107 P.2d 751 | Kan. | 1940
The opinion of the court was delivered by
This appeal involves liability for injuries sustained in an automobile accidént in which Charles Houdek sustained personal injuries and in which his wife was killed. Houdek filed one action to recover personally and, as administrator, another action to recover for the wrongful death of his wife. Both actions were against Glenn Gloyd, the driver of a car causing the accident and against his alleged employer, The Oehlert Tractor & Equipment Company, hereafter referred to as the company. The causes were consolidated for trial in the district court.
During the trial, the company demurred to plaintiff’s evidence for the reason it did hot prove the relation of master and servant existed between Gloyd and the company, the demurrer being overruled. At the close of all the evidence, the company moved the court for judgment for the same reason, the motion being denied. Under instructions, of which no complaint is made, the jury returned verdicts in each case against both defendants and answered special questions submitted to it. Gloyd’s motions to set aside certain of those answers and'for a new trial were denied, and he perfected an appeal, which has been abandoned. The company filed similar motions and for judgment notwithstanding the verdict. On these motions, the trial court set aside certain answers and rendered judgment notwithstanding the verdict in favor of the company, which was permitted to withdraw its motion for a new trial. From these rulings the plaintiff appealed, the gist of the specifications of error being that the trial court erred in holding as a matter of law that the relation of master and servant between the company and Gloyd had not been, established by the evidence.
"There is no longer any question as to the liability of Gloyd. For purposes of discussion we review briefly the evidence of all parties, but for the sake of clarity we shall not follow the order in which it was presented at the trial, nor shall- we allude to much of the details shown.- •
The company had been, engaged in business .for some years, at
On January 31,1938, Gloyd, without any directions from the company, went to Ellsworth county in an effort to interest one Soukup in trading for a larger tractor. Later on the same day, he went to a place in that county and became intoxicated. While in that condition, he started to drive back to Salina, and while so doing, operated his car in such manner as to force the Houdek car off the pavement with results which gave rise to these actions. Later that day, C. L. Clark, the county attorney of Saline county, talked with Mr. W. H. Oehlert, of the defendant company, in an apparent effort to find Gloyd. Mr. Apt, the court reporter, was present. We have carefully read all of their testimony as abstracted, and as bearing on the question now before us. About all that is shown is that Clark asked Oehlert if Gloyd worked for the company, and Oehlert said Gloyd sold equipment; that he asked Oehlert if he knew where Gloyd was on January 31, 1938, and Oehlert said Gloyd had been to Ellsworth. The county attorney’s later testimony showed that Oehlert had seen Gloyd late in the day and that Gloyd had told him, Oehlert, he had been to see Soukup in Ellsworth county. Oehlert later testified he had not known Soukup, had not sent Gloyd to see him, and only knew he had been there when Gloyd told him.
It had been observed that the company had demurred to plain
Very complete briefs have been filed setting forth the views of both parties, reference being made to many authorities, and many more could be examined. (See, for example, the annotations in 20 A. L. R. 684, 54 A. L. R. 627, 61 A. L. R. 223, 75 A. L. R. 725, 126 A. L. R. 1120, and the A. L. R. Blue Book of Supplemental Decisions.)
A situation somewhat similar to that now before us was presented in Hurla v. Capper Publications, Inc., 149 Kan. 369, 87 P. 2d 552, the appeal arising from rulings sustaining demurrers to the plaintiff’s evidence-. In the opinion, review is made of many authorities as to what constitutes the relation between parties so that liability follows if the relation of master and servant be established, and it was held:
“A master is a principal who employs another to perform service in his affairs and who controls or has the right to control the physical conduct of the other in the performance of the service.
“A servant is a person employed by a master to perform service in his affairs whose physical conduct in the performance of the service is controlled or is subject to the right to control by the master.
“An independent contractor is 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 with respect to his physical conduct in the performance of the undertaking.
“A principal employing another to achieve a result, but not controlling nor having the right to control the details of his physical movements, is not responsible for incidental negligence while such person is conducting the authorized transaction.' It is only when to the relationship of principal and agent there is added the right to control physical details as to the manner of performance which is characteristic of the relationship of master and servant that the person in whose service the act is done becomes subject to liability for the physical conduct of such agent.” (Syl. ¶¶ 2, 3, 4, 5.)
