Nettleship v. Shipman

• Decision Date: 16 March 1931
• Docket Number: 22936.
• Parties: NETTLESHIP v. SHIPMAN et al. PANCHOT v. SAME.
• Court: Washington Supreme Court

296 P. 1056

161 Wash. 292

NETTLESHIP v. SHIPMAN et al.

PANCHOT v. SAME.

No. 22936.

Supreme Court of Washington

March 16, 1931

Department 2.

Appeal from Superior Court, King County; Dolph Barnett, Judge.

Actions consolidated by stipulation, by W. W. Nettleship and by K. B Panchot against J. E. Shipman and wife and Reid Bros., Inc. From judgments in favor of plaintiffs, defendant last named appeals.

Judgments against appellant reversed, and actions, as to it, dismissed.

TOLMAN C.J., dissenting.

Peters Evans & McLaren and W. Byron Lane, all of Seattle, for appellant.

G. E. Clark, of Yakima, for respondents.

BEALS J.

At the hour of noon, November 23, 1928, W. W. Nettleship and K. B. Panchot were riding in a small truck, owned and driven by Mr. Nettleship, which was proceeding in a general northwesterly direction along the Inland Empire highway at a point about a mile and a half north of Wallula. Defendant J. E. Shipman, a salesman in the employ of defendant Reid Bros., Incorporated, a wholesale dealer in hospital and surgical supplies, was proceeding in the same direction in his Hudson coupé, and, in attempting to pass the truck, struck its left front wheel, wrecking the truck and injuring Messrs. Nettleship and Panchot, each of whom thereafter sued Mr. and Mrs. Shipman and Reid Bros., Incorporated, for damages. The two actions were by stipulation consolidated, and were tried to the court sitting without a jury, the court granting judgment in favor of each plaintiff and against both defendants; the court being of the opinion that the accident was the result of Mr. Shipman's negligence, and that his employer was liable therefor under the doctrine of respondeat superior. From judgments in favor of the respective plaintiffs, defendant Reid Bros., Incorporated, appeals. By stipulation the consolidation of the cases is maintained in this court.

Mr. Shipman was, during the month of November, 1928, when the accident occurred, and for some time prior thereto had been, in the employ of appellant as a traveling salesman, covering a district comprising the entire state of Montana and a considerable portion of the state of Washington. He was compensated by what appellant calls a 'drawing account' and respondents call a 'salary' of $375 a month, and, in addition, if at the end of each year an agreed percentage of the volume of his gross sales exceeded the amount he had received, he would be paid the difference. Mr. Shipman, in covering his territory, paid his own transportation and subsistence, and was free to use any method of transportation he desired. To a considerable extent he used his own automobile, which he was buying under contract, he paying for the license and all expenses in connection with the car and the use thereof. He also used railroads or stages, as suited his convenience. The goods handled by appellant were sold by its agents, including Mr. Shipman, largely to hospitals and doctors; orders taken by Mr. Shipman being by him sent to appellant for confirmation. Prices were fixed by appellant, but its salesmen could on occasion, if in their discretion it was advisable, cut the list prices to some extent. Payments for the goods sold were made directly to appellant, who billed the purchasers therefor. Appellant exercised at least some control over Mr. Shipman in the exploiting by him of his territory; it is evident that he was required to cover certain portions thereof once every thirty or sixty days, and that he was supposed to go to Montana three times a year. This control was very general in its nature, appellant being interested only in the results its agents produced, and it is evident that Mr. Shipman, was, generally speaking, free to tour his territory at such times and to such extent as he deemed most advantageous. Appellant knew that Mr. Shipman owned and often used in the prosecution of his business an automobile, but appellant did not instruct him to purchase a car, nor did it at all concern itself with the means of transportation adopted by its salesmen on any particular trip or in covering any particular territory. Appellant's officers could tell, with some degree of accuracy, by the volume of orders sent in by one of its salesmen, and from the places the orders were taken, whether or not such employee was devoting a proper amount of his time and attention to his work, but it does not appear that any particular check was made by appellant over its traveling salesmen other than some such general observation.

