IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA

        2.    “Generally, if one let work, lawful within itself, to a contractor and retain no control over the manner of its performance, he is not liable on account of negligence of the contractor or his servants. But, if the work is intrinsically dangerous, or is of such character that injury to third persons, or to their property, might be reasonably expected to result directly from its performance, if reasonable care should be omitted, the employer is not relieved from liability by delegating the performance of the work to an independent contractor.” Syllabus Point 1, Walton v. Cherokee Colliery Co., 70 W.Va. 48, 73 S.E. 63 (1911).

        3.    “Where the evidence relative to whether a particular person is an independent contractor or an employee is in conflict or, if not in conflict, admits of more than one reasonable inference, an issue is presented for jury determination.” Syllabus Point 1, Levine v. Peoples Broadcasting Corp., 149 W.Va. 256, 140 S.E.2d 438 (1965).
        

Per Curiam:

        In this appeal from the Circuit Court of Harrison County, the circuit court held that a newspaper company could not have any liability to pay compensation for injuries caused by a newspaper delivery driver, because the driver was an “independent contractor.” We reverse and hold that the issue of the newspaper's possible liability is a jury matter.

        At the time of the accident, Mr. Winkler was delivering Clarksburg Exponent newspapers _ which are published by the Clarksburg Publishing Company, the appellee in this Court and defendant below _ to persons who subscribe to that newspaper. Mr. Winkler apparently delivered approximately 200 newspapers each day on what the company calls a “motor route” carrier delivery route, and for performing this work Mr. Winkler made about $850.00 a month. (See note 8 infra regarding further details of his compensation.)

        On January 17, 2001, Ms. Zirkle (individually and on behalf of her child, who was a passenger in the car she was driving) filed a lawsuit against Mr. Winkler in Harrison County, seeking compensation for medical bills and personal injuries that she and her child allegedly suffered in the accident; she claimed that Mr. Winkler's negligence caused the accident. She also sued the appellee Clarksburg Publishing, asserting that the appellee was liable for the results of Mr. Winkler's alleged negligence under the doctrine of respondeat superior.   (See footnote 1) 

        Clarksburg Publishing made a motion for summary judgment, asserting that the company as a matter of law could have no liability for the results of Mr. Winkler's alleged negligence _ because, the appellee claimed, Mr. Winkler was, at the time of the accident, an “independent contractor.” After a period of discovery, on November 14, 2001, the trial court granted Clarksburg Publishing's motion for summary judgment. From this order by the circuit court, Ms. Zirkle appeals. We discuss the other pertinent facts infra.

         The legal relationship of master and servant   (See footnote 2)  is commonly understood to arise when one person subordinately serves another, both consenting thereto. . . . The master is answerable to a stranger for the negligent act of a person employed by the [master or] master's authorized agent, if the act is within the scope of the person's employment.   (See footnote 3) 

        In Cochran v. Michaels, 110 W.Va. 127, 157 S.E. 173 (1931), Justice Hatcher undertook a scholarly review of the origin and purpose of the respondeat superior doctrine. He concluded that because the “rule combines in its support both principles of natural justice and public policy, we are of the opinion that it should be liberally applied in favor of those who invoke it.” 110 W.Va. at 131, 157 S.E. at 174. We see no reason to stray from this well-reasoned conclusion.

        Of similarly longstanding lineage is the “independent contractor” exception to the doctrine of respondeat superior. The parameters of that exception were stated in the Syllabus of Walton v. Cherokee Colliery Co., 70 W.Va. 48, 73 S.E. 63 (1911) as follows:

         Generally, if one let work, lawful within itself, to a contractor and retain no control over the manner of its performance, he is not liable on account of negligence of the contractor or his servants. But, if the work is intrinsically dangerous, or is of such character that injury to third persons, or to their property, might be reasonably expected to result directly from its performance, if reasonable care should be omitted, the employer is not relieved from liability by delegating the performance of the work to an independent contractor.

        In Sanders v. Georgia-Pacific Corp., 159 W.Va. 621, 627, 225 S.E.2d 218, 222 (1976), this Court stated the respective burdens of proof regarding respondeat superior liability and the independent contractor exception:

         It is always incumbent upon one who asserts vicarious [respondeat superior] liability to make a prima facie showing of the existence of the relation of master and servant or principal and agent or employer and employee. However, once a prima facie showing has been made, it is incumbent upon one who would defeat liability on the basis of an independent contractor relationship to show such fact.

         We also stated in Sanders that:

         [t]he defense of “independent contractor” is one which defendants have long favored as a means of denying liability for acts which are done by those whom they neither control nor have a right to control. However, over the years, the defense has proved to be a slender reed and one which the courts have found difficult to apply.