In the above case reference is made to .Dohner v. Grocery. Co., supra, where it was held:
“A salesman who operates an automobile at his own expense, whose movements are not controlled by his employer, except that he shall make his territory once a week, is, with respect to the operation of the car, an independent contractor so that his employer is not answerable for injuries caused by his negligent operation of the car.” (Syl. ¶ 2.)
Reference is also made to McCraner v. Nunn, 129 Kan. 802, 284 Pac. 603, where it was held:
“A dealer in automobiles, for whom another is engaged in selling automobiles on commission, who in driving his own car causes injuries to a stranger,*795 is not liable for the resulting injuries from negligent driving unless the relationship of master and servant or principal and agent exists between., the dealer and the driver and the driver is actually engaged at the time of the injury in furtherance of the business of the master or the principal.” (Syl. ¶ 1.)
It is said by appellant that the three cases last noted were relied on by the company in the trial court and by the trial court in making its decision and he seeks to distinguish them by pointing out that in none of them was the right to discharge the person alleged to have been a servant, or to terminate the arrangement between the parties, considered as being an element of control. Eighty pages of his brief, with citation of many authorities, is devoted to a discussion of that phase of the matter. We have read carefully the matter, as presented in the briefs, and many of the cases quoted from or cited, but limits of space prevent any extended review of all of them to show applicability or lack of it or to distinguish them from the case before us.
In Nelson v. Cement Co., 84 Kan. 797, 115 Pac. 578, the matter of right to discharge was mentioned in considering whether the relation of master and servant existed. A review of the facts was made showing a radically different situation than in the instant case, many authorities were cited, and it was held:
“Whenever the court can say from all the circumstances that the contractor is not independent of the owner and that the contract, whatever its terms, is only a colorable arrangement or device to enable the master to avoid liability to 'his servants for the failure to perform a duty which the law imposes upon him, the defense that the injury was caused by an independent contractor should not be permitted to prevail, and the failure to submit such defense to the jury will not be deemed error.” (Syl. ¶ 4.).
In Pottorff v. Mining Co., 86 Kan. 774, 122 Pac. 120, a written contract for the operation of a mine was involved under which the lessee was paid a certain price per ton for coal produced, but not permitted to sell the coal, and consideration was given to provisions permitting the lessor to determine the amount of production and-whether the mine should be worked, and to terminate the contract in case of sale or if the manner of working it was not agreeable to the lessor. It was there held:
“When a person lets out work to another, the contractee reserving no control over the work or workmen, the relation of contractor and contractee exists, and not that of master and servant, and the contractee is not liable for the negligent or improper execution of the work by the contractor.
“An independent contractor generally is one who, exercising an independent employment, contracts to do a piece of work according to his own methods and*796 without being subject to control of his employer, except as to the result of his work.
“An employer may make himself liable by retaining the right to direct and control the time and manner or means of executing the work, although he may inspect and supervise it to the extent necessary to produce the result intended by the contract without incurring such liability.
“A contract between the owner of a coal mine and another party for its operation, is examined, and it is held that this party is not an independent contractor within the rules stated in the above paragraphs.” (Syl. ¶¶ 1, 2, 3,4.)
Another case cited by the plaintiff is McKinstry v. Coal Co., 116 Kan. 192, 225 Pac. 743, arising under the workmen’s compensation act. Defendant was operating a coal mine. Plaintiff furnished his own tools and equipment, and was paid for what he produced. The company defended on the ground plaintiff was an independent contractor. It was said in the opinion.
