10 S.E.2d 439 | Ga. Ct. App. | 1940
1. In order to hold an automobile sales agency liable for injuries inflicted by an automobile furnished to an automobile salesman employed by it, while being operated by the salesman, the relation of master and servant must exist, and the servant must have been acting at the time within the scope of his employment in performing an act for the master's benefit.
2. Inasmuch as the determination of the relationship of independent contractor or servant must, in the last analysis, depend on the question whether the contract reserves to the employer the power of control over one engaged to perform work or service, the fact that the salesman's services are compensated for on a commission or percentage basis, while an element to be considered, is not controlling, and is not a decisive test by which to determine whether he is an independent contractor or a servant.
3. In determining whether one person, in performing certain services for another, does so as an independent contractor or as a servant the real test is whether the person alleged to be the master, under his arrangement with the other person, has or has not any authoritative control of the latter with respect to the manner, method, and means in which the details of the work are to be performed.
4. Where there was evidence tending to show that the plaintiff's son was killed as a result of alleged negligence of one who was employed as an automobile salesman by the defendant, an automobile sales agency, that the sales agency exercised the right to direct and control the manner, method, and means by which the salesman performed the duties of his employment (such negligence consisting in the operation of an automobile belonging to the automobile dealer and furnished to the salesman for use in his work), and that at the time of the accident which resulted in the death of the plaintiff's son the salesman was on his way to call upon a prospective purchaser of an automobile, at the direction of the sales manager of the automobile dealer, a jury would be authorized to find that the salesman was at the time the servant of the sales agency, and was acting within the scope of his employment as such, and that the defendant was liable to the plaintiff for the homicide of her son. It was error to award a nonsuit.
At the conclusion of the evidence for the plaintiff on the trial, the motor company moved for a nonsuit on the ground that there was not sufficient proof to show that Johnson was its agent and employee at the time, and that there was not sufficient evidence tending to show that at the time of the accident Johnson was engaged in the performance of the business of the motor company and acting within the scope of his employment. The evidence for the plaintiff otherwise made a prima facie case, and it is contended by the motor company only that the evidence was insufficient to show that Johnson was its agent and employee, and engaged in the performance of the duties of his employment, at the time he drove the automobile belonging to the motor company into the plaintiff's son and killed him. The evidence on which the plaintiff relied to show that Johnson was in the employment of the motor company, and that at the time of the homicide he was engaged in the performance of his duties as such employee, was in part as follows:
Several witnesses testified that they saw Johnson daily, and that he was engaged in the sale of automobiles for the G. L. Hight Motor Company, an automobile sales agency in Rome, Georgia, for Chevrolet automobiles. Witnesses testified that Johnson continuously used an automobile in the prosecution of his business or employment for the motor company, that he demonstrated automobiles for that company, and that he used the automobiles he was driving for the purpose of sale. Johnson testified, in part, as follows: "On February 3d of this year, 1939, I was employed with G. L. Hight Motor Company. I am working under a contract. The contract is not in writing. I worked on a commission basis. The contract is by word of mouth. I entered into that contract with them about October five years ago. . . I have been continuously employed by G. L. Hight Motor Company. . . Under the agreement . . I was to work for the company and sell automobiles on a commission only, and they were to let me have automobiles to use for that purpose, to demonstrate, and any other purpose in connection with my sales. On this particular occasion I did have an automobile that belonged to G. L. Hight Motor Company; that is, on the date of this accident, and at the time I was going to see Mr. Robert Hardin, at Sterchi's. I wasn't looking for him. I knew he wouldn't want to leave his work for the company then. *158 Friday, they had a sales meeting. I worked there once, and I knew I couldn't get hold of him there, and the traffic was heavy, and my wife worked at the Partridge Cafe and I told her I would be a little late, and ate supper while I was there. . . On this occasion I got this automobile up there at the G. L. Hight Motor Company. That is where it came from, it belonged to them, and was their automobile. It was turned over to me. I had been driving it a few days. I used it in carrying out the business I was doing for them, and the way I was working I was paid for every automobile sold, on a commission basis. I was given the commission on all automobiles I sold, each month around from the first to the fifth; in other