Brose v. Union-Tribune Publishing Co.

• Decision Date: 29 July 1986
• Docket Number: UNION-TRIBUNE
• Citation: Brose v. Union-Tribune Publishing Co., 228 Cal.Rptr. 620, 183 Cal.App.3d 1079 (Cal. App. 1986)
• Parties: Evangelia BROSE, Plaintiff and Appellant, v.PUBLISHING COMPANY, Defendant and Respondent. D003705.
• Court: California Court of Appeals

Page 620

228 Cal.Rptr. 620

183 Cal.App.3d 1079

Evangelia BROSE, Plaintiff and Appellant, v.UNION-TRIBUNE PUBLISHING COMPANY, Defendant and Respondent.

D003705.

Court of Appeal, Fourth District, Division 1, California.

July 29, 1986.

Review Denied Nov. 20, 1986.

Kim Newbrough and Matthew G. Markham, San Diego, for plaintiff and appellant.

Hollywood & Neil and Bruce E. Sulzner, San Diego, for defendant and respondent.

BUTLER, Associate Justice.

Elaine Doucette, a regular newspaper carrier for the San Diego Evening Tribune, went on vacation.She hired Nancy Lawson to deliver the Tribune in her absence.Tribune subscribers on Doucette's route lived on narrow country roads with hills and many turns.Doucette was authorized by the Tribune to use her car to deliver the papers and Lawson used her own car while substituting for Doucette.One July afternoon, Lawson, after delivering a newspaper to a mailbox situated on the left side of the roadway and going into a leftward curve, collided with and injured Evangelia Brose, who was driving in the opposite direction, toward Lawson.

Brose sued Lawson, her husband Bill and the Union-Tribune Publishing Company, publisher of the Tribune (the Company).The Lawsons settled with Brose, leaving the Company as the only remaining defendant in the lawsuit.The Company moved for summary judgment, contending Doucette and hence Lawson were independent contractors and not employees and Lawson's negligence was not imputable to the Company.The judge granted the motion and dismissed the complaint.Brose appeals.We find triable issues of fact and reverse.

I

Summary judgment is a drastic procedure, should be used with caution (Corwin v. Los Angeles Newspaper Service Bureau, Inc.(1971)4 Cal.3d 842, 852, 94 Cal.Rptr. 785, 484 P.2d 953) and should be granted only if there is no issue of triable fact (Lipson v. Superior Court(1982)31 Cal.3d 362, 374, 182 Cal.Rptr. 629, 644 P.2d 822;Code Civ.Proc., § 437c, subds. (a) & (c)).

Brose contends Doucette was an employee of the Company, not an independent contractor.

Whether a person is an employee or an independent contractor is ordinarily a question of fact but if from all the facts only one inference may be drawn it is a question of law.(Baugh v. Rogers(1944)24 Cal.2d 200, 206, 148 P.2d 633;Housewright v. Pacific Far East Line Inc.(1964)229 Cal.App.2d 259, 265-266, 40 Cal.Rptr. 208;Yucaipa Farmers, etc., Assn. v. Ind. Acc. Com.(1942)55 Cal.App.2d 234, 238, 130 P.2d 146.)

"One of the best tests to determine whether the relation is that of an independent contractor or that of employer and employee is the right of control.It is not the fact of actual interference with the control, but the right to interfere, that makes the difference between an independent contractor and a servant or agent.[Citation.]It is not a question of interference, or noninterference, not a question of whether there have been suggestions, or even orders, as to the conduct of the work; but a question of the right to act, as distinguished from the act itself or the failure to act."(Hillen v. Industrial Acc. Com.(1926)199 Cal. 577, 581-582[250 P. 570];see alsoGlobe Indemnity Co. v. Industrial Acc. Com.(1930)208 Cal. 715, 718[284 P. 661];Press Pub. Co. v. Industrial Acc. Com.(1922)190 Cal. 114, 121[210 P. 820].)

Indicative of the right to control is the degree of control over the means of doing the work as opposed to an interest only in the result, the extent to which a worker would have to obey company instructions, and further, the ability of the alleged employer to terminate at will the person performing the services.(Burlingham v. Gray(1943)22 Cal.2d 87, 99-102, 137 P.2d 9.)

