Mitchell v. Maytag-Pacific-Intermountain Co.

• Decision Date: 12 November 1935
• Docket Number: 25843.
• Citation: 184 Wash. 342,51 P.2d 393
• Parties: MITCHELL et al. v. MAYTAG-PACIFIC-INTERMOUNTAIN CO. et al.
• Court: Washington Supreme Court

51 P.2d 393

184 Wash. 342

MITCHELL et al. v. MAYTAG-PACIFIC-INTERMOUNTAIN CO. et al.

No. 25843.

Supreme Court of Washington

November 12, 1935

Department 2.

Appeal from Superior Court, Chelan County; W. O. Parr, Judge.

Action by Virginia Mitchell, as the personal representative of Walter E. Mitchell, deceased, and another against the Maytag-Pacific-Intermountain Company and others. From the judgment dismissing the action as to the Maytag-Pacific-Intermountain Company notwithstanding the verdict, the plaintiffs appeal.

Affirmed.

Joseph H. Griffin, of Seattle, and Harvey F. Davis, of Wenatchee for appellants.

Roberts & Skeel and W. R. McKelvy, all of Seattle, for respondents.

BEALS Justice.

The defendant Maytag-Pacific Intermountain Company, a corporation (hereinafter referred to as Maytag or respondent), is engaged in business as a vendor of washing machines and other mechanical appliances, and for some years prior to July 1933, defendant J. W. Grosso had been in its employ as district manager up to May 1, 1933, and thereafter as a salesman. C. M. Jett succeeded Mr. Grosso as branch manager for a district in the north central part of this state, with headquarters at Omak; Grosso being one of the salesmen under his jurisdiction. Mr. Grosso was assigned to a territory rather indefinite in extent, working on a commission basis, and using an automobile which was his own property. He had caused to be constructed on the back of his car a platform, upon which to carry washing machines, and had placed on each side of his car in a conspicuous position the word 'Maytag' and the company's emblem. His duties consisted of selling Maytag appliances and servicing and repossessing same on occasion; it also being his duty to make some collections, for which he gave regular Maytag receipts from a book furnished him by Mr. Jett. Mr. Grosso was employed by no person other than Maytag, and, prior to July 1, 1933, received, in addition to his regular commission, a bonus upon certain sales.

July 1 1933, Mr. Grosso, while driving his automobile over a road in Chelan county, collided with a car driven by Walter E. Mitchell, in which Sigurd Seim was riding as a guest. As a result of injuries received in the collision, Mr. Mitchell died, and Mr. Seim was severely injured. Thereafter, plaintiff Virginia Mitchell was appointed administratrix of her late husband's estate, and brought suit against Maytag, asking for damages in a large sum on her own behalf and on behalf of her three minor children. Mr. Seim also sued for his injuries, the two actions having been consolidated for the purposes of trial.

A third car, driven by one L. E. Pruitt, was concerned in the collision, and Mr. Pruitt was named as a defendant in the actions, as was also Mr. Grosso. The jury returned a verdict against Maytag in favor of plaintiff Virginia Mitchell in the sum of $3,000, they awarded each of the three minor children $1,000, and awarded Mr. Seim $1,500. It does not appear from the transcript that any verdict was rendered against defendant Pruitt. From the copy of the verdict Before us, it appears that the same was rendered against Maytag alone, but in the judgment it is recited that the jury found against defendants Maytag and Grosso jointly. The trial court granted Maytag's motion for judgment in its favor notwithstanding the verdict, and, plaintiffs having moved for a new trial, directed that, in the event the judgment of dismissal, based upon the order granting judgment notwithstanding the verdict, should be reversed, plaintiffs' motion for a new trial should be granted. From the judgment dismissing the action as to defendant Maytag, Virginia Mitchell and Sigurd Seim, as joint plaintiffs, have appealed.

No party has appealed from the alternative judgment entered by the trial court granting plaintiffs' motion for a new trial in case this court should determine that the trial court erred in granting Maytag's motion for judgment in its favor notwithstanding the verdict.

The sole question Before us is whether or not at the time of the accident J. W. Grosso was Maytag's agent to such an extent as to render Maytag responsible for any negligence of which Grosso might be guilty in driving his automobile in such manner as to cause injury to a third party. The parties agree that this is the only question presented on this appeal.

