Houdek v. Gloyd

• Decision Date: 07 December 1940
• Docket Number: 34962.,34961
• Citation: 152 Kan. 789,107 P.2d 751
• Parties: HOUDEK v. GLOYD et al. (two cases)
• Court: Kansas Supreme Court

107 P.2d 751

152 Kan. 789

HOUDEK v. GLOYD et al. (two cases)

Nos. 34961, 34962.

Supreme Court of Kansas

December 7, 1940

Rehearing Denied Feb. 3, 1941.

Syllabus by the Court.

Where employment contract is oral, there is no material conflict in the evidence, terms of the contract are not ambiguous or disputed and only one inference can be drawn, question of whether "master and servant relationship" exists is question of law for the court, and otherwise it is a question of fact for the jury.

A "master" is a principal who employs another to perform service for him and who controls or has the right to control the physical conduct of the other in the performance of such service.

A "servant" is a person employed by a master to perform service in his affairs, whose physical conduct in the performance of the service is controlled or is subject to the right to control by the master.

An "independent contractor" is a person who contracts with another to do something for him but who is not controlled by the other nor subject to the other's right to control with respect to his physical conduct in the performance of an undertaking.

An alleged employer may make himself liable for negligence of employee by retaining right to direct and control the time and manner or means of execution of the work in which the employee is engaged.

In determining whether alleged master exercises control over servant's acts so that master is liable for servant's negligence, all circumstances surrounding the contract are to be considered, and fact that alleged master has reserved right of termination or cancellation of the employment contract is a proper element to be considered.

Where relationship of alleged employee under contract for performance of a service would ordinarily be that of an "independent contractor", mere showing that the employment contract was subject to cancellation or termination is not sufficient to create a "master and servant relationship" in absence of other evidence of control or right to control.

Where former employee of machinery dealer was orally authorized to sell used machinery at prices listed, and was required to pay 85 percent. thereof to the dealer which did not furnish automobile nor expense money to employee, with understanding that employee would not interfere with any sales that dealer's regular salesmen were working on, employee was an "independent contractor", as a matter of law and "master and servant relationship" did not exist between him and dealer, notwithstanding that dealer retained right to terminate the arrangement at any time, and hence dealer was not liable for negligence of the employee which allegedly caused an automobile accident.

1. In considering the evidence of an oral contract to determine whether the relation of master and servant exists, if there is no material conflict in the evidence, and the terms of the contract disclosed are not ambiguous or disputed, and only one inference can be drawn, the question is one of law for the court, otherwise it is one of fact for the jury.

2. A master is a principal who employs another to perform service for him, and who controls or has the right to control the physical conduct of the other in the performance of such service, and the servant is the person so employed.

3. An independent contractor is generally one who, exercising an independent employment, contracts to do a piece of work according to his own methods and without being subject to the control of his employer, except as to the result of his work.

4. An alleged employer may make himself liable by retaining the right to direct and control the time and manner or means of executing the work.

5. In determining whether the alleged master exercises control, all of the circumstances surrounding the contract are to be considered, and the fact the alleged employer has reserved the right of termination or cancellation of the contract is a proper element to be shown.

6. In a case involving a contract for the performance of a service where the relationship of the performer would ordinarily be that of an independent contractor, and there is no evidence of control or right to control other than that the contract was subject to cancellation or termination, such a showing is not sufficient to convert the relation into that of master and servant.

7. When the evidence discloses only the situation described in the foregoing paragraph, the question is one of law for the court and not one of fact for the jury.

Appeal from District Court, Saline County; Roy A. Smith, Judge.

