Leif v. Graham, 6143.
| Decision Date | 21 March 1933 |
| Docket Number | No. 6143.,6143. |
| Citation | 247 N.W. 612,63 N.D. 257 |
| Parties | LEIF v. GRAHAM. |
| Court | North Dakota Supreme Court |
OPINION TEXT STARTS HERE
Syllabus by the Court.
1. Where one, employed by an oil company to sell its products on a salary and commission basis, and incidentally to deliver such products to customers, uses his own truck and a tank furnished by his employer to deliver the products to purchasers, carrying nothing but his employer's products, such truck when so used is not engaged in “commercial freighting,” as defined by section 25 (e) of chapter 179 of the Session Laws of 1927, amended by chapter 186, § 5, of the Session Laws of 1931, even though there is paid him by his employer additional commission based upon the amount of goods delivered to customers.
Appeal from District Court, Burleigh County; Fred Jansonius, Judge.
Certiorari proceeding by J. J. Leif against W. S. Graham. From an order setting aside an order canceling petitioner's truck license, the respondent appeals.
Affirmed.A. J. Gronna, Atty. Gen., and Harold D. Shaft, Asst. Atty. Gen., for appellant.
O'Hare, Cox & Cox, of Bismarck, for respondent.
Petitioner is a bulk station agent of the Standard Oil Company of Indiana. His written contract requires him to “operate the Company's bulk station at Wilton, N. D. and in connection therewith to sell its petroleum products * * * in the following described territory; Wilton, N. D., Still, N. D., Baldwin, N. D., and such other territory as may from time to time be assigned to him * * * ”; devote his entire time to the employment; comply with all instructions of the company; “call upon and solicit purchases for Company's products among new and former customers of Company * * * develop new customers * * * make deliveries and solicit sales of Company's products more or less constantly along certain routes and within certain well defined territories”; sell the company products exclusively; and not “either directly or indirectly sell or solicit orders for the sale of Gasoline, Kerosene, Motor Fuels, Oils or Greases furnished by other than said Company within the territory in which he sold such products while in the employ of the Company * * *; provide and maintain at his own expense, whatever truck chassis may be necessary to make proper sale and delivery of the Company products (the Company to furnish tank, bucket box and buckets)”; pay all taxes, license fees, and taxes imposed upon his truck, operate the truck himself or by approved drivers, sell products only for cash or under restricted credit restrictions, be responsible for the sales made to “any unauthorized customers,” answer to the company and be responsible for the acts of his drivers and for their sales the same as if he had made the sales and deliveries personally; and will not sell or pledge the goods of the company for his own personal account.
As compensation petitioner receives the “salary of $60.00 per month and in addition thereto, commissions on all pay gallons above 5,000.” This commission varies in accordance with the products sold, the person to whom sold, and the distance from the station to the place of delivery.
The respondent, the motor vehicle registrar, had issued a truck license to the defendant for the operation of his truck for private purposes only. On June 15, 1932, he issued an order directed to the petitioner requiring him to show cause why such license should not be canceled, on the ground that the petitioner was using the truck “in the business of commercial freighting as defined by the Motor Vehicle Registration Law and such use, without a commercial freighting license, being in violation of law.”
A hearing was had before the registrar, and thereafter the license was canceled.
The petitioner applied to the district court for a writ of certiorari to review the action of the registrar. The case is before us on appeal by the latter from the order of the district court setting aside the order of cancellation, and requires merely an interpretation of the law.
It is the contention of the registrar that the facts stated...
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