                        ***
         In the intervening years, the general rule has remained intact, but its efficacy as a defense has been so frequently questioned as to lead the Court of Appeals in Summers v. Crown Construction Company, 453 F.2d 998, 999 (4th Cir. 1972), to state:

            “So riddled is the rule insulating a general contractor from an independent contractor's negligence that one court has aptly noted: 'Indeed it would be proper to say that the rule is now primarily important as a preamble to the catalog of its exceptions.'” [Citation omitted.]

         This Court, like other courts, has established its catalog of “exceptions” to the general rule. Many of these “exceptions” use different words to convey the same meaning. All, however, are merely calculated to narrow the scope of the independent contractor defense and prevent its abuse as a mere convenient device for the evasion of responsibility and liability. For example, this Court has stated that the rule does not apply to relieve one who has employed an independent contractor from liability for the breach of a duty imposed upon him by law in behalf of the safety of the public, or for the breach of a nonassignable duty, or for the breach of an inescapable duty owed the public. [Internal citations omitted.]
                                
         Similarly, the rule does not apply to relieve one who has employed an independent contractor from liability for an injury if the injury might have been anticipated as a direct or probable consequence of the performance of the work if reasonable care is omitted; or if the work is intrinsically dangerous in character; or if a public authority has granted a right to engage in dangerous activities which right is denied the general public. [Internal citations omitted.]

         Other cases reject the independent contractor defense by reason of the law's imposition of a continuing duty to exercise reasonable care or to put a stop to any unnecessary or dangerous practices. [Citations omitted.]

159 W.Va. at 625-627, 225 S.E.2d at 221-222 (1976).   (See footnote 4) 

        In the instant case, on February 4, 1999, Mr. Winkler signed a two-page standard form document, prepared by the appellee, that described Mr. Winkler's duties, set his method of compensation, and stated that Mr. Winkler “is and shall be an Independent Contractor.”   (See footnote 5) 

        This Court has recognized that the mere fact that work is being done “pursuant to a contract” establish the independent contractor exception to respondeat superior, and that language or terms that may be used to label a business or working relationship _ whether in writing or otherwise _ are not determinative on the issue of whether an “independent contractor” exception is established for purpose of relieving an employing party from potential respondeat superior liability. As we stated in Kirkhart v. United Fuel Gas Co., 86 W.Va. 79, 102 S.E. 806 (1920): “[p]roving that the work was being done under a contract does not constitute the defense of independent contractor.”   (See footnote 6) 

        In C&H Taxi Co. v. Richardson, 194 W.Va. 696, 461 S.E.2d 442 (1995), this Court considered a claim by a taxi company that the company did not have the responsibility for paying workers' compensation premiums for the benefit of the drivers who drove the company's taxicabs. The driver and company had executed a vehicle lease that clearly denominated the driver as an “independent contractor” and repudiated any master-servant relationship.

        We held in C&H that the taxicab company exercised significant powers of control over the driver, including the right to terminate the relationship and to specify the day-to-day duties of the drivers; and we noted that the operation of the taxis was an integral part of the company's business. We held that the conclusion by the Workers' Compensation Fund that the drivers were not independent contractors was a reasonable one, “the disclaimers of the lease concerning the status of the drivers notwithstanding.” 194 W.Va. at 703, 461 S.E.2d at 449.

        As previously noted, once a master/servant prima facie case has been shown, the burden of establishing the independent contractor exception to respondeat superior lies on the party asserting the exception as a defense to liability. Sanders, supra. In the Syllabus of Hicks v. Southern Ohio Quarries Co., 116 W.Va. 748, 182 S.E. 874 (1935), we stated the respective roles of the court and the jury in assessing whether the independent contractor exception to respondeat superior liability has been established:

         In a case involving the relationship of independent contractor, although the facts may be undisputed, the issue should be submitted to the jury and not decided by the court as a matter of law, unless the facts are such as would justify but one reasonable inference.

        We also stated in Hicks, 116 W.Va. at 754-755, 182 S.E.2d at 877:

        Where the admitted facts are such that fair-minded [persons] might draw different inferences from them, the case is one for the jury rather than the court.

        We re-stated this principle in Syllabus Point 1 of Levine v. Peoples Broadcasting Corp., 149 W.Va. 256, 140 S.E.2d 438 (1965):

         Where the evidence relative to whether a particular person is an independent contractor or an employee is in conflict or, if not in conflict, admits of more than one reasonable inference, an issue is presented for jury determination.   (See footnote 7) 

        Turning more specifically to the issue involved in the instant case, this Court has spoken to the issue of independent contractor status for newspaper carriers _ most recently in Huntington Publishing Co. v. Caryl, 180 W.Va. 486, 377 S.E.2d 479 (1988).

