Leachman v. Belknap Hardware & Mfg. Co.

• Citation: 260 Ky. 123,84 S.W.2d 46
• Parties: LEACHMAN v. BELKNAP HARDWARE & MFG. CO.
• Decision Date: 18 June 1935
• Court: Kentucky Court of Appeals

84 S.W.2d 46

260 Ky. 123

LEACHMAN v. BELKNAP HARDWARE & MFG. CO.

Court of Appeals of Kentucky

June 18, 1935

Appeal from Circuit Court, Green County.

Action by T. Z. Leachman against the Belknap Hardware &amp Manufacturing Company. From a judgment overruling a demurrer to the petition and dismissing the petition, the plaintiff appeals.

Affirmed.

Milby &amp Henderson, of Greensburg, for appellant.

John G Heyburn, of Louisville, Noggle & Graham, of Greensburg, and Peter, Heyburn, Marshall & Wyatt, of Louisville, for appellee.

RICHARDSON Justice.

The determinate question here presented turns on the construction of a written contract of the Belknap Hardware & Manufacturing Company employing William Leming as a salesman for a period of one year. We adopt the synopsis of the contract, as it is contained in the appellant's T. Z. Leachman's brief. It reads:

"The company agrees to pay salesman $100.00 per month, etc.

"The compensation is based upon the salesman making acceptable sales with bonus for sales above certain amounts.

"The company agrees to pay such traveling expenses as are authorized under the rules of the company *** printed in the expense book and incurred by the salesman while actually engaged in the company's business.

"The salesman agrees to work and live in whatever territory may from time to time be assigned to him by the company, and to make his headquarters at whatever place the company may designate.

"The salesman agrees to devote his entire time to the interest of the company during the life of the contract.

"The salesman assumes full responsibility for samples turned over to him.

"The salesman agrees at his own expense to carry such automobile and/or other liability insurance, as may, in the opinion of the company, be necessary to protect the salesman and the company from liabilities for personal injuries or property damage to any other person, firm or corporation, caused by or arising out of the operation of an automobile by the salesman, the salesman and company to be designated as the assured, and not to be canceled without notice to the company.

"The salesman agrees that in all cases not expressly covered by the terms of the contract, to be governed by the current rules, regulations and policies of the company, including those outlined in the current expense book.

"The right is given the company to discharge the salesman upon notice."

While operating in Green county, Ky. his own car in the trade or profession of a salesman in pursuance to this contract, the car and Leachman's truck collided, "thereby demolishing" the latter. Alleging in his petition that at the time of the collision, Leming, "as agent and employee" of the Belknap Hardware & Manufacturing Company, "then and there engaged upon its business, negligently and carelessly operated a motor vehicle used in the conduct of its business and under its direction and control on the highway and caused the same to collide with" his truck, which he alleged was of the value of $600, he sought to recover this sum of the Belknap Hardware & Manufacturing Company. It traversed the petition and affirmatively pleaded that Leming, at the time of the collision, "was in effect an independent contractor, with this relation to his employment and that the relation of master and servant did not exist"; he "was employed by the defendant as a salesman to sell its goods in a specific territory, including Green County, Kentucky, with no schedule regulating or attempting to regulate the time and manner in which he could cover the territory or to specify where he should be at any particular time"; that it "did not direct him to make the journey in which he was engaged upon at the time of the accident complained of in the petition."

The trial court overruled a demurrer to this affirmative defense. Leachman elected to stand by his demurrer and declined to plead further. The court dismissed his petition, and from this order he appeals. He is here arguing that the correct interpretation of the contract establishes the relation of master and servant and not that of an independent contractor between Leming and the Belknap Hardware & Manufacturing Company, and that it controls the affirmative allegations of the answer. The Belknap Hardware & Manufacturing Company contends contrariwise.

Leachman and the Belknap Hardware & Manufacturing Company cite and rely upon, substantially, the same authorities to sustain their respective insistence. They disagree mostly in the application of the principles enunciated in the cases cited to...