Sinclair v. Perma-Maid Co., Inc.

• Decision Date: 29 June 1942
• Docket Number: 174,175
• Citation: 345 Pa. 280,26 A.2d 924
• Parties: Sinclair et al. v. Perma-Maid Co., Inc., Appellant
• Court: Pennsylvania Supreme Court

26 A.2d 924

345 Pa. 280

Sinclair et al. v. Perma-Maid Co., Inc., Appellant

Nos. 174, 175

Supreme Court of Pennsylvania

June 29, 1942

May 12 1942, Argued

Appeals, Nos. 174 and 175, Jan. T., 1942, from judgment of Superior Court, Oct. T., 1941, Nos. 156 and 157, affirming judgments of C.P. No. 7, Phila. Co., March T., 1940, No. 894 in case of Mary E. Sinclair et vir v. Perma-Maid Co., Inc. Judgments affirmed.

Trespass for personal injuries. Before DAVIS, P.J.

Verdict and judgment for each plaintiff in sum of $2,500. Defendant appealed to the Superior Court, which affirmed the judgments of the court below. Appeal by defendant to Supreme Court allowed.

The judgments are affirmed.

Harold Scott Baile, with him Pepper, Bodine, Stokes & Schoch, for appellant.

I. S Bernstein, for appellees.

Before SCHAFFER, C.J.; MAXEY, DREW, LINN, STERN, PATTERSON and PARKER, JJ.

OPINION

MR. CHIEF JUSTICE SCHAFFER:

Plaintiffs were injured when struck by an automobile owned and driven by Paul M. Owen. He was a salesman, selling cooking appliances for defendant. His remuneration was solely by a commission on the articles sold. Is defendant responsible in damages for his lack of care? The trial court and the Superior Court determined it is.

Owen came into defendant's employ as a result of a newspaper advertisement, which read in part: "Men with cars. The Philadelphia Office of the Perma-Maid Co. . . . Men with the following qualifications: must have car; twenty-five or over; married; good appearance; must talk well. . . . Advanced commissions. . . . Apply . . .". Owen applied to defendant, with the result that it entered into a salesmanship contract with him, the material parts of which read: "The company hereby appoints the said salesman as one of its representatives to sell 'Perma-Maid' specialties. . . . The salesman agrees to send in reports each week in the form provided by the company and to carry out his obligations under the contract under the direction and control of the company or any of its duly authorized representatives, it being understood that failure to do so gives the company the right to cancel this contract. It is further understood that the direction and control reserved herein by the company shall extend only to the results sought to be accomplished under this contract, and to the right to question the sufficiency of the said results as measured by the requirements of this contract." The contract provided for a commission ranging from 20% to 25%. Nothing was said in the contract about the salesman having a car. However, Owen did have a car and so informed Ryan, defendant's sales manager, who negotiated the contract with him.

The method of developing sales pursued by the company consisted in interesting householders in cooking utensils which were offered for purchase. They were carried in a container which, with its contents, weighed forty-two pounds. The manner of interesting prospective customers was by Owen or the district manager arranging with a housewife to invite a number of her friends to her house for dinner. It was Owen's duty on these occasions to supply the food at his expense and to prepare and cook the dinner in the house with his kit of equipment, which he carried in his car, and to serve it with the help of a maid, who was employed and paid by him. Following the dinner, he delivered what was called a "health lecture" to the group, stressing the merits of defendant's appliances. He then took the names of all the guests and later called upon each of them in an effort to interest them in buying. When he injured plaintiffs, he was proceeding from one prospective customer to another. The district manager had told him to make the calls.

In traveling Owen used his own automobile, paid for the gas and oil that was required, saw to the maintenance of the car and to the expense of keeping it in a garage, receiving no traveling expense allowance, fixed his own routes for traveling and was in sole control of the actual operation of the automobile.

It is...