Nizuk v. Gorges
| Decision Date | 09 May 1960 |
| Citation | 4 Cal.Rptr. 565,180 Cal.App.2d 699 |
| Court | California Court of Appeals Court of Appeals |
| Parties | Alexander NIZUK, Plaintiff and Appellant, v. Albert GORGES et al., Defendants and Cross-Defendants, The Porter Corporation, Defendant, Cross-Complainant and Respondent. Civ. 18676. |
Morton L. Silvers and Benjamin M. Davis, by Morton L. Silvers, San Francisco, for appellant.
Carl Hoppe, San Francisco, for respondent Porter Corp.
This is an appeal from a summary judgment rendered in favor of the defendant Porter Corporation.
The plaintiff's second amended complaint alleges that on or about November 15, 1956, in San Francisco, the defendant Gorges assaulted the plaintiff and further alleges that at the time of the assault the defendant Gorges was the agent, servant, and employee of defendants Great Western Furniture Company, Inc., of Oakland, Great Western Furniture Company, Inc., of San Francisco, and defendant Porter Corporation, and was acting within the course and scope of said agency. Plaintiff prays for compensatory and punitive damages. The defendant Porter Corporation filed its answer to the second amended complaint, a cross-complaint for recoupment against Gorges and the Great Western Corporations and subsequently a motion for a summary judgment.
The motion for summary judgment was based upon two unsigned depositions of the defendant Gorges and an unsigned deposition of one Gelb, the office manager of Great Western. Gelb's deposition has attached, as exhibits, a thrift Club Plan Franchise and rider entered into between the Porter Corporation and Great Western, and also a contract between defendant Gorges and Great Western.
The Thrift Club Franchise provided that the grantee (Great Western) was not to infringe upon grantors' (Porter) copyrights, that the grantors were to disclose necessary information and forms for the successful operation of the plan, and that the grantee would affix copyright notices in grantors' name to all forms used, said forms to be approved by the grantors. Also, all details of grantee's club operations including personnel employed and nerchandise used as premiums were subject to grantors' approval. The grantee was to pay the grantor $1,000 original organization and supervisory expense at once and then $2 for each club membership written and two per cent of the gross sales made to Thrift Club members. The grantee was to render monthly accountings and also pay monthly remittances for royalties due, and the grantors reserved the right of access to the grantee's records to check 'gross sales.' Royalties became established when the purchaser's credit was accepted by the grantee. The grantee was to furnish suitable office space and telephone service without cost to the grantors. Membership redemptions were to be acceptable at any of the grantee's stores, and grantors were not responsible for any intercompany transactions. The agreement was to remain effective until 50,000 Thrift Club memberships were obtained.
The rider to the Thrift Club Franchise extended the rights and privileges of the franchise to all six of Great Western's related and affiliated stores and provided:
'Grantor shall take charge of, manage, and supervise Grantee's Thrift Club Departments, and in its sole discretion shall have full and complete charge of all details of the Thrift Club Departments' operations, including (but without limiting) the employment, management, and supervision of all personnel employed by Grantee for the operation of the said departments and the selection and purchase of merchandise required for use as premiums in the operation of the said Thrift Club Plan.' (Par. 3, Exh. 10A.)
'In its sole discretion The Porter Corporation shall determine the areas or districts in which the Thrift Club operations shall be conducted, the extent thereof, and the performance of all production of Thrift Club memberships to be secured.' (Par. 4, Exh. 10A.)
'This Franchise shall take effect not later than December 1, 1955, it being understood that The Porter Corporation shall have until that time in which to organize the Thrift Club Department and commence the management and supervision thereof.' (Par. 5, Exh. 10A.)
The contract between Great Western and Gorges prepared by Great Western's lawyers provides that Great Western is in the business of selling furniture and appliances, etc., and that Gorges is an independent contractor in the business of soliciting accounts and obtaining customers and that he will undertake to solicit for Great Western on a commission basis (setting forth the commission scale). Gorges was to pay his own costs and it was specifically provided that the agreement was not one of employment or creating an agency. Either party could terminate the agreement at any time upon notice to the other party. Though Gorges is designated as an independent contractor in the agreement, plaintiff alleged in his complaint that Gorges was the agent and employee of both Great Western and Porter Corporation, and there is no contention by respondent Porter Corporation in this appeal that he was anything other than an agent or employee of Great Western.
