"The question for decision in this case is as to the legal relation between the employer, Electrolux Corporation, and its employee, Morton H. Thackston. The question is presented by the demurrer to the evidence filed by the defendant, Electrolux Corporation. The plaintiff claims that the relationship at the time of the accident was that of master and servant. If so, the Electrolux Corporation is liable, and judgment should be for the plaintiff. The defendant, Electrolux Corporation, claims that the relationship was that of employer and independent contractor. If that is correct, the defendant is not liable and judgment should be for it.
"What that relation was is to be determined by the contract of employment. There is no conflict in the evidence, nor between the evidence and the contract of employment. The determination of the question is a matter of law on undisputed facts.
"The contract recites that the Electrolux Corporation manufactures and sells a cleaner and air purifier, with its accessories and supplies, and that Thackston has requested it to grant him a nonexclusive franchise to sell its products in the territory of the Roanoke Branch office. The evidence shows this territory covers that part of Virginia west of a point some 20 miles east of Appomattox, and some parts of southern West Virginia. The pertinent parts of trie contract provide:
"All orders should be taken on printed forms furnished by Electrolux, the terms of which should not be varied;
"Credit sales should be subject to approval of Electrolux;
"The sales price stated in the printed form of sale contract should not be varied, and no allowance made except for used cleaners as provided in the book of trade-in allowances issued by Electrolux, and for discounts for cash as provided in the sales contract;
"That Thackston would sell no other cleaners, except used cleaners taken in on sales;
"That Thackston would receive as his sole compensation, and in full of all his expenses, a specified commission;
"That Thackston would protect and indemnify Electrolux against any claims in contract or tort asserted by reason of the conduct of his business;
"That Thackston would not misrepresent any fact concerning Electrolux products, but might refer customers to any statements in descriptive literature published by Electrolux, and to its guarantee, but should not otherwise make any representation, warranty or guarantee respecting Electrolux products, and should not pledge the credit of Electrolux, or make any contract or assume any obligation on behalf of Electrolux;
"That Electrolux from time to time might submit to Thackston suggestions as to methods of handling and selling Electrolux products with a view to promotion sales, but Thackston could accept or reject such suggestions as he wished, and that Thackston might conduct his business and devote such time thereto as he deemed advisable;
"That Thackston would promptly remit to the Roanoke office all money and trade-in cleaners received by him in making sales;
"That the employment agreement should continue in force and effect and govern all relations and transactions between the parties until cancelled or terminated, and it might be cancelled or terminated under the following provisions:
"1. By either party on thirty days' notice without cause;
"2. By Electrolux, without notice, if Thackston violated any provision of paragraphs 3, 8 or 10 of the contract. (Paragraph 3 provides for taking orders on printed forms, the sales on credit shall be subject to the approval of Electrolux, that the sales price should not be varied, and that Thackston would sell no other cleaners. Paragraph 8 provides that Thackston should not misrepresent any facts about the cleaners; and paragraph 10 provides that Thackston should promptly remit his collections and trade-ins).
"3. By Electrolux without notice if Thackston entered into a similar agreement with any other branch office.
"That all rights of Thackston under the agreement were personal and nonassignable.
"The evidence shows that Thackston took orders and delivered cleaners at the same time; that he did not repossess machinesor make collections; that he was not required to have an automobile; that the one he was using at the time of the accident was his own, and he paid all operating expenses; that the company made no suggestions as to performing his work, and did not suggest any prospects for him to see; that he was not required to make any number of sales, or to work any particular time; that he used his own judgment and discretion as to when, where and how he would go, what means of transportation he would use, how much time he would work, or whether he would work at all. He had been using the automobile involved in the accident about a year, with the knowledge of M. E. Thackston, the branch manager, and kept it at the home of M. E. Thackston when he was there, and at other times M. E. Thackston did not know where he kept it, and that he was at M. E. Thackston's home sometimes over week-ends, sometimes every two or three weeks; that at the time of the accident he was taking two machines in his automobile to Grundy in the hope of selling them.
"Our problem is to apply the law to these facts and determine whether M. H. Thackston was a servant or an independent contractor.
"There are a multitude of cases on the subject, but none directly in point in Virginia. Most of them have been either discussed or referred to in the very thorough and helpful briefs filed by counsel. It would be as impossible as it is unnecessary to discuss all of them in this note of decision. Only a few may be quoted from to indicate what seems to be the favored rule and the reason for it. In deciding the question on facts similar to those of this case, many courts have reached the conclusion that the relation of independent contractor exists; a few have held that it is for the jury to say, while others have held that the relation is one of master and servant. Counsel in this case are not at odds as to the correct guide to follow. Both agree that the final test is the right of control. Their difference seems to lie in the activity that is subject to control. The plaintiff seems to contend that if the employer has the power to control the employee in the things involved immediately in the making of the contract of sale, the employee is a servant. The defendant asserts that the power of control must extend to the activities of the employee in the things to be done preparatory to the making of the contract
of sale before the employee is a servant. And that is one of the points of departure in the decided cases.
"Ideal Steam Laundry v. Williams, 153 Va. 176, 149 S.E. 479 [480], names the four elements to be considered in determining whether the relation of master and servant exists, and adds: 'But * * * the first, second, and third of these elements are not essential to the relationship. * * * The "power of control" is the most significant element * * *.'
"Hann v. Times-Dispatch Publishing Co., 166 Va. 102, 184 S.E. 183 [184], is to the same effect, but adds that which is readily confirmed by an examination of the cases, that 'No hard and fast rule can be laid down for ascertaining whether the status is one or the other. It must be determined from the facts of the particular case in the light of well-settled principles.' The court said further:
" 'In two recent cases we have said: "The ordinary test is this: 'Who has the power to control and direct the servants in the performance of their work?' "'
"This case held that under the facts the employee was a servant and within the provisions of the Workman's Compensation act, but this statement from the opinion indicates the difference between that case and this:
" 'In the instant case the requisite "power to control" was unquestionably in the newspaper company. Both the route and the list of customers were its property. Hann could not deviate therefrom. He had to report at a certain time and complete his route by a certain hour. There is no suggestion that he had the right to sublet his work. The services were of a personal nature, and, if unsatisfactory, Hann was subject to discharge at the will of the supervisor. This was true of the forty-six other carriers who were employed on the same basis.'
"The case of Press Publishing Co. v. Industrial Accident Comm., 190 Cal. 114, 210 P. 820, is cited, and in the quotation is this significant...