The Company, relying heavily on Fleming v. Foothill-Montrose Ledger(1977)71 Cal.App.3d 681, 139 Cal.Rptr. 579, claims it only was interested in the result of the work, i.e., the delivery of its newspaper; it claims it exercised no control over its carriers, here Doucette, in the way the work was performed; it did not require certain ways and means of delivery, such as how to fold the paper, how to drive the route; carriers have to get and train their own substitutes and do not get wages or a salary.¹

Arguing Fleming controls as it sets forth the law, the Company would have us follow it blindly; Brose urges we must distinguish it.The Fleming holding relies on several old appellate courtcases where the newspaper carriers were found to be independent contractors as a matter of law (Batt v. San Diego Sun Pub. Co., Ltd.(1937)21 Cal.App.2d 429, 69 P.2d 216;Bohanon v. James McClatchy Pub. Co.(1936)16 Cal.App.2d 188, 60 P.2d 510; see also an additional case, Rathbun v. Payne(1937)21 Cal.App.2d 49, 68 P.2d 291) and it distinguishes one Supreme Court case, Press Pub. Co. v. Industrial Acc. Com., supra, 190 Cal. 114, 210 P. 820, where the court had upheld workers' compensation benefits for a newspaper carrier finding there was substantial evidence he was an employee (at p. 124, 210 P. 820).²

Our own research has turned up two Supreme Courtcases where the court in similar circumstances found a newspaper carrier and a dealer could be employees and the issue should have been left to the jury.In Robinson v. George(1940)16 Cal.2d 238, 105 P.2d 914, the court reversed a nonsuit in favor of the newspaper and in Burlingham v. Gray, supra, 22 Cal.2d 87, 137 P.2d 9, it reversed a directed verdict where the trial court had found, as a matter of law, a dealer who employed other carriers to be an independent contractor.

Other jurisdictions are split on the issue whether a newspaper carrier is an independent contractor rather than an employee as a matter or law or an issue of fact.(See55 Annot. LawReports 3d 1216 et seq.--approximately a 50-50 split vis-a-vis employee/independent contractor status in the cases listed there.)

We turn to Doucette's agreement with the Company.Title to the newspapers passes to the carrier upon delivery; Doucette paid wholesale $12.63 per hundred for the weekday paper and $16.25 for the Sunday paper; she had to assemble the newspapers "properly" and deliver them regularly; to arrange personally for a substitute and to pay such a substitute separately; and to maintain a list of subscribers which would not be disclosed to others without the Company's consent.Doucette had no right to "sell" the route; she had to furnish a bond to guarantee "faithful performance;" and finally, the agreement could be terminated by either party in 30 days or by the Company immediately if Doucette violated the "agreement in any way."The agreement also contained a provision she could not use an automobile; however, Doucette apparently was excepted from that, certain routes being considered automobile routes, and she being an adult.

The agreement is cursory; certain matters are spelled out but we find many other factors contribute to the Company/Doucette relationship.While the parties' relationship is partially expressed in the writing, the determination of the true relationship should also take into consideration " 'the conduct of the parties while the work is being performed' "(Burlingham v. Gray, supra, 22 Cal.2d 87 at pp. 93-94, 137 P.2d 9), especially where as here a third party is involved and injured because of alleged negligence of the carrier (id. at p. 93, 137 P.2d 9).

We consequently look at the additional evidence in the depositions and declarations presented to the trial court.Doucette was required to properly assemble the newspapers and to deliver them "as soon after receipt as possible."Some customers called Doucette and others the Company when they wished to be deleted or added because of vacations.New subscribers often called the Company; some called her.Doucette picked up the newspapers at a certain place.Doucette submitted no reports but upon request she was required to furnish the Company with a list of new subscribers.She had to finish the route by 4:30 p.m. Customers called her or the Company if they had complaints; the Company relayed information to Doucette, i.e., where to deliver the papers.Sonsteng, the district manager of the Company, specifically agreed to pay Lawson using pre-written checks made out by Doucette.Customers had the option to make payments either to Doucette or to the Company directly, the Company crediting Doucette's account with payments made to it directly.Doucette could otherwise choose her own collection method.The Company generally determined whether an automobile should be used.

If Doucette ran out of papers either she or the Company would deliver them later.She had no leeway in the amount of the bond she had to put up.She would have to get clearance to enlarge her route.The Company decided where to drop off the papers, although there was a possibility they could use her house; the Company pays for the space to drop off the papers.Doucette could fold the papers the way she wanted to or put them in plastic as the weather required; however, would most likely lose the route if she failed to do so when it was raining.Sonsteng stated people usually called the Company if there was a failed delivery; he would then deliver it or ask a carrier to do so.The carriers who use a car must have insurance.The carriers must pay for their papers by the 7th of the month.It is the district manager's responsibility to teach a carrier a route if the previous carrier on the route does not do it.He decides whether it is an automobile route.He also may train a carrier, i.e., how to fold and put rubberbands around the paper.The Company had a policy concerning the papers' placement: on the bicycle routes, on the porch; on the automobile routes, the driveway.Carriers bought polybags and rubberbands from the Company but did not have to.

In Burlingham v. Gray, supra, 22 Cal.2d 87, 137 P.2d 9, a party was killed in a collision with a newspaper carrier who was working for a dealer for a publishing...