        In Huntington Publishing, the issue before this Court was whether a taxable “retail sale” occurred between a newspaper and its subscribers within the meaning of a business and occupation tax, notwithstanding the newspaper's assertion that the carriers were “independent contractors” who bought their papers at wholesale and sold them at retail to subscribers.

        Syllabus Point 2 of Huntington Publishing states:

         When route carriers for a newspaper publishing company are required to deliver their papers to all points on a route at a time designated by the publishing company; and, when district sales managers, who are employees of the publishing company, act as liaisons between the carriers and the subscribers by supervising the daily activities of the carriers and by responding to complaints from subscribers; and, when the publishing company receives payments for prepaid subscriptions, route carriers are agents of the publishing company for the purpose of making retail sales to customers, and such retail sales are taxable to the publishing company under our former Business and Occupation Tax, W.Va. Code, 11-13-1 et seq.

        In Huntington Publishing, we stated that the newspaper company's “ability to release a carrier [without a stated reason] effectively controls the carrier's method of operation. The right to fire is one of the most effective methods of control. Cooper v. Asheville Citizen-Times Publishing Co., Inc., 258 N.C. 578, 129 S.E.2d 107, at 115 (1963).” 180 W.Va. at 491, 377 S.E.2d at 483. In the instant case, the document prepared by the appellee stated that the appellee had the right to terminate Mr. Winkler as a carrier without cause.   (See footnote 8) 

        Although the issue in Huntington Publishing was not respondeat superior, Cooper v. Asheville Citizen-Times Publishing Company, which was approvingly cited in Huntington Publishing on the independent contractor issue, was a respondeat superior case, and is factually similar to the instant case. The North Carolina court in Cooper reversed a grant of summary judgment for a newspaper company, holding that the issue of the independent contractor exception to respondeat superior was for the jury.

         In Cooper, the Court held that the indicia that would support a finding by a jury that a newspaper publisher was responsible under respondeat superior for an injury caused by a delivery route driver included the fact that the driver was performing

        . . . a part of the regular business of the employer . . . The delivery of newspapers within a reasonable time is essential to the success of the newspaper business. . . . The delivery boys are just as much an integral part of the newspaper industry as are the typesetters and pressmen of the editorial staff.

258 N.C. at 587-588, 129 S.E.2d at 114 (citations and internal quotations omitted).

        Additionally, in Cooper, the driver did not have an independent business or occupation; when and how he was to perform his obligations was fixed in large measure by the terms of his “independent contractor” agreement; and the services he was required to render were “routine in nature, requiring diligence and responsibility, rather than discretion and skill.” Id. These factors are all also present in the instant case.

        In Cooper, the court held that “[o]rdinarily the day by day sale and delivery of newspapers under a cancellable agreement of indefinite duration may not be considered 'a specific job under contract' within the meaning of that phrase when used in defining an independent contractor.” 258 N.C. at 589, 129 S.E.2d at 115. In the instant case, Mr. Winkler was delivering newspapers under “a cancellable agreement of indefinite duration,” just as in the Cooper case.

        A number of newspaper carrier/respondeat superior cases (representing reported decisions from approximately twenty-one states) are collected at the annotation, “Newspaper Boy or Other News Carrier as Independent Contractor or Employee for Purposes of Respondeat Superior,” 55 A.L.R. 3d 1216 (1974) (Cum. Supp. 2002).

        A review of the collected cases as described in the annotation indicates that approximately fifteen jurisdictions have held that a newspaper company can under at least some circumstances be held liable under respondeat superior for the negligence of a newspaper carrier; that approximately six jurisdictions have held to the contrary; and that the weight of authority is that the issue of respondeat superior liability by a newspaper for the negligence of a carrier is an issue ordinarily to be resolved by a jury.   (See footnote 9) 

        Another example of the view that the issue is ordinarily for the jury is found in Hampton v. Macon News Printing, 64 Ga.App. 150, 12 S.E.2d 425 (1940), where the court reversed a summary judgment for a newspaper company after a delivery carrier on a motorcycle caused a serious accident. See also Jenkins v. Gadsden Times Publishing Corp., 51 So.2d 957 (Ala. 1988) (summary judgment on respondeat superior claim against publisher was inappropriate where route driver delivering newspaper injured plaintiff); Brown v. Commercial Dispatch Publishing Co., Inc., 504 So.2d 245 (Ala. 1987) (child severely injured while riding with newspaper route carrier; parties' characterization of relationship as “independent contractor” was not controlling; question was for jury whether newspaper was liable pursuant to respondeat superior).   (See footnote 10) 

