Gibbs v. Miller, 1171A244

• Decision Date: 12 June 1972
• Docket Number: No. 1171A244,1171A244
• Parties: Aubrey GIBBS et al., Defendants-Appellants, v. Gene MILLER and Christine Miller, Plaintiffs-Appellees.
• Court: Indiana Appellate Court

Page 592

283 N.E.2d 592

152 Ind.App. 326

Aubrey GIBBS et al., Defendants-Appellants, v. Gene MILLER and Christine Miller, Plaintiffs-Appellees.

No. 1171A244.

Court of Appeals of Indiana, Third District.

June 12, 1972.

Rehearing Denied July 27, 1972.

Arthur A. May, Crumpacker, May, Levy & Searer, South Bend, for defendants-appellants.

Daniel J. Harrigan, Bayliff, Harrigan, Cord & Maugans, Kokomo, David L. Matthews, South Bend, for plaintiffs-appellees.

HOFFMAN, Chief Judge.

The primary issue presented by this appeal is whether the negligence of Aubrey Gibbs may be imputed to Sears Roebuck and Company (Sears) under the theory of respondeat superior.

The facts viewed most favorably to appellees may be summarized as follows:

Aubrey Gibbs was employed by Sears as a 'commission' salesman in their floor covering department. He was paid a commission on the sales made by him and accepted by Sears. In addition thereto, he received a draw of $100 per week and nine cents per mile as reimbursement for mileage in making calls on prospective customers. He also received fringe benefits of insurance, profit sharing and paid vacations.

Gibbs testified that he usually worked from 40 to 45 hours per week. He testified that he was scheduled to work from 28 to 32 hours per week in the store and the remainder of his time was spent in making calls on prospective customers outside the store. He testified that most of his prospects consisted of 'contacts' he made while working on the floor, and that if he made a contact with prospects on the floor he would then set up a definite appointment at the customers' convenience to go to their home.

On November 6, 1969, Gibbs was not scheduled to work in the store. However, he had made several appointments to see prospective customers. His first appointment was at 10:30 A.M. in Elkhart, the second was also in Elkhart at 2:30 P.M., and the third was at 4:30 P.M. in Mishawaka. hawaka. The 10:30 A.M. appointment involved a sale from which Gibbs received his commission. He also testified that he received his mileage reimbursement for the trip to Elkhart.

Gibbs testified that after the 10:30 A.M. appointment he left the customer's house to return to his own home in South Bend for lunch. He testified that Sears had not given directions concerning the routes to take, and that he had no scheduled time to stop for lunch. He also testified that he did paper work at home. While enroute to his home for lunch Gibbs negligently collided with an automobile driven by Gene Miller.

On March 18, 1970, plaintiffs-appellees Gene and Christine Miller filed their amended complaint against Gibbs, Sears and C. T. Corporation System, Agent, alleging, inter alia, that Gibbs, while within the scope of his employment with Sears negligently drove his automobile into a motor vehicle driven by plaintiff-Gene Miller, and demanding judgment for damages to plaintiff-Gene Miller in the amount of $115,000, and judgment for damages to plaintiff-Christine Miller in the amount of $50,000 for loss of consortium of her husband.

The defendants filed their answer containing, inter alia, a denial of the allegations of the amended complaint. Trial was to a jury which returned a verdict for plaintiff-Christine Miller awarding her damages in the amount of $7,500, and for plaintiff-Gene Miller awarding him damages in the amount of $30,000. Judgment was entered on the verdict. After the motion to correct errors filed by Sears was overruled by the trial court, this appeal was perfected.

On appeal Sears first contends that the uncontradicted evidence shows that at the time of the collision Gibbs was on his day off, and was returning from a call on a prospective customer to his own home for lunch. Therefore, Sears contends Gibbs' negligence cannot be imputed to Sears under the doctrine of respondeat superiod. In support of this contention Sears cites the following cases: Reinhart v. Ideal Pure Milk Co., Inc. (1963), 135 Ind.App. 338, 193 N.E.2d 655; City of Elkhart v. Jackson (1937), 104 Ind.App. 136, 10 N.E.2d 418; Neyenhaus v. Daum, Admr. (1936), 102 Ind.App. 106, 1 N.E.2d 281.

These cases merely show the general rule that usually an employee is not within the scope of his employment during the lunch period. However, the determination of whether an employee is acting within the scope of his employment at the time of an accident is a factual determination to be made in light of the facts and circumstances peculiar to each case. Reinhart v. Ideal Pure Milk Co., Inc., supra.

