgment for the farmer because the undisputed evidence showed the grain hauler used his own truck, was paid by the load without employment benefits or tax withholding, and—most importantly—Smith did not retain the right to control the details of the hauling and driving, making the hauler an independent contractor and defeating respondeat superior liability for the fatal collision.


Sherard v. Smith, 778 S.W.2d 546 (1989)