        In another case, Legassie v. Bangor Publishing Co., 741 A.2d 442 (Me. 1999), a pedestrian was allegedly injured by a car driven by a newspaper carrier. The Supreme Court of Maine reversed a summary judgment in favor of the newspaper company, distinguishing an earlier case, Lewiston Daily Sun, 407 A.2d 288 (Me. 1979), where the carrier was an employee of an intermediate company and where the court had held that the independent contractor exception to respondeat superior did apply. See also Santiago v. Phoenix Newspapers, Inc., 164 Ariz. 505, 513, 794 P.2d 138, 145 (1990), where the court stated that:

        Home delivery is critical to the survival of a local daily paper; it may be its essential core. . . . [The newspaper] is hard-pressed to detach the business of delivering news from that of reporting and printing it, especially when it retains an individual relationship with each carrier. [citations omitted]
The Santiago court held that “[w]hether an employer-employee relationship exists may not be determined as a matter of law in either side's favor, because reasonable minds may differ on the nature of the employment relationship.” 164 Ariz. at ___, 794 P.2d at 146.   (See footnote 11) 

        The appellee argues that Moore v. Burris, 132 W.Va. 757, 54 S.E. 2d 23 (1949), in which this Court addressed the issue of whether a newspaper company could be liable for injuries resulting from the negligence of a newspaper carrier, conclusively supports the circuit court's grant of summary judgment in the instant case.

        In Moore v. Burris, this Court held that a newspaper company was not and could not be liable as a matter of law for an injury negligently inflicted by a newspaper carrier upon a third party. The Court in Moore took a very narrow view of the type and degree of involvement and control that the newspaper company had over its carrier, a view that is not in consonance with either the majority of jurisdictions or more recent decisions of this Court, see Huntington Publishing, supra. For this reason, we do not believe that Moore v. Burris is controlling in the instant case.

        The appellee also argues that our decision in Shaffer v. Acme Limestone Company, 206 W.Va. 333, 524 S.E.2d 688 (1999) supports the circuit court's decision in the instant case to grant summary judgment for the appellee.

        In Shaffer, we held that a limestone quarry was potentially liable under respondeat superior for the results of allegedly negligent conduct by a trucking company that delivered stone to a the quarry's customers _ even though the trucking company was otherwise an independent contractor _ because there was a question as to whether the quarry was illegally overloading the company's trucks. If the alleged illegal loading were proven, we held, the quarry would have been so implicated in wrongful conduct by the trucking company as to prevent the applicability of the independent contractor exception to respondeat superior.

        The facts in the Shaffer case are quite different from the facts in the instant case. In Shaffer, a quarry contracted with a trucking company, whose employees operated that company's trucks, to haul stone to the quarry's customers. In the instant case, Mr. Winkler worked directly for the appellee, not for a delivery company that contracted with the appellee. Additionally, in Shaffer there was no evidence that the work of the trucking company included promoting the quarry's stone to potential new customers; or that the contract between the quarry and trucking company was terminable at will. These two factors are present in the instant case, with respect to Mr. Winkler's relationship with the appellee.

        Additionally, in Shaffer there was no suggestion that the trucking company was unable to pay for injuries occasioned by negligence in the conduct of its trucking business. In the instant case, however, although the appellee's form contract required carriers like Mr. Winkler to have $200,000.00 in liability insurance (and a policy that named Clarksburg Publishing as an additional insured), Mr. Winkler apparently had only $20,000.00 in liability insurance. T here is also evidence in the instant case tending to show that the appellee did not have a system for verifying that such insurance is kept in place; and evidence that the appellee did not check carriers' driving records, or take other safety-related precautions such as obtaining a medical history or vehicle safety inspection verification. It is stated as being undisputed that Mr. Winkler had a conviction for DUI in 1995, and one for driving on a suspended license in 1996.

        Had the facts in Shaffer been that the trucking company (not the quarry) had tried to avoid accountability for the results of a truck driver's negligence by attempting to make all of its truck drivers “independent contractors,” then the Shaffer case would be have been more like the instant case, and the independent contractor issue would be clearly, at the least, a jury issue. We therefore do not believe that the holding in Shaffer case supports the appellee's position.

        Considering all of the circumstances in which the independent contractor exception to respondeat superior is being asserted in the instant case, it is evident that reasonable minds could infer that the appellee was not entitled to successfully assert the exception.   (See footnote 12)  Therefore, the circuit court erred in determining as a matter of law that the appellee could not be held liable under the respondeat superior doctrine.

        The circuit court's grant of summary judgment for the appellant is reversed. The applicability of the independent contractor exception to the claim of respondeat superior liability by the appellee is a matter for the jury, upon consideration of all of the facts and circumstances involved in the claim in which the exception is asserted.