James v. Tobin-Sutton Co.

• Decision Date: 13 November 1923
• Citation: 182 Wis. 36,195 N.W. 848
• Parties: JAMES v. TOBIN-SUTTON CO. ET AL.
• Court: Wisconsin Supreme Court

182 Wis. 36

195 N.W. 848

JAMES

v.TOBIN-SUTTON CO. ET AL.

Supreme Court of Wisconsin.

Nov. 13, 1923.

Appeal from Circuit Court, Milwaukee County; S. E. Smalley, Judge.

Action by Earl James against the Tobin-Sutton Company and another. From a judgment for plaintiff, the named defendant appeals. Reversed and remanded, with directions.

Action to recover damages for personal injuries sustained by plaintiff in a collision with an automobile driven by the defendant Sovic. The defendant Tobin-Sutton Company was made a defendant on the theory that Sovic was in its employ at the time of the collision.

As a part of the special verdict the jury found that the defendant Sovic “was in the employ of the defendant Tobin-Sutton Company, as salesman on December 1, 1921”; and that at the time of the collision he “was within the scope of his employment by the said Tobin-Sutton Company and to facilitate the latter's business.” The damages were assessed at $1,000, and from a judgment in favor of the plaintiff for that amount the defendant Tobin-Sutton Company appealed.Olwell & Brady and A. George Bouchard, all of Milwaukee, for appellant.

Padway, Thompson & Skolnik, of Milwaukee (Chas. Thompson, of Milwaukee, of counsel), for respondent.

VINJE, C. J.

The appellant contends: (1) That the overwhelming weight of the evidence shows that some weeks before the accident Sovic had been discharged from its employ; (2) that the undisputed evidence shows that he was an independent contractor; and (3) that even if he was in its employ, he was not acting within the scope of his employment at the time of the collision.

We shall not discuss the first and last contentions because we have reached the conclusion that upon the undisputed evidence the law declares him to have been an independent contractor at the time of the collision for whose acts the Tobin-Sutton Company was not liable. The evidence shows that the Tobin-Sutton Company was a retail seller of Ford automobiles and accessories and employed seven or eight salesmen, one of whom was Sovic, who sold automobiles on a commission basis. They received no salary, but a limited checking account was advanced them which was absorbed by commissions when earned. All salesmen were required to report to the Tobin-Sutton office at 8 o'clock each morning, when the previous day's work was discussed and suggestions or criticisms were offered, and prospect cards were handed out to them. After they reported each morning they could go where they pleased and sell cars anywhere within Milwaukee county. The Tobin-Sutton Company exercised no direct control over them. Each salesman was required to own and operate a Ford car for demonstration purposes. He had to pay for the car and its maintenance, but if he paid cash he got a slight discount for gas, oil, and repairs if purchased or made by the Tobin-Sutton Company. They were not required to buy gas or oil from or have repairs made by the Tobin-Sutton Company. After reporting at 8 o'clock each salesman controlled his day's work in all respects, both as to length of time he would work, where he would go, and the manner of effecting sales. The salesmen could come back to the Tobin-Sutton office at any time, and they often came back in the evening, but not for orders or suggestions, but for their own purposes, convenience, or pleasure.

On the afternoon of the day of the accident, Sovic was at the Plankington Arcade between 3 and 4 o'clock engaged in playing pool. He then started home for lunch by a direct route, and on his way the accident occurred. He testified that he might or might not have gone to the Tobin-Sutton office that evening had the collision not occurred. He did not go.

It is well settled that where one drives his own automobile, a third party cannot be held liable for injuries to a stranger resulting from negligent driving unless the relation of master and servant or principal and agent exists between the third party and the driver, and the latter is actually at the time of the injury...