words I was paid once a month. I wasn't given a weekly salary. I wasn't given a salary in addition to what I made there from the sales of those automobiles, and I wasn't given a drawing account. I could draw, they could loan as much as $15 a week. . . I was paid $15 whether I sold or didn't sell any automobiles; and when I sold them that was charged back against my sales, and this $15 a week was merely a loan. . . All I did when I wanted the $15 once a week, I merely went in there to the desk or cashier, or whoever paid the money, and they had my $15 all ready; they wrote a check for it, but I had to ask Mr. Stephens in advance. They paid me just like the mechanics got their salary, and they paid the others their salary. I got my $15 the same as they were paid, in a check; and they got theirs each week just as I got mine. I sold new or used cars. When I took in a trade-in, either a new or a used car, I was not permitted to pass on that myself, but that had to be arranged for the trade-in — had to be passed on by the sales manager, whoever he might be. In other words, I wouldn't have any right to close a trade until that was passed on by them. As a matter of fact, all those trades were actually concluded by the sales manager. I went to work in the morning at eight, and I was required to be there at that time. In the evening we don't have any set time to get off; we have to work until we get through, calling prospects, and they had no set hours. To take off a week I know I would have had to secure permission. I have taken off a couple of days at a time on my own hook, or for a week; tell them I would be gone or something, and I would have to get their consent. Naturally I would come to the sales meeting; that is what their meetings are for, is about the *159 prospects. I had to keep a list of my prospects, and that list was also kept up there by the company. We have a file, and want to keep it straight. They were our prospects, and we could work them out as we pleased, but I had to work it every thirty days, or they were no longer my prospects, but were subject to be sold by any salesman. I had to see the number in thirty days and make regular reports. We have a card system, which was their property; and if I didn't work it once in thirty days, it would subject such of my prospects to any other salesman. It was open house after thirty days; any one could sell them. The sales manager there would direct me to call on certain prospects and certain people. We could either see them or forget it. The sales manager would give me certain instructions and directions to call on certain people and try to make sales, and I followed those instructions when they were given to me, and I carried them out in the way and manner I was directed to carry them out. Naturally I would, or I wouldn't be with them. At all times I followed the instructions and directions given me by the sales manager, to the best of my knowledge I did, and the rest of my work. If I hadn't I imagine I would certainly have been held to account for it; I don't know. Under my contract I had with them I understood that I was to follow the instructions of the sales manager. He was the one that hired me. I didn't pay any license as a salesman to the City of Rome or State and county. I have a social-security card, and this social-security card bears the date of 12-3-36, which means December 3d, 1936, as the date of issue, and at the time I was connected with G. L. Hight Motor Company. The social-security card bears the number 255-10-1961. I was not working for anybody else but G. L. Hight Motor Company. I was connected with them. That is the only source of income or employment that I had. The eighteen gallons of gasoline and oil used in the automobiles was used trying to effect sales for the G. L. Hight Motor Company. We had a limit of eighteen gallons for one week. They furnished all the oil. They didn't have any rule to regulate me in the amount of oil I used. Take this matter with Mr. Robert Hardin, I was trying to sell him a new car. This automobile I was driving on this occasion was not a new automobile. It was a 1935 coupe, a Chevrolet. The way we have, they would assign the automobile over to us, and this car was assigned over to me. It had been assigned to *160 me around four or five days, maybe six this special car. I can't tell you who had it before me. This particular car had been in my possession all that day anyhow. I told them that at the time of the accident I was on my way to see Robert Hardin, after I stopped by the cafe to see my wife. I didn't say that at the time of the accident I was going to see Robert Hardin about selling him an automobile, probably after I left the cafe. I explained that I was going to see Mr. Hardin about an automobile. As a matter of fact I was, for the purpose of selling an automobile, going to see Mr. Hardin. Ever since I received my social-security card on or about December 3d, 1936, as to the one per cent. which is required under the law to be deducted from the payments that were made me by the G. L. Hight Motor Company, they were taking it out of my check at the end of the month as I drew it up. That happens just the same for any payment I might have received for February, 1939, and continuously right on up to the present time. You will notice that on that statement there, which I have seen. On the day in question I went to the place of business of G. L. Hight Motor Company, sometime