Howard W. Luff Co. v. Capece

• Decision Date: 09 November 1932
• Docket Number: No. 6006.,6006.
• Citation: 61 F.2d 635
• Parties: HOWARD W. LUFF CO. v. CAPECE.
• Court: U.S. Court of Appeals — Sixth Circuit

61 F.2d 635 (1932)

HOWARD W. LUFF CO. v. CAPECE.

No. 6006.

Circuit Court of Appeals, Sixth Circuit.

November 9, 1932.

W. P. Barnum, of Youngstown, Ohio (Barnum, Hammond, Stephens & Hoyt, of Youngstown, Ohio, on the brief), for appellant.

John Ruffalo, of Youngstown, Ohio, for appellee.

Before MOORMAN, HICKS, and SIMONS, Circuit Judges.

SIMONS, Circuit Judge.

Appellee was the plaintiff below, and recovered judgment for injuries resulting in death of her intestate, struck by an automobile driven by Sherman, appellant's salesman. On the trial Sherman's negligence, and its causal relation to the injuries and resulting death, were conceded. The only question raised by motion for directed verdict was the responsibility, if any, of the defendant below for Sherman's acts. It may be stated thus: Did the relation of master and servant exist between the defendant and the driver of the automobile, and, if so, were the negligent acts of the servant committed in the course of his employment?

The general rules applicable to the controversy are well settled. The difficulty lies only in their application to the specific facts. "The relation of master and servant exists whenever the employer retains the right to direct the manner in which the business shall be done, as well as the result to be accomplished, or, in other words, `not only what shall be done, but how it shall be done.'" Singer Manufacturing Company v. Rahn, 132 U. S. 518, 10 S. Ct. 175, 176, 33 L. Ed. 440, quoting New Orleans M. & C. Railroad Company v. Hanning, 15 Wall. 649, 21 L. Ed. 220. In the Eighth Circuit the rule was somewhat more fully stated: "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. There can be no recovery of a person for the act or omission of his alleged servant under the maxim, `respondeat superior,' in the absence of the right and power in the former to command or direct the latter in the performance of the act or omission charged, because in such a case there is no superior to respond." Standard Oil Company v. Parkinson (C. C. A.) 152 F. 681, 682. That which differentiates a servant from an independent contractor is the control or right of control of his actions lodged in the master. Metcalf & Eddy v. Mitchell, 269 U. S. 514, 46 S. Ct. 172, 70 L. Ed. 384, citing other Supreme Court cases. On the other hand, one whom the employer does not control, and has no right to control, as to the method or means by which he produces the results contracted for, is an independent contractor. Gall v. Detroit Journal Company, 191 Mich. 405, 158 N. W. 36, 19 A. L. R. 1164. The latter case is the subject of a copious note in 19 A. L. R. 1164, wherein numerous state decisions are collected. Cf. 29 A. L. R. 470.

In making application of general principles to specific facts, many and varied circumstances are relied upon in reported cases, such as the power of discharge, the payment of wages as distinguished from other forms of compensation, the continuity of the employment, the engagement by the alleged employee in a distinct business or occupation, the professional skill required in doing the employer's work, and so on. Such circumstances, however, are not ultimate facts, but are only more or less useful in determining whose is the work and whose is the power of control. Standard Oil Company v. Anderson, 212 U. S. 215, 29 S. Ct. 252, 53 L. Ed. 480. This court concluded that whether a relationship is one of master and servant, or of employer and independent contractor, must be determined in each case from the pertinent facts and circumstances. Pittsburgh Valve Foundry & Construction Co. v. Gallagher (C. C. A.) 32 F.(2d) 436. A careful study of the cited, and of numerous other, cases, discloses no specific circumstances to be universally applicable criteria for determining the character of the relationship.

Upon the arrangement that was entered into with the appellant, Sherman, the salesman, was the only witness to testify. He was engaged by the Luff Company about a week prior to the accident to sell automobiles upon a commission basis. His territory was all of Mahoning county, and he could look...