Boland v. Morrill

• Decision Date: 08 January 1965
• Docket Number: No. 39320,39320
• Citation: Boland v. Morrill, 270 Minn. 86, 132 N.W.2d 711 (Minn. 1965)
• Parties: Mabel BOLAND, by Wm. Orr, her guardian, Respondent, v. Charles Henry MORRILL et al., Defendants, Olson Manufacturing Company, Appellant, The Good Samaritan Home, Respondent.
• Court: Minnesota Supreme Court

Page 711

132 N.W.2d 711

270 Minn. 86

Mabel BOLAND, by Wm. Orr, her guardian, Respondent, v.Charles Henry MORRILL et al., Defendants, Olson Manufacturing Company, Appellant, The Good Samaritan Home, Respondent.

No. 39320.

Supreme Court of Minnesota.

Jan. 8, 1965.

Rehearing Denied Feb. 1, 1965.

Syllabus by the Court

1.In an action brought to establish vicarious liability of an employer for the torts of an alleged employee, the question as to whether the tortfeasor was an employee or independent contractor usually presents a question of fact.No single test will suffice to determine such relationship, but the overall relationship of the parties must be taken into consideration.Essentially, we follow the Restatement, Agency, rules.

2.Where it is established that a tort-feasor was an employee rather than an independent contractor, it must also be established that he was engaged in the scope of his employment before vicarious liability for a tort will attach to his employer.In order to be engaged in the scope of his employment, the employee's conduct at the time of the commission of the tort must be actuated at least in part by a desire to serve his master.Tested by applicable rules, the question under the evidence in this case was for the jury.

3.Where parties continued to operate under the terms of a written contract after its expiration, the contract is relevant to show the relationship of the parties.

4.While the final argument of counsel to the jury in this case is subject to criticism, it is not so prejudicial as to require a new trial.

Robb, Robb & Van Eps, Minneapolis, for appellant.

Nemerov, Perl, Spector & Hunegs, Minneapolis, Hanson & Grinley, Albert Lea, for plaintiff-respondent.

Meighen, Sturtz, Peterson & Butler, Albert Lea, for respondent Good Samaritan Home.

KNUTSON, Chief Justice.

This case arises out of a collision between an automobile driven by Lee Boland, in which plaintiff, Mabel Boland, was riding as a passenger, and an automobile driven by Charles Henry Morrill.The case was submitted to the jury on a special verdict.The jury found that both drivers were guilty of negligence; that the negligence of Charles Henry Morrill was a proximate cause of the accident; and that the negligence of Boland was not.After denial of a post-trial motion for judgment notwithstanding the findings of fact of the court made pursuant to the jury's verdict or in the alternative for a new trial, defendantOlson Manufacturing Company appeals.

The motion for judgment notwithstanding the findings of fact is based on the contention that at the time of the collision Charles Henry Morrill was not an employee of Olson Manufacturing Company and that, if he was, he was not then engaged in the scope of his employment.The motion for a new trial is based upon alleged errors in the receipt of evidence and misconduct of counsel in his argument to the jury, which will be discussed hereinafter.For the purpose of this appeal, both parties assume that the negligence of defendant Morrill was the sole proximate cause of plaintiff's injury.The principal questions involved are whether Morrill, at the time of the collision, was an employee of Olson Manufacturing Company and, if so, whether he was engaged in the scope of his employment at the time of the collision.

Olson Manufacturing Company, hereinafter referred to as Olson, is in the business of manufacturing and selling farm equipment.Morrill had been selling such equipment for Olson on a year-round basis since 1952.The accident occurred in the early afternoon of December 15, 1961.While there is conflict in the evidence, the jury could find that Morrill was given his own exclusive territories in which to sell but that he could also sell in 'open' territory not assigned to other salesmen.This testimony is disputed by Olson, who stated that Morrill had no exclusive territory but that he could not sell in areas which had been assigned to others.At any rate, Morrill did not sell in the territory from which he was excluded.Morrill testified that if another salesman sold in his territory he would receive a commission on such sale.

