Dohner v. The Winfield Wholesale Grocery Company and C. A. Harris

• Decision Date: 07 June 1924
• Docket Number: 24,901
• Parties: IRWIN DOHNER, Appellant, v. THE WINFIELD WHOLESALE GROCERY COMPANY and C. A. HARRIS, Appellee
• Court: Kansas Supreme Court

226 P. 767

116 Kan. 237

IRWIN DOHNER, Appellant, v. THE WINFIELD WHOLESALE GROCERY COMPANY and C. A. HARRIS, Appellee

No. 24,901

Supreme Court of Kansas

June 7, 1924

Decided January, 1924

Appeal from Butler district court. ALLISON T. AYRES, judge.

Judgment affirmed.

SYLLABUS

SYLLABUS BY THE COURT.

1. AUTOMOBILE ACCIDENT--Negligence of Independent Contractor--Oral Contract as Salesman for Defendant--Relation of Parties a Question of Law. Where there is no material conflict in the evidence with respect to the terms of an oral contract, and such terms are not in any respect ambiguous or uncertain, the relation of the parties to it is a question of law for the court.

2. SAME. 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 each 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.

J. M. Pleasant, of El Dorado, for the appellant.

A. L. Noble, W. A. Ayres, Hal M. Black, and C. A. McCorkle, all of Wichita, for the appellee.

OPINION

HOPKINS, J.:

The action was one for personal injuries sustained by the plaintiff by being run over by an automobile driven by the defendant Harris. Trial was to the jury; verdict against both defendants for $ 1,800. The court, on consideration of a motion for a new trial by the grocery company, concluded that Harris was an independent contractor and that the grocery company was not liable. The motion for new trial was granted solely on that ground. The plaintiff appeals.

The plaintiff sought to hold the defendant grocery company responsible for the consequences of the negligence of Harris on the theory of respondeat superior.

The grocery company's place of business was at Wichita. It made an oral contract with Harris to canvass a certain prescribed territory covering sixteen or seventeen towns. Under the contract he was to take orders for goods and collect money for goods which had been delivered. He was to be paid a minimum compensation of $ 175 per month, and if he should produce more than a minimum amount of business his compensation was to be increased in the proportion that his sales should exceed the minimum amount. Out of such compensation Harris was to transport himself and pay all his expenses. He was at liberty to select any manner of transportation and any route and times of visiting the different towns that he chose, the only requirement being that he should call on the trade of the whole territory once each week.

The injury complained of occurred on the first day that he entered upon the execution of this contract. Harris provided himself with an automobile and started out on his territory Monday morning. The company provided him with samples and gave him a list of the merchants in his territory who had purchased goods the preceding week, and from whom, presumably, he was expected to collect. He was asked to try to open an account at Oil Hill, one of the towns on his territory.

He took a passenger with him for hire, who rode with him the entire trip over the territory that week and paid Harris for his transportation. The two had visited Benton, Towanda, Midian and Oil Hill, and were approaching El Dorado when the accident occurred. The instructions submitted to the jury the question of whether the relation of master and servant existed between the grocery company and Harris, or whether the latter was an independent contractor; that, if the latter was the case, the grocery company would not be liable. The jury found that Harris was not an independent contractor.

The plaintiff contends that there was a dispute in the testimony as to the terms of the contract, and that therefore the question was properly for the jury; that the court committed error in setting aside the verdict and granting a new trial. The defendant contends that there was no conflict in the evidence as to the terms of the contract, and that therefore the legal relation of the parties was purely a question of law for the court. Two witnesses only testified concerning the contract.

Harris testified:

"It was stated that I was to have $ 175 per month salary and pay my own expenses. I was not to receive commissions on sales."

On cross-examination:

"I commenced working for $ 175 per month. There was an understanding that if I increased the business I was to get more."

Mr. Bevis, manager of the grocery company, testified:

"My arrangement with him was that he was to take it on the basis of $ 175, which would be merely a drawing account. We give the men $ 175 providing he produces on that territory. He would not get any more than $ 175 unless he produced a certain amount of business. . . . The arrangement with Harris was that we would give him $ 175 per month, and if he increased that business he would get more money on the same basis we paid for [our] other salesmen. . . . We gave him $ 175 per month."

There was no material discrepancy on this point. Nor does there appear any conflict in the testimony as to the order in which Harris should visit the towns.

Mr. Bevis testified:

"There was no requirement as to the order in which he made the towns, just so he made them and called on the trade. They had a routine way of making the towns. He was expected to make his own routine; in fact, I think he changed a time or two while he was on it."

Mr. Harris testified:

"There was no requirement in particular as to the order in which I was to visit towns. I was expected each week to visit the...