about dark or late in the afternoon before this accident happened, and saw Mr. Golden Stephens, who is general manager of the business, and who told me that Mr. Robert Hardin had been there to see me, and that Mr. Hardin said to get in touch with him. I knew on that occasion what it was about, and also Mr. Stephens. He told me to go to see him. I did not leave there right immediately to go up the street; that was around six to six-fifteen that I came in, and I was told about Mr. Hardin being around there, and I knew I couldn't see Mr. Hardin until about seven-thirty or eight at Sterchi's. I couldn't say just how many different automobiles G. L. Hight Motor Company had turned over to me for use during the period of time I was there; we drive them from around three or four weeks until six months, something like that, and we are taken out of them and assigned other automobiles. Naturally it would be sales manager, who takes us out of them. Mr. Dewey Stephens is now the sales manager . . and the other is general manager. Naturally we could keep them as long as we wished, if they didn't need repair. I was on my own; in other words, if I wanted to take off a day I would take off a day after going to the sales meeting. If I was off a week without consent, they wouldn't pay me; probably if I didn't *161 quit I could go and borrow it. I probably might have gotten permission to have gotten off. . . The commission on a new car is 8 per cent. on f. o. b. price on new, and 6 per cent. on trade-in, and 7 or 8 on used cars less the trade-in. . . After this thing happened I went to the home of the young man who was killed; I would say two weeks after; maybe longer than that. They called me up there, and I told them I had been in the wreck. I carried Mr. Hardin and Madden up there, and I didn't make any statement I don't think. I didn't walk in and tell them I wanted to let them know that at the time this thing took place I was driving the car on company business for the G. L. Hight Motor Company, I didn't make that statement in those people's presence there in their home. I was on business otherwise, to sell that automobile, I wasn't out then to."
R. R. Hardin testified: He was employed by Sterchi's company on Broad Street in Rome, Georgia, and he remembered when Jack Nichols was struck by an automobile. "At that time Mr. Johnson had been to see me in connection with selling me an automobile. This accident took place somewhere along about a quarter till seven. In connection with the sale of an automobile he told me he would probably see me that night. I had been talking with him two or three weeks as a salesman, and he was at the G. L. Hight Motor Company. There was no definite time set that he was to see me at that time; it was understood I would be at the store from seven till eight o'clock. I had been down to look the automobiles over. Mr. Stephens, I believe it was, showed them to me. I would say that Mr. Johnson had been to see me in connection with this sale off and on about five to ten times. I had seen him pretty often, and he would say something about it every time I saw him. . . Mr. Stephens knew I was dealing with Mr. Johnson about buying a car." The witness further testified that he knew Johnson was selling automobiles for the defendant motor company on commission; that he had been seeing Johnson about six years and knew he had been working for the motor company selling automobiles; and that on the day of the accident he visited the place of business of the motor company and "told Mr. Stephens to tell Mr. Johnson to come up to see me at the store that night." The employer of the plaintiff's son, and about whose business the plaintiff's son was engaged when he was killed, testified that after the accident *162 he talked to Herman Johnson, and Johnson stated that at the time of the accident he was going to see Mr. Hardin at Sterchi's, for the purpose of making a sale of an automobile to him.
Golden Stephens testified, in part, as follows: "I am general manager of G. L. Hight Motor Company. On or about February 3d, of this year, Herman Johnson was connected with the G. L. Hight Motor Company as a commission salesman. Mr. Hardin came to the place of business of G. L. Hight Motor Company around between five and five-thirty on that night. He told me at that time he came in that Mr. Johnson was calling on him with the idea of selling him an automobile. When he came I told Mr. Johnson to go to see him, and he told me he would as soon as he got supper."
The plaintiff introduced in evidence a statement of the motor company, showing payments for a period of twelve months to Johnson, including the month during which the accident took place, and showing deductions of payments for social-security taxes to the Federal government in the sum of $9.51. There was testimony going to show that Johnson before going to Sterchi's to see Mr. Hardin had stopped at the Partridge Cafe, where his wife was employed, to eat supper. Sterchi's was located on the northwest corner of Fourth Avenue and Broad Street. The accident resulting in the death of the plaintiff's son occurred just north of Fourth Avenue towards Fifth Avenue on Broad Street. The Partridge Cafe was on Broad Street just north of Fifth Avenue towards Sixth Avenue. Under the ordinance of the City of Rome, if one is going north on Broad Street he can not make a U-turn to come down the other side of Broad Street until he comes to Sixth Avenue.