Morrill sold equipment under two distinct arrangements.He sold to farmers and to dealers of his own on a basis where he would buy from Olson and resell.Under this arrangement he would set his own price for resale and make his own arrangements for credit with the farmers and dealers.While Olson preferred that Morrill sell at suggested retail prices, he was not bound to do so, and he often sold below the suggested price.He paid Olson with his own money for the items so sold before delivering them and did his own billing on these particular sales.If he had the article with him he would deliver it when sold; otherwise he might deliver it later or have Olson deliver it.

Olson also had established dealers.Morrill sold to such dealers and was paid a commission on these sales monthly.This commission consisted of the difference between the wholesale price and the price at which he sold.Under this arrangement, Olson billed the dealers and usually made its own check on the credit of the dealers, although it sometimes relied upon Morrill's word as to the customer's credit.Risk of nonpayment of the price of these sales rested with Olson, but Morrill would not receive his commission if the purchase price was not paid.

Including Morrill, Olson employed seven men to sell farm equipment.Olson admits that the other six are salesmen but claims that Morrill cannot be so classified.Each salesman is treated differently.Some sell on commission plus expenses, and some sell on salary plus commission.Morrill was the only one who sold on a straight commission or, as we have described above, on a buy-sell arrangement.

Morrill had no quota imposed upon him by Olson.He was under no requirement to work a given number of hours or days.He could take a vacation whenever he wished and for as long as he desired, with no notification to Olson.He was permitted, but not required, to attend sales meetings, but as a matter of fact he attended all such meetings.He could be called upon to service customers but was not required to respond.He was not required to make any reports as to where he was going or where he had been.Other Olson salesmen made daily reports, mailed in weekly, concerning their business activities.Morrill did have a mailbox with his name on it in the company office in Albert Lea, where he lived, and he would occasionally receive messages there from Olson or one Dale Pederson, a sales manager.Records of Morrill's sales, commissions, and other date were kept in the same manner as that of other salesmen.

Morrill was given an order book and a catalog by Olson.Anyone could obtain a catalog, which usually comes with a retail price list.The wholesale price could be figured from a code in the catalog.Morrill was also given sample products, which he either had to pay for or return if he did not sell them.He was given no stationery or business cards.While he gave gifts to his customers, such as pencil sets, he did so at his own expense.

Morrill furnished his own automobile.He owned two automobiles and two trailers.He generally used a Ford Ranchero to pull the trailers, which he frequently used to haul Olson products when he delivered them.He also used the trailers for other purposes.He carried his own automobile liability insurance.He was not reimbursed for any expenses, such as traveling expenses, meals, postage, and telephone calls.

At times Morrill sold small amounts of merchandise for other companies, but these other products were noncompetitive with Olson products and were sold with the consent of Olson.As to these products, he bought from the manufacturer and resold.

In 1953, Morrill had a written employment contract with Olson which expired by its own terms on December 31, 1953.No new written contract was entered into thereafter.The representative of the company who negotiated the first contract with Olson was no longer with the company and the employed under the original written contract was done about confirming the 1953 written contract, and certain territory given to Morrill therein was later withdrawn.While Morrill testified that he assumed he was still employer under the original written contract and that the relationship between Morrill and Olson remained the same as under this contract, this was disputed by Olson, who claimed that they had power to terminate their relationship with Morrill at any time.Morrill was of the opinion that it would be necessary to have 2 weeks' notice to terminate the contract, as was provided for in the written contract.

With respect to Olson's business records, they show that Olson withheld state and Federal income taxes from Morrill's commission payments; that they deducted the employee's share of his social security tax; and that they included him as an employee on workmen's compensation forms filed with the state and on the insurer's audit of drivers.He was also included in unemployment compensation forms and for wages paid under F.I.C.A.

One other individual who operated much like Morrill was a man named Gay Olson.He lived in Albert Lea, had an Olson catalog and order books, and sold to people in the area.Olson filled these orders but did not list him on workmen's compensation or unemployment compensation forms or deduct withholding taxes or social security from his commissions.

At the time of the accident, Morrill was proceeding to the farm of a personal friend, one Egon Jensen.He kept the trailers, equipment, samples, and items he would deliver to customers at this farm.The farm was used as a sort of warehouse for him.At the time of the accident both trailers were empty.He had order blanks, catalogs, and 'water bowls,' an Olson product, in his car.He had not made a sale to Jensen in 10 or 15 years, and he had made no sales for Olson during the month of...