Cooke v. EF Drew & Co.
| Decision Date | 25 June 1963 |
| Docket Number | Docket 28000.,No. 353,353 |
| Citation | 319 F.2d 498 |
| Parties | Blanche COOKE and Arthur J. Cooke, Plaintiffs-Appellants, v. E. F. DREW & CO., Inc., Defendant-Appellee. |
| Court | U.S. Court of Appeals — Second Circuit |
Edwin F. Woodle, Cleveland, Ohio, Stanley M. Estrow, New York City, on the brief), for plaintiffs-appellants.
George J. Conway, New York City, for defendant-appellee.
Before FRIENDLY, KAUFMAN and MARSHALL, Circuit Judges.
Appellants, husband and wife and residents of Ohio, brought an action for injuries suffered in an automobile accident there, against E. F. Drew & Co., a New York corporation maintaining its principal place of business in New York. The appellants take this appeal from a judgment entered upon a jury verdict for the defendant. They assert that the jury was improperly instructed by Judge Bonsal in several respects with regard to the appellee's responsibility for the allegedly authorized acts of one Hinchcliffe, an employee, and the negligence of his friend, one O'Malley.
The essential facts of the case do not appear to be in dispute. Drew, a manufacturer of detergents and dishwashing equipment, employed Hinchcliffe as a salesman and serviceman. He was to service a large territory in Ohio, compensation for which was to be solely in the form of commissions on products sold. While on his rounds, Hinchcliffe was expected to bear all expenses, and in fact he used his own car in calling on customers. Although he was required to furnish daily and "other routine" reports on his activities to the appellee, the selection of customers and the times at which they were to be visited were left completely to his discretion.
On August 30, 1954, Hinchcliffe called on several customers. Emerging from one such visit, he met his friend O'Malley, and together they sought relief from the warm Ohio summer at the nearby Merry Widow Bar. Ample refreshments spurred Hinchcliffe's will to serve but at the same time wearied him; he decided to visit another customer, but was "tired" and accordingly requested O'Malley to drive. The two set out in Hinchcliffe's car, Hinchcliffe giving precise directions as to the route to be followed to O'Malley, who was at the wheel. En route, the car collided with that occupied by the appellants, causing serious injury to appellant Blanche Cooke. Appellants now seek to hold Drew liable on principles of respondeat superior.1
In submitting the case to the jury, the District Judge permitted them to determine, in arriving at their general verdict, whether Hinchcliffe was an "employee" of Drew at the time of the accident. Appellants now assert that this constituted reversible error, and that Hinchcliffe was an "employee" as a matter of law. A request for such an instruction was, in effect ( such request quite liberally), made by them in the trial court. But in order that liability be fastened upon Drew, Hinchcliffe must be found to be an "employee" in the special sense of a "servant" for whose acts a master is responsible at common law. The Restatement of Agency (Second) § 220(1) emphasizes that the master-servant relationship turns fundamentally upon the master's right to control the actions of his subordinate. A particularly apt illustration posits a commission salesman, devoting full time to the sale of his employer's products, but driving his own car and free to select his own customers. Such an individual is not deemed a servant. Restatement of Agency (Second) § 220, Illus. 7.
This "control" test has been applied in a similar manner in several Ohio cases. In Pickens & Plummer v. Diecker & Bro., 21 Ohio St. 212 8 Am.Rep. 55 (1871), still the most authoritative Ohio decision, the state Supreme Court found that a salesman, whose contract called for a fixed salary and whose traveling expenses were paid by the defendant company, was a servant. The court appeared to emphasize that the salesman's "time belonged to his employers and he was entitled to be paid irrespective of results." 21 Ohio St. at 215. Drew, on the other hand, apparently imposed virtually no restrictions upon Hinchcliffe's manner of operation and seemed far more concerned with the results achieved than with Hinchcliffe's means of attaining them. More recently, in Plost v. Avondale Motor Car Co., 55 Ohio App. 22, 8 N.E.2d 441 (1935), an Ohio intermediate appellate court dealt with the problem of derivative liability arising from an accident caused by the negligence of an automobile salesman. The salesman was obligated to devote all his time to the sale of defendant's automobiles; he was under the direct control and supervision of defendant's sales manager, and carried defendant's sales book, order blanks, and calling cards. As in the instant case, he was paid on a commission basis, was required to make daily reports upon his activities, and used his own car in his work. On this record, the court found, as a matter of law, that no master-servant relationship existed. Citing the original Restatement of Agency, and the section discussed above, the Ohio court insisted that a contractual right to control the actions of the employee was a necessary precondition to the invocation of respondeat superior liability, and that proof of this precondition was absent. See also Stockwell v. Morris, 46 Wyo. 1, 22 P.2d 189 (1933).