The court granted a nonsuit as to G. L. Hight Motor Company, and the plaintiff excepted. It is contended that Johnson, an automobile salesman of G. L. Hight Motor Company, who was driving an automobile furnished to him by his employer at the time his alleged negligence caused the death of the plaintiff's son, was, under the doctrine of respondent superior, a servant of the motor company. Therefore it is contended that Johnson's employer is responsible for such negligence, in that Johnson *163 at the time was in the performance of his duties as an employee of the motor company. It appears from the evidence that Johnson was employed as an automobile salesman by the motor company, and that company furnished him with an automobile for the purpose of performing his duties. The defendants contend, that Johnson was employed solely on a commission basis, and was not under the direction and control of the motor company in the performance of the duties of his employment, which constituted him, as a matter of law, an independent contractor, and not a servant; and that, even if Johnson was a servant and not an independent contractor in the operation of the automobile, the evidence was insufficient to show that he was engaged in the performance of his duties as a salesman of the motor company within the scope of his employment at the time of the alleged accident.
In order to hold an employer liable for injuries inflicted by an automobile while being operated by a salesman, the relation of master and servant must exist, and the servant must at the time have been acting within the scope of his employment in performing an act for the master's benefit. See annotations in 17 A.L.R. 621; 29 A.L.R. 470; 54 A.L.R. 627; 107 A.L.R. 419. It is necessary to determine whether the relationship between the motor company and Johnson was that of master and servant, or that of employer and independent contractor. It is true that the mode of payment for the services performed is an element to be considered in determining whether in a particular case the employee is an independent contractor or a servant, but it is by no means controlling of that question. The fact that a salesman's services are compensated for on a commission basis is not a decisive test by which to determine whether he is an independent contractor or a servant. See 61 A.L.R. 223. In Aisenberg v. C. F. Adams Co.,
So, in determining whether one in performing certain services for another does so as an independent contractor or as a servant, the real test is whether the person alleged to be the master, under his arrangement with the other party, has or has not any authoritative control of the latter with respect to the manner in which the details of the work are to be performed; and therefore this test or element must, in the last analysis, always determine what was the essential nature of the relationship between the person who performed the given work and the person for whom it was performed. As some evidence of the nature of the relationship existing between the motor company and Johnson, we may refer to the fact that Johnson received no definite compensation; but more important than this consideration is the question, does the evidence show that Johnson was perfectly free to prosecute the work, for which he was engaged under his contract of employment with the company, in any manner he saw fit, using such means or methods as to his judgment might seem the most effective for accomplishing the sale of automobiles for the company? Ordinarily this is a question of fact to be determined from an examination of the facts in each *165 particular instance, including the contract of employment under which the employee is employed.
The evidence of the plaintiff showed these facts: Johnson, the driver of the automobile, the alleged negligent operation of which caused the death of the plaintiff's son, was at the time employed as a salesman of the motor company, an automobile sales agency. The automobile which was being driven by its salesman at the time of the accident belonged to the company. Johnson was employed by the company under an oral agreement to sell automobiles, and the company permitted him to have automobiles belonging to it, not only for demonstration purposes, but for "any other purpose in connection with" the sales work. He was paid a commission on the automobiles sold by him. In the sale of an automobile, whenever it became necessary to accept an automobile from the buyer as a "trade-in," the salesman was not permitted to pass on the matter, but this was done by the sales manager. No trade was closed until passed on by the manager, and all of the sales were concluded by him. Johnson was required to be at work at 8 a. m., although he had no required time to stop work for the day, and had no set hours to call on prospects. If Johnson wished to take time off from his employment, such as a week or several days, he was required to obtain the consent of his employer. He was required to attend sales meetings, and to keep a list of his prospects; and a copy of this list was retained by the company at the office. Johnson could work his prospects as he pleased, except that he was required to work the list over every thirty days, or they would become prospects to be sold by any salesman of the company. He was required to call on all of his list during that time, and to make regular reports thereof. The sales manager would give Johnson instructions and directions to call on certain people and endeavor to sell automobiles to them. He followed these instructions as best he could. He was required to, and did, to the best of his knowledge, at all times follow the instructions and directions given to him by the sales manager. The sales manager hired Johnson. Johnson did not pay a state, county, or city license as a salesman. Each week the company furnished a limited amount of gasoline to him for use in his work, but there was no limit on the amount of oil furnished to him by the company. Johnson had been so employed by the motor company for five years. The company deducted the *166 one per cent. from compensation paid Johnson, as required under the Federal social-security act, and Johnson had a social-security card and serial number.
