Griffith v. Electrolux Corp.

• Decision Date: 25 November 1940
• Docket Number: Record No. 2254.
• Citation: 176 Va. 378
• Parties: HELEN GRIFFITH, BY, ETC. v. ELECTROLUX CORPORATION AND M. H. THACKSTON.
• Court: Virginia Supreme Court

Page 378

176 Va. 378

HELEN GRIFFITH, BY, ETC. v. ELECTROLUX CORPORATION AND M. H. THACKSTON.

Record No. 2254.

Supreme Court of Virginia, Richmond.

November 25, 1940.

Present, Campbell, C.J. and Holt, Hudgins, Gregory, Eggleston and Spratley, JJ.

1. INDEPENDENT CONTRACTORS — Master and Servant — Relationship to Be Determined by Contract of Employment. — Whether a relationship was that of master and servant or of employer and independent contractor is to be determined by the contract of employment.

2. INDEPENDENT CONTRACTORS — Master and Servant — Questions of Law and Fact — Relationship Created. — Whether a contract of employment creates the relationship of master and servant or employer and independent contractor is a matter of law on undisputed facts.

3. INDEPENDENT CONTRACTORS — Master and Servant — Test of Relationship Is Right of Control. — In determining whether a relationship is that of employer and independent contractor or master and servant, the final test is the right of control.

4. INDEPENDENT CONTRACTORS — Master and Servant — Relationship Determined from Facts of Each Case. — Whether a relationship is that of employer and independent contractor or master and servant must be determined from the facts of each particular case.

5. INDEPENDENT CONTRACTORS — Master and Servant — Status of Salesman — Extent of Control Necessary to Make Salesman a Servant. — In determining whether a relationship is that of master and servant or of employer and independent contractor, in the case of a salesman, the power of control must extend to the activities of the salesman preliminary to the making of the contract of sale before it can be established that the salesman is a servant.

6. AUTOMOBILES — Independent Contractors — Test to Determine Whether Driver Is Servant or Independent Contractor. — In ascertaining whether the driver of an automobile is an agent or independent contractor, the controlling or principal test is generally stated to be as to whether or not the employer, using that term in a broad sense, has the right to control the details of the work to be done by the servant or agent, or whether the latter represents the former only as to the results to be accomplished.

7. AUTOMOBILES — Independent Contractors — Salesman Operating Own Car. — A saleman operating his own car who is not subject to control in the manner in which, or time during which, he shall work, is ordinarily an independent contractor, and the use of his own automobile for transportation in his territory is not unlawful or dangerous to others so as to affect his status as an independent contractor.

8. AUTOMOBILES — Independent Contractors — Salesman Operating Own Car. — A city salesman, selling goods on commission, who has complete choice of the routes he will take within the territory assigned him, and who furnishes his own car for visiting his customers, is an independent contractor, and not a servant, so that the employer is not liable for injuries inflicted by the salesman's negligence in operation of his machine; and a salesman who operates an automobile at his own expense, whose movements are not controlled by the employer, except that he shall make his territory once each week, is, as to the operation of the car, an independent contractor.

9. AGENCY — Liability of Principal for Acts of Agent — For Physical Harm Caused by Negligent Physical Conduct of Agent. — A principal is not liable for physical harm caused by the negligent physical conduct of an agent, who is not a servant, during the performance of the principal's business, unless the act was done in the manner directed or authorized by the principal or the result was one intended or authorized by the principal.

10. AGENCY — Liability of Principal for Acts of Agent — Incidental Negligence. — A principal employing another to achieve a result but not controlling nor having the right to control the details of his physical movements is not responsible for incidental negligence while such person is conducting the authorized transaction.

11. MASTER AND SERVANT — Liability of Master for Acts of Servant — Test Is Right to Control. — The test of one's liability for the act or omission of his alleged servant is his right and power to direct and control his imputed agent in the performance of the causal act or omission at the very instant of the act or neglect.