Generally, a master is liable for the torts of his servant committed while such servant is acting within the scope of his employment. Great American Tea Co. v. Van Buren (1941), 218 Ind. 462, 33 N.E.2d 580; Princeton Coal Co. v. Dowdle (1924), 194 Ind. 262, 142 N.E. 419. This long adhered to rule is referred to in Indiana as the doctrine of respondeat superior. Annis v. Postal Telegraph Co. (1944), 114 Ind.App. 543, 546, 52 N.E.2d 373 (transfer denied).

The general test in determining the existence of a master-servant relationship is the right to direct and control the conduct of the alleged servant at the time the negligent act occurred. Railway Express Agency, Inc. v. Bonnell (1941), 218 Ind. 607, 33 N.E.2d 980,34 N.E.2d 927; Lieber Exrx. v. Messick (1930), 92 Ind.App. 264, 173 N.E. 238. In Indiana the phrase 'right to control' is used not in a specific sense but in a general sense. It refers only to the right and not the exercise of control over the servant. This is especially true where the work is such as to not demand a great deal of supervision. Palmer v. Stockberger (1963), 135 Ind.App. 263, 193 N.E.2d 384; N.Y. Cent. R.R. Co. v. Northern Ind. Pub. Ser. Co. (1966), 140 Ind.App. 79, 221 N.E.2d 442. Among the indicia of a master-servant relationship are the right to discharge, mode of payment, supplying of tools or supplies by the employer, belief by the parties in the existence of a master-servant relationship, control over the means used or result reached, length of employment and the establishing of work boundaries. Lazarus v. Scherer (1931), 92 Ind.App. 90, 174 N.E. 293; Restatement (Second) of Agency, § 220, at 485 (1958).

Prior cases have held the conduct of a servant to be within the scope of his employment where the conduct was actuated to an appreciable extent by the purpose to serve the master, Great American Tea Co., supra; where the conduct was performed substantially within the authorized time, Vincennes Packing Corp. v. Trosper (1939), 108 Ind.App. 7, 23 N.E.2d 624 (transfer denied); or where the work is the kind the servant is employed to perform, Biel, Inc. v. Kirsch (1958), 240 Ind. 69, 161 N.E.2d 617.

In the instant case, the evidence shows that the day of the accident was scheduled as Gibbs' day off, and at the time of the accident Gibbs was returning to his home for lunch. These facts, however, are not alone controlling. The evidence, as hereinbefore summarized, shows that in going to the 10:30 A.M. appointment in Elkhart, Gibbs was engaged in a task incidental to his everyday employment, that is, calling on a prospective customer. In fact the sale was completed and Gibbs received the commission therefrom. At the time of the accident Gibbs was returning from this appointment. He was carrying samples and supplies furnished by Sears and had the sales contract in his possession. He had other appointments scheduled later in the day, and he telephoned Sears immediately after the collision to cancel these appointments. He was within Sears' area of distribution and was exercising the discretion allowed him by Sears in choosing the routes to take and times for scheduling his appointments. He testified that he often did paper work at home. He also testified that he was reimbursed for his mileage both to and from Elkhart.

This court will not weigh the evidence. It is only where the evidence is without conflict and will lead to a conclusion contrary to the one reached by the trial court will the decision be reversed. Etcherling v. Jack Gray Transport, Inc. (1971), Ind.App., 267 N.E.2d 198, 24 Ind.Dec. 682.

None of the facts contained in the record before us, standing alone, are sufficient to support the verdict of the jury. However, considering all of the evidence and the reasonable inferences to be drawn therefrom, we cannot say as a matter of law that the imputation of Gibbs' negligence to Sears under the doctrine of respondeat superior was erroneous. There is sufficient evidence in the record before us, together with reasonable inferences flowing therefrom, from which the jury could have found that a master-servant relationship existed between Sears and Gibbs and that at the time of the accident Gibbs was acting within the scope of his employment.

For this reason, the trial court committed no error in overruling Sears' motion for summary judgment, motion for judgment on the evidence at the conclusion of plaintiffs' case and motion for judgment on the evidence at the conclusion of all the evidence.

Sears contends that the negligence of Gibbs cannot be imputed to it because Gibbs was employed as an independent contractor. We cannot agree.

In Nash v. Meguschar (1950), 228 Ind. 216, at 220--221, 91 N.E.2d 361, at 363, it was held:

'Our courts have been unable accurately to define the term 'independent contractor' to govern in all cases. As a result there are many definitions and frequently a new set of facts brings forth a variation from all existing definitions. A fairly accurate definition of the term as applied to the facts in the instant case is contained in 27 Am.Jur., Independent Contractors, § 2, p. 481, thus:

"Perhaps one of the most frequently quoted is to the effect that an independent contractor is one who, in exercising an independent employment, contracts to do certain work according to his own methods, and without being subject to the control of his employer, except as to the product or result of his work.'

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