Ignatowitch v. McLaughlin

• Court: North Dakota Supreme Court
• Writing for the Court: BURKE
• Citation: Ignatowitch v. McLaughlin, 66 N.D. 132, 262 N.W. 352 (N.D. 1935)
• Decision Date: 16 August 1935
• Docket Number: 6310

262 N.W. 352

66 N.D. 132

JOSEPHINE IGNATOWITCH, Respondent, v. P.F. McLAUGHLIN, Montana-Dakota Power Company, a Corporation, and Montana-Dakota Utilities Company, a Corporation, Appellants

No. 6310

Supreme Court of North Dakota

August 16, 1935

Rehearing Denied September 18, 1935, Reported at 66 N.D. 132 at 148.

On Rehearing.

Syllabus by the Court.

1. Where a sales agent works on commission only, in territory limited to one city, in which he sometimes uses his own automobile, furnishing his own gas and oil and paying all his expenses for automobile repair, representing the will of his employer only as to the result of his work and not as to the means by which it is accomplished, such salesman is an independent contractor, and the company for which he sells merchandise is not liable for his conduct in the operation of his automobile.

2. Where a sales agent works on commission only, in territory limited to one city, in which he sometimes uses his own automobile, furnishing his own gas and oil and paying all his expenses for automobile repair, representing the will of his employer only as to the result of his work and not as to the means by which it is accomplished, there is no privity of contract between such salesman and his employer in the operation of such automobile, and the employer is not responsible for his conduct in operating it.

3. In this jurisdiction, contributory negligence is a defense which must be alleged and proved by the defendant.

4. In an action for personal injury, where contributory negligence is alleged as a defense, the defendant is entitled to an instruction as to the effect of plaintiff's contributory negligence, if proven, on his right to recover.

5. The rights of a pedestrian and a motor vehicle driver upon the highway are reciprocal, and where the court instructs the jury that " a pedestrian walking along the traveled portion of a highway may assume that the driver of an automobile approaching him from the rear will not violate the law, and will exercise ordinary care in keeping a lookout for him," the defendant is entitled on request to have an instruction that the motor vehicle driver has a right to assume that a pedestrian on the highway will use ordinary care in keeping a lookout for automobiles.

6. The question of the credibility of witnesses is for the jury under proper instructions.

Appeal from District Court, Stark County; W. R. Schell, Judge.

Reversed and dismissed as to the Montana-Dakota Power Company and Montana-Dakota Utilities Company.

Simpson, Mackoff & Kellogg, for Respondent.

J. P. Cain, Durward E. Blach, for Appellants, Montana-Dakota Power Company and Montana-Dakota Utilities Company.

J. W. Sturgeon, for Appellant, P. F. McLaughlin.

Burke, Ch. J. Morris, Burr, Christianson and Nuessle, JJ., concur.

OPINION

BURKE

This is an action for personal injury.

At the close of plaintiff's case the defendants each moved for a directed verdict, which was overruled. At the close of the case the motion was renewed and overruled and a verdict was returned for the plaintiff against all the defendants. Thereafter a motion for judgment notwithstanding the verdict, or for a new trial, was overruled and from the order overruling such motion and from the judgment the defendants duly appeal.

Appellant claims that the court erred in overruling defendants' motion for judgment, in favor of the Montana-Dakota Power Company and the Montana-Dakota Utilities Company, made at the close of plaintiff's case, renewed at the close of the entire case and in overruling the motion for judgment notwithstanding the verdict on the ground and for the reason that the plaintiff wholly failed to establish, by competent evidence, that the defendant McLaughlin, at the time of the accident set forth in the complaint, was acting as agent, servant or employee of said defendants.

It is the contention of the respondent that, on the evening of the accident, the defendant McLaughlin made a trip to Gladstone, North Dakota for the purpose of renting an apartment from one John Loh and that he was engaged in the course of his employment and acting as the agent of the other defendants at the time of the accident.