Defendants Shipman did not appeal; the sole question being whether or not under the evidence appellant is liable to respondents for the negligence of Mr. Shipman in the operation of his automobile. It is admitted that on the day of the accident Mr. Shipman was engaged in his regular employment, going from one city to another within his district for the purpose of selling appellant's goods. Appellant contends that, under its contract with Mr. Shipman and because of the measure of its control over him and the limited nature and extent thereof, it is not liable for his negligence, while respondents argue the contrary. Mr. Shipman made no daily reports to appellant concerning either his sales or his whereabouts. He was free to exercise his own judgment as to how long he would stay in any particular place in the endeavor to sell goods; neither did he in his work observe any hours, either for work or travel, but as to all such matters was governed by his own discretion and inclination.

The question of whether or not the doctrine of respondeat superior applies in particular cases in which recovery has been sought against an employer because of alleged negligence on the part of his agent is often one of considerable difficulty. Whether or not the agent is an independent contractor for whose negligence the principal is not responsible or a simple employee for whose carelessness the employer must respond in damages, frequently depends upon rather refined distinctions, and requires careful and discrimination study in order that each case may be placed within its proper classification.

In the early case of Engler v. Seattle, 40 Wash. 72, 82 P. 136, 138, this court, in considering the liability of the city for the alleged negligence of a partnership engaged in the construction of a cement sidewalk pursuant to a contract, quoted the following from 16 Am. & Eng. Ency. Law (2d Ed.) pp. 187, 188: 'Generally speaking, an independent contractor is one who, in rendering services, exercises an independent employment or occupation, and represents his employer only as to the results of his work, and not as to the means whereby it is to be accomplished. The word 'results,' however, is used in this connection in the sense of a production or product of some sort, and not of a service. * * * A reservation by the employer of the right by himself or his agent to supervise the work for the purpose merely of determining whether it is being done in conformity to the contract does not affect the independence of the relation.'

In that case it was held that the city was not liable for the negligence of the contractor, and that the doctrine of respondeat superior did not apply.

In the case of Cary v. Sparkman & McLean Co., 62 Wash. 363, 113 P. 1093, in which it was sought to hold the defendant, as owner of the real property, for damages suffered by a pedestrian who fell into an excavation in the street made by a contractor who was constructing a building for the defendant, a judgment rendered in plaintiff's favor upon the verdict of a jury was reversed for the reason that the person construction the building was an independent contractor for whose negligence the owner of the property was not liable.

In the case of Macale v. Lynch, 110 Wash. 444, 188 P. 517, the following state of facts was presented: Plaintiff, a minor, was injured as the result of a fall from a truck upon which he was surreptitiously taking a ride. The truck, owned and operated by defendant, and in charge of its driver, who was defendant's agent, was engaged in the delivery of potatoes owned by one Barnes, who had hired the truck and driver from defendant for the purpose of distributing his produce in the city of Seattle. Mr. Barnes was riding on the truck at the time of the accident, and was instructing the driver as to the points of call and delivery. Mr. Barnes did not operate the truck, he gave no directions as to the speed at which it should proceed, nor did he assume any control over the truck, save to designate its stops. It was held that the evidence warranted a finding on the part of the jury that the driver of the truck was acting as the defendant's agent, and not as the agent of Mr. Barnes. The judgment in favor of the injured minor was, however, reversed, with instructions to dismiss the action; it appearing that there was no competent or admissible testimony sufficient to support a finding that the driver had acted willfully, wantonly, or even without ordinary care. The opinion of the court is of interest in so far as it discusses the questions of whether or not the driver was under the immediate control of Mr. Barnes, and whether the defendant could be held liable for the driver's negligence, if any.

In the case of Machenheimer v. Department of Labor and Industries, 124 Wash. 259, 214 P. 17, this court sitting en banc, held that a member of a copartnership employed by a logging company at the camp of the logging company, working the same hours as other employees, subject to the orders of the superintendent, with power of discharge, whose pay checks were made out to the copartnership of which he was a member, which copartnership designated the member thereof who should do the work, was an independent contractor and not an employee...