Even in the light of these cases, this court might well refuse to upset a jury finding that Hinchcliffe was, as a matter of fact, a servant — if the question was properly submitted. See Amstutz v. Prudential Ins. Co. of America, 136 Ohio St. 404, 26 N.E.2d 454 (1940). But it is quite another thing — and something which we are not now prepared to do — to say that the question is so free from doubt as to warrant a directed verdict to that effect in light of the varying circumstances which are relevant to the traditional test of "control", see Restatement of Agency (Second) § 220.2 If anything, we find that the charge, by merely requiring that the jury find as one of the conditions to Drew's liability that Hinchcliffe be an "employee" — something it could hardly fail to do — was unduly favorable to the appellants.
Appellants also contend that the District Court erred in failing to instruct the jury that Hinchcliffe was authorized as a matter of law to employ an automobile in his work. It should be noted that the court's charge, calling particular attention to the wide territory to be covered, the heavy equipment which Hinchcliffe was to carry, and the instructions forwarded by the appellee concerning the use of an automobile, seems in substance identical to that requested. In any event, while we agree with appellants that Hinchcliffe's use of an automobile must have been contemplated by Drew, we find it impossible to believe that the jury might have found otherwise. In this regard, the trial judge's explicit reference to the circumstances which made the use of a car inevitable might be viewed as, in essence, an instruction that such a use was implicitly authorized.
The major contention raised on appeal relates to the circumstances under which Drew might be bound by the negligence of O'Malley, Hinchcliffe's obliging associate. The District Judge charged that the defendant could be held liable only if Hinchcliffe had been expressly or impliedly authorized to permit another to drive his car; in the absence of any such authority or actual negligence on the part of Hinchcliffe, Drew was not to be held responsible, regardless of whether Hinchcliffe and O'Malley were pursuing the defendant's business at the time the accident occurred. We are not convinced that it was error so to charge.
The requirement that a servant possess actual authority — express or implied — to employ an assistant before that assistant's torts may be imputed to the master is supported in this country by the overwhelming weight of authority. See Restatement of Agency (Second) § 241, and Reporter's Notes thereon; ibid. §§ 77-81; Mechem, Outlines of the Law of Agency § 378 (4th ed. 1952); Mechem, "The Liability of a Master to Third Persons for the Negligence of a Stranger Assisting His Servant," 3 Mich.L.Rev. 198 (1905). The position espoused by the appellants, and embodied by them in the requested instructions denied by Judge Bonsal, would require that Drew be held liable if Hinchcliffe was present at the time of the alleged negligence or if Drew's business was being pursued. Such a contention was expressly rejected, as a matter of New York common law, by Judge Cardozo speaking for the Court of Appeals in Grant v. Knepper, 245 N.Y. 158, 162, 156 N.E. 650, 54 A.L.R. 845 (1927).
Ohio law on the matter is admittedly not so clear. In Malloy v. Svoboda, 29 Ohio App. 331, 163 N.E. 579 (1928), an intermediate appellate court refused to find that the absence of actual authority precluded the imposition of derivative liability. There, a newspaper company was held responsible for the negligence of a boy enlisted by a company truckdriver to aid in the distribution of papers; the boy, who was to toss the papers from the truck, was found a "mere extension" of defendant's employee. But Malloy, although helpful to the appellants, does not seem representative of the attitude of Ohio courts. Thus, more recently, in Sandlin v. Hamilton Auto Sales Co., 49 Ohio App. 313, 197 N.E. 238 (1934), another intermediate appellate court took a far more restrictive view of the principles of respondeat superior. Finding that an automobile salesman was not negligent in permitting his wife, concededly an excellent driver, to demonstrate one of defendant's cars to a prospective customer, the court held that this unauthorized delegation of the salesman's duties absolved the defendant company of any liability for injuries to the customer, even though they were apparently caused by structural defects in the car itself. And in Schreiber v. Universal Car Co., 60 Ohio App. 263, 20 N.E.2d 544 (1939), still another ...
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