This contention is based on the evidence that the defendant McLaughlin had a desk in the office of the Montana-Dakota Power Company at Dickinson; that he usually drove his car in the morning and used it without objection in the city of Dickinson when seeing customers; that on the evening of the accident he made a trip to Gladstone to see one John Loh about renting an apartment in Dickinson and that while there he asked Mr. Loh if he was going to furnish a range with the apartment; that he had been to see Mr. Loh on the Sunday previous and a range was also mentioned at that time and that he came back again after the accident and again mentioned the range. It is clear, however, from the testimony that Mr. McLaughlin's territory was confined to the city of Dickinson; that he furnished his own automobile, his own gas and oil and used it at times on trips to customers in the city; that he was paid a commission, based upon sales in the city of Dickinson; that the only instructions he had from the sales department were furnished in the price list, which he was required to observe in making sales. His time was his own. He could come and go as he pleased without restriction, except that he must observe the price lists in making sales. The manager in the office at Dickinson knew he had an automobile and was using it in the city of Dickinson without objection, but there is no evidence that the other defendants knew that the defendant McLaughlin was making the trip to Gladstone.

On the other hand, the evidence proves that the defendant McLaughlin, on the 20th of July, made the trip to Gladstone, not for the other defendants, but for himself, to rent an apartment in the city of Dickinson. McLaughlin so testified and the conversation he had with the Lohs on that occasion, as testified to by Mrs. Loh, shows that this trip was made to rent an apartment in Dickinson for the use of the defendant McLaughlin. It is true that he asked Loh if he would furnish a range and that McLaughlin testified that he wouldn't have considered a coal range; that he wanted to use gas, but he did not want this range for the other defendants; he wanted it for himself to use in the apartment and when Mr. Loh would not furnish the range the defendant McLaughlin furnished one himself for his use in the apartment and not for the use of the other defendants.

It is clear from this evidence that this trip to Gladstone was made by the defendant McLaughlin for his own purpose and that under his contract with the other defendants his activities in behalf of the other defendants were limited to the city of Dickinson. In going to Gladstone he was not acting in the course of his employment with the defendants, but was acting for himself.

A case very much in point is the case of State ex rel. J.A. Sexauer Mfg. Co. v. Grimm, 217 Wis. 422, 259 N.W. 262. In that case one France, a salesman, was working under a similar contract and the court said: "Counsel seem agreed that the most potent factor in determining whether one is an independent contractor or an agent is where the control of the details of the work lies. Badger Furniture Co. v. Industrial Commission, 200 Wis. 127, 227 N.W. 288. From the above statement of facts it appears that the control of the details is in France. The respondent, in opposition to this view, relies on a paragraph of the contract as follows: 'All details covering your work are to be under our direction. You are to make sales only upon prices and terms which we shall fix,' and urges that it is the right to control the details, rather than the exercise of the rights as matter of fact, that determines the matter of control, and cites the Badger Furniture Co. Case, supra, in support of its contention. This argument loses its force from the fact that the statement as to right of control is made in immediate connection with the control of prices and terms and should be limited to that, as it clearly appears both from the contract and the course of conduct that it was not intended to cover the details of France's traveling either as to how or where he should travel. The facts of this case make a clearer case of an independent contractor than those in the case of Kassela v. Hoseth, 217 Wis. 115, 258 N.W. 340. Under that case and the authorities cited in the opinion therein we hold that France was not an agent of the relator in respect to the operation of his automobile, but an independent contractor, if he can be considered as a 'contractor' in any sense in that regard. The term 'independent contractor' is perhaps a misnomer as so applied. It would be more exact to say that no contractual relations whatever existed between France and the relator as to the operation of the automobile. Whether France was a 'contractor' or not, his operation of the automobile was entirely 'independent' of the relator, and, this being so, the relator is not responsible for his conduct in operating it."

This language is applicable to the facts in the instant case, for even assuming that McLaughlin went to Gladstone to sell a gas range to John Loh, his operation of the automobile on the trip was entirely independent of the other defendants. There was no contractual relation existing between them in relation to the operation of the automobile and the other defendants cannot be held liable for an injury occasioned by its use.

In the instant case the defendant McLaughlin rendered service limited to the city of Dickinson, in the course of an occupation representing the will of his employer as to the result of his work only and not as to the...