“Employees are often paid by the piece or quantity, generally known as piece work. The evidence shows that many miners in the vicinity of the mine in which the plaintiff was working were paid so much a ton for mining coal. Here, the plaintiff was paid so much a car. The plaintiff did not have to contract to do any certain amount of work any given number of days, to produce any definite number of cars or tons of coal, or to mine the coal from any particular place. The defendants could have discharged the plaintiff at any time for any reason whatever. For the purpose of this case, wages may be appropriately defined as that which one pays to another for labor performed. That labor may be by the hour, by the day, by the week, by the month, or by the piece. ... If the contract had been to mine a certain amount of coal or to mine all the coal from a certain place, the contention of the defendant might be good; but that is not the situation. The plaintiff was an employee within the meaning of the workmen’s compensation act.” (p. 193.) (Italics ours.) •
Compare Maughlelle v. Mining Co., 99 Kan. 412, 161 Pac. 907, another workmen’s compensation case, where the company had contracted for operation of its mine, under a lease giving it the right to terminate under, certain circumstances. Although that provision was quoted in the opinion, no weight seems to have been placed on it,, nor that it prevented the relation of independent contractor found to exist as against an opposing contention the relation was that of master and servant.
Another case called to our attention is Dobson v. Baxter Chat Co., 148 Kan. 750, 85 P. 2d 1, where the company claimed that the relation between itself and one White was that of master and servant. The evidence showed that White had no agreement to haul any particular number of loads; could work or not as he pleased; that he furnished his own truck and was paid by the load, but the com
Many cases cited go to the proposition that the relation existing between the parties may be proved by circumstantial evidence, as to which there is no doubt, or involve situations where the general question was whether or not control was exercised, and not to whether there was a right to discharge or to terminate the relationship, as, for instance, the recent case of Moseman v. Penwell Undertaking Co., 151 Kan. 610, 100 P. 2d 669, where many of our former decisions are reviewed. Many decisions from other jurisdictions are cited, in which right to discharge has been mentioned as being an element to be considered in determining the relationship between two parties, but we need not review them in view of what is said later.
Essentially all that was shown by the evidence as outlined above, or that may be inferred from circumstances in many matters not detailed, was that Gloyd should have the right and privilege of selling such of the company’s used machinery as he could to purchasers of his own choosing, his obligation being to account to the company for eighty-five percent of its list price. There was no agreement as to when he should commence operations, no agreement as to how or when he should work, no agreement when he should quit, he was not required to report in any manner to the company — • the only stipulation with reference to time, place or manner was that he should not interfere with the operations of any regular salesman of the company. It is to be noted he was not to be paid any salary or any expenses or any commission. Whether Gloyd made nothing, little or much, depended solely on the amount he received from his purchaser over and above the amount he had to pay to the company. That was the arrangement. So far as evidence of what occurred under the arrangement is concerned, there is no evidence .that Gloyd was ever told whom he was to see as a prospective purchaser, or that he was ever told to see any particular person. On one occasion, at least, Gloyd inquired whether he could contact a named person, but the only inference to be drawn from that would be that he wanted to learn whether that person had been approached by a regular salesman.
It may be conceded that in many cases from other jurisdictions, it has been held that the power to terminate the contract is an element fending to show control and that the person employed is not an independent contractor, and that provisions for cancellation, annulment or termination under specified conditions, have a tendency to show that the person employed was a mere servant. On the other hand, it has been held the relationship is to. be determined from the surrounding indicia of control, and the sole circumstance that the employer has reserved the right of termination or cancellation does not necessarily make the contractor a servant. (See 27 Am. Jur. 501.)
In the case before us, there was no express right of termination; the company’s officers did say that they could terminate, but when that testimony is considered with all of the other testimony, it cannot be said to be sufficient to compel the matter to be submitted to a jury. Leases and many other types of contract have specified terms and provisions for annulment, cancellation, termination, etc., but those inclusions do not make the relations of the parties to them that of master and servant — if that relation exists, it is because of other provisions. Other elements of control being shown, we think reservation of right to terminate is a proper element to be shown, but we cannot accede to any contention that it alone is evidence of the right of control and determinative of whether the relation of master and servant obtains.
It is also contended that the fact the evidence showed the company has paid the federal social security tax based on Gloyd’s sales was such as to require the question to be submitted to the jury. Whether the company was legally obligated to pay social security tax on account of Gloyd was not an issue in this case and need not be discussed. Perhaps no weight should be given to Oehlert’s explanation why the tax was paid. There may be cases arising where
We are of opinion the relationship between the company and Gloyd was not that of master and servant or employer and employee, but that Gloyd was an independent contractor; that the trial court did not err in its rulings setting aside certain answers to special questions submitted, nor in rendering judgment in favor of the company, and its judgment is therefore affirmed.