The depositions disclose that the Thrift Club Plan was a program designed to induce people to make purchases at one of Great Western's stores. The members generally paid $1 a week to collectors such as Gorges, received a merchandise gift on the first payment, and after the weekly payments came to $15 the customer received $15 credit on any purchases made at any Great Western store for $69 or over.
The depositions further disclose, in addition to the contents of the agreements, that the Thrift Club operation was actually housed in Great Western's stores. Its office manager, one McDowell, was brought in by Porter Corporation, but both he and his secretary were carried as employees on Great Western's payroll and deductions were made by it for social security, etc. All constracts negotiated with members of the Thrift Club were in the name of Great Western, merely bearing Louis Porter's copyright notice in small print at the bottom of the page. Office forms and interoffice memos carried the name of Porter. All collections made under the Thrift Club Plan were delivered by the collectors to McDowell and then to Great Western, and Porter Corporation was paid its royalties by monthly checks from Great Western. Mr. Gelb, Great Western's office manager, testified that Great Western had nothing to do with the control of the activities of any of the collectors like Gorges, or with hiring or firing. He described Great Western as only the 'supervising agent' of Thrift Club collectors. Mr. Porter, of the Porter Corporation, had defendant Gorges sign the employment agreement with Great Western and explained the terms of employment to him. Porter Corporation had charge of Gorges' activities, i. e., delineated his duties and determined his routes. He was paid his commissions each week by the Thrift Club's office managr, mcDowell, from Great Western funds and with Great Western checks. Gorges testified that during the time he was employed by Great Western, he was 'working for the Thrift Club, which is the Porter Corporation' and that he was discharged by Mr. Porter. Gorges was carrying out the instructions of office manager McDowell at the time the alleged assault took place. The factual details of the assault need not be explained for purposes of this appeal.
The crucial question is whether a summary judgment should have been granted to defendant Porter Corporation on the ground that Gorges was the subagent and employee of Great Western, and that Porter Corporation as the original agent was free from any tort liability arising out of the conduct of Gorges, under the provisions of section 2351 of the Civil Code.
Motions for summary judgment are provided for in section 437c of the Code of Civil Procedure and in deciding this case the court must bear in mind that in passing upon a motion for summary judgment the primary duty of the trial court is to decide whether there is an issue of fact to be tried. If it finds one, the motion must be denied and the court must not pass upon the issue of fact itself. Walsh v. Walsh, 18 Cal.2d 439, 441, 116 P.2d 62; Eagle Oil & Refining Co. v. Prentice, 19 Cal.2d 553, 555, 122 P.2d 264.
Section 2351 of the California Civil Code provides 'A sub- agent, lawfully appointed, represents the principal in like manner with the original agent; and the original agent is not responsible to third persons for the acts of the sub-agent.' If the undisputed facts make this code section applicable, the courts have consistently absolved the original agent or middleman from liability as a matter of law. Towt v. Pope, 168 Cal.App.2d 520, 336 P.2d 276; Bond v. Pitzer, 163 Cal.App.2d 1, 5, 328 P.2d 1009; Malloy v. Fong, 37 Cal.2d 356, 232 P.2d 241. Where there is no conflict as to the terms of a contract, and where its provisions are not uncertain or ambiguous, its 'meaning and effect * * * and the relation of the parties to it thereby created * * * became a question of law to be decided by the court.' Green v. Soule, 145 Cal. 96, 100, 78 P. 337, 338; Batt v. San Diego Sun Pub. Co., 21 Cal.App.2d 429, 437, 69 P.2d 216; Robinson v. George, 16 Cal.2d 238, 242-243, 105 P.2d 914.
It is our opinion that the written contracts adequately define the relationship of the parties, that the testimony of the witnesses in the depositions as to the actual conduct of the parties is not in conflict therewith and that as a matter of law defendant Gorges was an employee and subagent of Great Western under the supervision of Porter Corporation as managing agent. We conclude that Porter Corporation's motion for a summary judgment was properly granted and the order should be affirmed.
The depositions and agreements attached thereto show that defendant Great Western established its Thrift Club Plan in its own name, to be...
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