Marchand v. Russell

• Decision Date: 02 March 1932
• Docket Number: No. 219.,219.
• Citation: 257 Mich. 96,241 N.W. 209
• Parties: MARCHAND v. RUSSELL et al.
• Court: Michigan Supreme Court

257 Mich. 96

241 N.W. 209

MARCHAND

v.RUSSELL et al.

No. 219.

Supreme Court of Michigan.

March 2, 1932.

Appeal from Circuit Court, Delta County; Frank A. Bell, Judge.

Action by Gideon Marchand against Robert V. Russell and another. Judgment for plaintiff, and the defendants separately appeal.

Affirmed as to both defendants.

Argued before BUTZEL, C. J., and WIEST, CLARK, McDONALD, POTTER, SHARPE, NORTH, and FEAD, JJ.John J. O'Hara, of Menominee (James E. Coleman, of Milwaukee, Wis., of counsel), for appellant Detroit Electric Co.

Dunham, Taylor & Allaben, of Grand Rapids (Derham & Derham, of Iron Mountain, of counsel), for appellant Robert V. Russell.

M. J. Kennedy, of Ishpeming, for appellee.

SHARPE, J.

A trunk line highway, M-28, also known as U. S. 41, runs through the village of Champion, in the county of Marquette, approximately from east to west. It is intersected near the railroad depot by a road running from the southwest to the northeast. About 4 o'clock in the afternoon on January 27, 1930, the plaintiff, driving a horse attached to a sled, approached the trunk line highway, on the road intersecting it, from the southwest. He was on his way from the post office to the depot with the mail. He stopped, and, seeing nothing upon the highway, proceeded to cross, and, before reaching a place of safety on the opposite side, his sled was struck by an automobile, owned by the defendant Russell, and in which he was riding, but then driven by one Ray Zerbel, and he (plaintiff) was thrown from his sled and quite badly injured. Russell was at that time in the employ of the defendant Detroit Electric Company. The nature of his employment will be considered later.

In this action, brought to recover damages for his injury, plaintiff recovered a verdict against both defendants in the sum of $3,500. From the judgment entered thereon, the defendants have prosecuted separate appeals.

Two questions are involved in the appeal of the defendants Detroit Electric Company:

1. Was Russell an agent or servant of the company, or an independent contractor?

2. If he was an agent or servant, was he acting within the scope of his employment in permitting Zerbel to drive his car at the time of the accident?

1. Mr. Russell, called as an adverse witness, testified that his home was in Escanaba; that he was the owner of the car; that on the day of the accident he was a representative of the defendant company in the upper peninsula; that his duties were ‘sales representative, and promotion work’; that it was a part of his duty to travel from town to town; that he worked continuously at it, and had for about seven months; that he reported the work done by him to the company; that at the time of the accident he was traveling in the line of his duty between Marquette and the copper country, and that he reported the accident to the company about two and one-half hours after it occurred.

He was later called by the defendants, and testified that he was paid $100 per week, which included his expenses, which were not reported, and, if his sales exceeded a certain amount, he also received a commission; that he decided on what towns he should visit unless the company gave him ‘a lead on some customer’; that he bore the expense of maintaining the car, and also used it for his pleasure; that he was privileged to use a bus or train if he desired to, and, if so, would himself bear the expense thereof; that he called on those having accounts with the company every two or three weeks, ‘the smaller accounts every thirty days'; that some of the officials of the company occasionally went with him in making such calls, and that he carried them in his car without charge. He was asked by defendants' counsel: ‘In going about the business of making sales and promoting the business of the Detroit Electric Company, did you follow specific instructions, or did you use your own judgment as to that?’ And replied: ‘Well, there are certain policies of course set down by the main office of the company, and beyond that I used my own good judgment.’

John A. White, the manager of the branch of the defendant company at Grand Rapids, and who at that time had charge of the northern Michigan territory, testified that Russell was receiving $100 per week, which was to cover his salary and transportation; that it was divided on their books, ‘$50 salary and $50 transportation’; that the latter covered his expenses, including hotel bills; that his duties were ‘to call on the dealers we had, and of course establish new dealers wherever possible, and promote the sale of Majestic radio sets'; that he could himself plan his trips, except he might be asked to make a special call on a dealer who was behind in his accounts, and that he had ridden with Mr. Russell on trips in the district.

This and many other courts have frequently been called upon to decide whether, on the rendition of service by one person to another, the relation of master and servant or that of independent contractor was created by the employment. In Zoltowski v. Ternes Coal & Lumber Co., 215 Mich. 231, 233,183 N. W. 11, the following from 26 Cyc. p. 1546, was quoted and said to epitomize the holdings of this court upon the question: ‘An independent contractor is one who, carrying on an independent business, contracts to do a piece of work according to his own methods, and without being subject to control by his employer as to the means by which the result is to be accomplished, but only as to the result of the work. Generally the circumstances which go to show one to be an independent contractor, while separately they may not be conclusive, are the independent nature of his business, the existence of a contract for the performance of a specified piece of work, the agreement to pay a fixed price for the work, the employment of assistants by the employee who are under his control, the furnishing by him of the necessary materials, and his right to control the work while it is in progress except as to results.’ This quotation also appears with approval in Hanisko v. Fitzpatrick Brothers, 232 Mich. 593, 595, 206 N. W. 322, where many of our cases are cited in its support.

Let us apply the tests therein referred to to the facts as above stated. The defendant company's contract with Russell, not in writing, obligated him to travel from place to place in the upper peninsula to call on dealers, collect accounts due the company, ‘to establish new dealers wherever possible, and promote the sale’ of that company's products. He was occasionally requested to ‘make a special call’ on a dealer ‘who was behind in his accounts,’ and also to make a call when given ‘a lead on some customer.’ At times, when making such calls, he was accompanied by an official of the company. The service rendered was a personal one; the receiving of orders for the company's products, and the collection of its accounts, for which he was paid a stated weekly compensation. There was no agreement to pay a commission on the sale of a particular article. The contract of employment was for no definite term, and might have been terminated by either party at will. He was not in any sense engaged in an independent business, with profits or losses dependent on his conduct of it. Were it not for the fact that he used his own car, and that the expense of its operation and maintenance, as well as his personal expenses when traveling about, was included in the weekly compensation paid him, the situation would be no different from that of the ordinary salesman traveling about and selling the goods of his employer.

It has been many times said that the right to control, not only as to the result to be accomplished, but also as to the means to be used, is decisive of the relation existing. This rule may well be applied where a specified piece of work is to be done, as was the case in Tuttle v. Embury-Martin...