Do these facts show that the company actually exercised no authoritative control over the sales of automobiles for it by Johnson, and that he was perfectly free, under his employment by the company, to choose his own time, place, and manner of seeking and procuring customers and selling to them automobiles of the motor company? In Curran v. Anthony,
In Fearn v. Ralph Hamlin,
In Mitchem v. Shearman Concrete Pipe Co.,
In the case at bar, the inference is reasonable that, subject to the freedom of action inherent in the nature of the work of the automobile salesman in general, it was understood that the right to direct the manner in which the sale of automobiles should be done was reserved by the defendant company. The company fixed the price of the automobiles, and the trade and the sale had to be approved and was concluded by its general sales manager. The *170 company had the right to direct the salesman to call upon any prospect. On the occasion of the death of the plaintiff's son, Johnson was acting under specific directions and instructions of the sales manager to call upon a particular prospect. Johnson was required to report to the company office and to attend all sales meetings. He could be discharged by the company for disobedience to instructions, and he had no definite term of employment. The company furnished the gasoline and oil to use in the automobile furnished to Johnson for the performance of his duties. These and other facts referred to clearly would have permitted the jury to find that Johnson, in his employment as a salesman of the motor company, was a servant and not an independent contractor, and that in the operation of the automobile of the motor company for use in calling on prospects in connection with the sale of automobiles he was a servant, subject to the control and direction of the company. Certainly, under the facts Johnson was not, as a matter of law, an independent contractor.
This brings us to consider the second phase of this case. Was Johnson acting within the scope of his employment at the time of the accident which resulted in the death of the plaintiff's son? From the testimony of Johnson it appeared that on the occasion of the accident he was using an automobile which had been furnished to him by the company for use in connection with the sale by him of automobiles for the company; that at the time he was going to call on a prospect to whom he was trying to sell a new automobile; that this prospect had previously been in contact with him with reference to purchasing an automobile, and had gone by the company office and informed the manager that he wished to see Johnson; that the manager so informed Johnson, and directed him to call on this prospect; that this was about 6 p. m.; that Johnson would be unable to see this prospect before 7:30 that evening; that Johnson went first by a cafe where his wife worked, and ate supper, and was on his way from that place to call on this prospect when the accident occurred; and that on the day of the accident this prospect had visited the office of the company and had told the manager to have Johnson "come up to see me at the store that night." The manager of the company testified, that this prospect came by the company office about five o'clock the evening of the accident, and stated that Johnson had been calling on him with the idea of selling *171 an automobile to him; that when Johnson later came to the office the witness directed him to call on this prospect; and that Johnson stated that "he would as soon as he got supper." There was evidence to the effect that the place where the accident occurred, at about 7 p. m., was along a route which Johnson would necessarily travel from the cafe, where he had eaten supper, to the place where the prospect was.
The evidence authorized a finding that at the time of the accident Johnson was engaged within the scope of his employment, and was about the performance of his duties as a salesman of automobiles for the motor company. In fact, there was evidence that at the time of the accident Johnson was complying with directions from the sales manager of the defendant automobile dealer, to call upon this prospect for the purpose of selling him an automobile.
The fact that the accident occurred at night, after the salesman had eaten his supper and after the close of the regular hours of business, does not relieve the company, under the facts of this case, from responsibility, if the salesman was negligent and his negligence proximately caused the death of the plaintiff's son. However, the defendants concede that the evidence for the plaintiff made a prima facie case, except as to the relationship between Johnson and the motor company, and except as to Johnson acting within the scope of his employment and performance of his duties as a salesman at the time of the accident. SeeMitchem v. Shearman Concrete Pipe Co., supra, and cit.; Dishman v. Whitney,
It necessarily follows, from what is said above, that a prima facie case was proved by the plaintiff. It was error to grant a nonsuit as to the motor company.
Judgment reversed. Sutton, J., concurs. Felton, J.,concurs specially. *172