It appears that Maytag's salesmen, in disposing of washing machines, occasionally accepted as part payment other mechanical appliances, but that, as they were required to deliver cash to Maytag, any such deal was strictly on their own account, and they disposed of, as their own property and to their own advantage, any machines or other articles which they accepted and credited as cash on the purchase price of any of Maytag's products. Mr. Grosso, having in some manner acquired a gasoline motor, was anxious to dispose thereof, and with that end in view had made a deal with one Walter Manning, who resided on the highway running between Chelan and Wenatchee. It clearly appears that, in dealing with Mr. Manning, Mr. Grosso represented himself alone and not Maytag.

Not long prior to July 1st, Mr. Grosso, desiring some small credit at a garage not far from Wenatchee, had left as security for what he received the motor which he subsequently traded to Mr. Manning. Upon learning that Mr. Manning desired a motor, Mr. Grosso, about June 23d, left at the garage as security in place of the motor a washing machine belonging to Maytag, which he was using as a demonstrator. Mr. Manning, as part of the deal, agreed to pay the garage the amount which Grosso owed, but, becoming dissatisfied with the exchange, telephoned the garage that he would not pay the bill.

June 30th, Mr. Jett, being short of washing machines, instructed Mr. Grosso to go to the garage where the washing machine was in pledge and pick it up. The morning of July 1st, Mr. Grosso started on this mission. He first called at the office of Mr. Sheridan, Maytag's agent in Chelan, but, not finding him, decided to proceed to Mr. Manning's ranch in an endeavor to straighten out the deal with him, expecting to pick up the washing machine on the way back to Omak. Mr. Manning was busy and refused to discuss the matter until after 5 o'clock. Grosso then once more sought Mr. Sheridan, whom he finally located. Grosso then started back to Mr. Manning's house, and on the way there the collission occurred which resulted in Mr. Mitchell's death and Mr. Seim's injury. Later on the afternoon of the accident, Mr. Grosso resumed his journey to Mr. Manning's, picked up the motor with which Mr. Manning was dissatisfied, returned to the garage, and took possession of the washing machine, which he delivered to Mr. Sheridan, in accordance with instructions from Mr. Jett.

Within a few days, Mr. Grosso advised the Maytag office at Portland of the accident, stating his version of the circumstances in connection therewith. As above stated, for the purposes of this appeal, it is assumed that the jury correctly found that Mr. Grosso, by reason of his negligence, was responsible for the collision. On the trial, appellants called Mr. Grosso, stating in their brief that they called him as an adverse witness. It appears that, at the time of the trial, Mr. Grosso was no longer in Maytag's employ, and respondent argues that it appears from Mr. Grosso's testimony that he was antagonistic to his former employer, and was endeavoring to testify as strongly as possible in appellants' favor. The witness frankly stated that he had had a controversy with Maytag over some commissions, which he claimed were due him, and later collected, and that when Mr. Jett superseded him as district manager at Omak, he had resented the way Mr. Jett had approached him. In reply to the question, 'In fact, you feel rather adverse towards them in this case, don't you?' he answered, 'Well, after the way they turned me down in this case, yes.' In any event, Mr. Grosso was not testifying as a witness in a case in which his then employer was a defendant.

We shall now consider the question to be determined: Was the relationship between Mr. Grosso and Maytag at the time of the accident, such as to render respondent responsible for Mr. Grosso's negligence? Upon this question there is little conflict in the evidence. We are satisfied that the deal between Messrs. Grosso and Manning was strictly the former's personal business. It is also clear that Mr. Grosso was driving his own car, in connection with which he bought the license and paid all expenses of operation. It was also established that Mr. Grosso, in the course of his employment, worked his territory as he pleased, and that, although he had assigned to him a vaguely defined district, he could follow a prospect into other territory and sell his wares therein, on which sales he would receive a commission. He was allowed the use of a washing machine as a demonstrator, being accountable to the district manager for that and for other machines delivered to him. Upon making a sale, he collected some payment on account, which, with the contract, was turned over to the district manager, whereupon the deal was either approved or disapproved. Mr. Grosso testified that, when he first became associated with Maytag, one of the conditions of his employment was that he own an automobile. He later testified, however, that the company had nothing to do with the manner in which he traveled through his territory. In answer to the following question, propounded to him on cross-examination: 'They didn't care whether you rode the busses, or on the train, drove your own car, or walked, did they?' he answered, 'No, sir.' Mr. Grosso testified that Mr. Jett had told him that he (Grosso) could not obtain possession of...