12. MASTER AND SERVANT — Liability of Master for Acts of Servant — Relationship Must Exist at Time and in Respect to Thing Causing Injury. — A master is liable for acts of his agent under the doctrine of respondeat superior only where the relationship of master and servent exists at the time and in respect to the very thing causing the injury and from which it arises.

13. AUTOMOBILES — Independent Contractors — Salesman — Evidence Showing Relationship Was that of Principal and Independent Contractor — Case at Bar. — In the instant case, an action for injuries received in an automobile accident, defendant corporation contended that the driver of the automobile causing the accident was not the corporation's servant but was an independent contractor. The evidence showed that the driver of the car took orders for the corporation and delivered the products at the same time; 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 that 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; that he was paid on a commission basis, and that the power of dismissal was not absolute, but conditioned on a violation of the terms of the contract between the driver and the company.

Held: That the driver was an independent contractor and not a servant, and the company was not responsible for his negligence in causing the accident.

14. AUTOMOBILES — Independent Contractors — Salesman — Effect of Agreement to Indemnify Employer — Case at Bar. — In the instant case, an action for injuries received in an automobile accident, defendant corporation contended that the driver of the automobile causing the accident was not the corporation's servant but was an independent contractor. Plaintiff contended that this contention of defendant was inconsistent and contradictory, since a clause of the contract between the driver and the company stated that the driver agreed to protect and indemnify the company against any claims which might be asserted against it, either in contract or tort, by reason of the conduct of his business.

Held: That the mere fact that a sales representative agrees to indemnify his employer for any claim which may be asserted against it by reason of his conduct in effecting sales, or the agreement of such representative to furnish a bond for the faithful performance of his contract with the employer, does not affect the relationship of the parties. The existence of such indemnifying agreement does not create the relationship of master and servant or principal and agent and the non-existence of such an agreement does not change the relationship if the other essentials are present.

15. OFFICER AND AGENTS OF PRIVATE CORPORATIONS — Powers — Branch Manager — To Bind Principal by Statements Not Connected with Duties — Case at Bar. — In the instant case, an action for injuries received in an automobile accident, defendant corporation contended that the driver of the automobile causing the accident was not the corporation's servant but was an independent contractor. Plaintiff contended that the company had admitted its liability because of statements made by the uncle of the driver of the automobile who was a branch manager of the corporation. On the day after the accident the branch manager went to the scene of the accident and instructed the owner of the other automobile to have it repaired and send the bill to the company. This was done and payment refused. The branch manager's duties as defined in his contract were limited to the conduct of the office for the purpose of checking in and checking out machines sold, of receiving monies due and remitting to the home office, and engaging representatives.

Held: That the branch manager had no express or implied authority to bind his principal by statements or promises not connected with the duties defined in his contract.

16. OFFICERS AND AGENTS OF PRIVATE CORPORATIONS — Admissions — Admissibility against Corporation. — In order to render admissions of corporate officers or agents admissible against the corporation, they must have been made while such officers or agents were acting for the corporation and within the scope or apparent scope of their authority. The declarations or admissions must be made in their official capacity and not in their capacity as individuals.

17. AGENCY — Evidence of Agency — Declarations or Admissions of Agent. — The admissions or statements of an alleged agent that he was the agent of another are not evidence of that agency. The fact must be proved by other evidence.

Error to a judgment of the Circuit Court of Tazewell county. Hon. A. C. Buchanan, judge presiding.

The opinion states the case.

A. T. Griffith and Erma Griffith Greenwood, for the plaintiff in error.

Horace M. Fox, for the defendant in error.

HUDGINS, J., delivered the opinion of the court.

Helen Griffith, an infant, by her next friend, Bessie Griffith, instituted this action against M. H. Thackston and the Electrolux Corporation to recover damages for personal injuries received in an automobile accident. The Electrolux Corporation demurred to the evidence. The jury returned a verdict against both defendants. The trial court entered judgment on the verdict...