Action by Charles Houdek against Glenn Gloyd and another for injuries sustained in an automobile accident, and action by Charles Houdek, administrator of the estate of Emilie Houdek deceased, against Glenn Gloyd and another for death of the deceased which resulted from the accident, which were consolidated for trial. Defendant Gloyd filed motions to set aside certain answers to special questions submitted to the jury and defendant Oehlert Tractor & Equipment Company filed similar motions and for judgment notwithstanding the verdict. The trial court denied defendant Gloyd's motions and on the motions of the Oehlert Tractor & Equipment Company, set aside certain answers and rendered judgment for the company notwithstanding verdict, and the defendant Gloyd appeals and the plaintiff cross-appeals. Defendant Gloyd's appeal was abandoned.

Judgment affirmed.

W. S. Norris, Wint Smith, and Homer B. Jenkins, all of Salina, and Samuel E. Bartlett and R. Brewster Bartlett, both of Ellsworth, for appellee and cross-appellant Charles Houdek.

C. W. Burch, B. I. Litowich, LaRue Royce, L. E. Clevenger, E. S. Hampton, and R. E. Haggart, all of Salina, for Oehlert Tractor & Equipment Co.

THIELE Justice.

This appeal involves liability for injuries sustained in an automobile accident in which Charles Houdek sustained personal injuries and in which his wife was killed. Houdek filed one action to recover personally and, as administrator, he filed another action to recover for the wrongful death of his wife. Both actions were against Glenn Gloyd, the driver of a car causing the accident, and against his alleged employer, the Oehlert Tracter & Equipment Company, hereafter referred to as the company. The causes were consolidated for trial in the district court.

During the trial, the company demurred to plaintiff's evidence for the reason it did not prove the relation of master and servant existed between Gloyd and the company, the demurrer being overruled. At the close of all the evidence, the company moved the court for judgment for the same reason, the motion being denied. Under instructions, of which no complaint is made, the jury returned verdicts in each case against both defendants and answered special questions submitted to it. Gloyd's motions to set aside certain of those answers and for a new trial were denied and he perfected an appeal which has been abandoned. The company filed similar motions and for judgment notwithstanding the verdict. On these motions, the trial court set aside certain answers and rendered judgment notwithstanding the verdict in favor of the company, which was permitted to withdraw its motion for a new trial. From these rulings the plaintiff appealed, the gist of the specifications of error being that the trial court erred in holding as a matter of law that the relation of master and servant between the company and Gloyd had not been established by the evidence.

There is no longer any question as to the liability of Gloyd. For purposes of discussion we review briefly the evidence of all parties, but for the sake of clarity we shall not follow the order in which it was presented at the trial, nor shall we allude to much of the details shown.

The company had been engaged in business for some years at Salina, in handling seventeen lines of heavy road-building equipment, and in connection therewith it often took used equipment as a part of the purchase price, and in the fall of 1937 it had a considerable amount of used equipment on hand. For a time in 1929 and 1930 Gloyd had been an employee of the company. Thereafter he was employed otherwise, until in the fall of 1937 when he sought to make some arrangement with the company to sell used machinery, when he was informed that company had regular salesmen, but that it had used machinery on hand at prices listed; that Gloyd was given such a list and informed that he could sell any of such used machinery, paying to the company eighty-five percent of the listed price. If the used machinery were sold on deferred payments, the terms of the contract were to be approved by the company and evidenced by forms of contract which it furnished. If any used machinery were to be taken in on any trade, the company was to fix a price at which it would accept the same. Subject to the above, the company was not concerned with the price at which Gloyd sold the used machinery. He was to receive for his services any amount he could get over and above the eighty-five percent of the listed price. The arrangement was oral; there was no written contract. The company had regular salesmen who had specified territories, who were paid salaries and commissions, and who were furnished automobiles to use in their employment. There was no agreement with Gloyd to pay him any salary or expenses or to furnish him any car, nor was he directed where to go in making his sales, the only understanding being he was not to interfere with any sales the regular salesmen were working on. In order for Gloyd to sell any machinery, it was necessary that he use an automobile and he furnished his own. Gloyd was not required to and made no reports to the company as to where he went or whom he saw, further...