Stockwell v. Morris

• Decision Date: 25 May 1933
• Docket Number: 1775
• Citation: 22 P.2d 189,46 Wyo. 1
• Parties: STOCKWELL v. MORRIS et al
• Court: Wyoming Supreme Court

22 P.2d 189

46 Wyo. 1

STOCKWELL v. MORRIS et al

No. 1775

Supreme Court of Wyoming

May 25, 1933

ERROR to District Court, Natrona County; C. D. MURANE, Judge.

Action by Lewis J. Stockwell against E. G. Morris and the Maytag Intermountain Company. The Court directed a verdict for defendant company and the plaintiff brings error.

Affirmed.

For the plaintiff in error, the cause was submitted on the brief of H. I. Bacheller, C. G. Cypreansen, and W. B. Holliday, all of Casper, Wyoming.

The Maytag Intermountain Company was responsible for negligent acts of its agent, defendant Morris. He was the agent of the Company, acting under its direction and control. Mechem on Agency, pages 1-3, 21 R. C. L. 817. We believe the evidence clearly established that fact. On May 27, 1930, defendant Morris was working for the Maytag Company in a representative capacity, and by authority derived from it. Mr. Tyler, a salesman for the Company, recognized Morris as his direct superior. The evidence shows that Morris had the authority to employ salesmen, to train them and travel over the territory assisting them to make sales. Morris testified that he was a super-salesman or the oldest man on the job; that he used an automobile on May 27, 1930, in selling washing machines and to demonstrate washers, also to visit other salesmen. He prescribed rules under which salesmen were required to work. He occupied an office at Casper, maintained by the Company. He derived all of his authority from the Company and worked under its direction. He was a sales manager for the territory. The trial court erred in not submitting the questions to the jury, under proper instructions, as to whether the relation of principal and agent existed or whether the relation was that of master and servant.

The cause was submitted on behalf of the defendants in error, on the brief of Durham & Bacheller and E. E. Murane, of Casper Wyoming.

The evidence clearly shows that at the time of the accident Morris was a salesman for the Maytag Company, working on a commission. He was authorized to employ other salesmen and received a commission from sales made by others. Defendant Morris came and went as he pleased. He went to Lander on the day of the accident in his own automobile and at his own expense. He was not directed by the Company to go to Lander, nor to go from Lander to Hudson. He was free and independent to do as he saw fit. On the Hudson trip, he was accompanied by his wife who was killed in the accident. It was no part of his duty to make repairs on machines. The evidence shows that Morris was an independent contractor at the time of the accident and not a servant. Barton v. Studebaker Corp. (Cal.) 189 P. 1025; 16 Am & Eng. Ency. of Law (2d Ed.) 194; Aldrich v. Tyler (Ala.) 89 So. 289; Premier Motor Co. v. Telford, 111 N.E. 645; Dohner v. Winfield Co. (Kan.) 226 P. 767; McCraner v. Nunn, 284 P. 603; Ramp v. Osborn (Ore.) 239 P. 112; Schickling v. Post Co. (Ohio) 155 N.E. 143; Thurman v. Culberson (Tex.) 22 S.W.2d 525. Morris was traveling at his own expense at the time of the accident. His only compensation from the Company for services, was his commission on sales.

BLUME, Justice. KIMBALL, Ch. J., and RINER, J., concur.

OPINION

BLUME, Justice.

In this case Morris, salesman for the Maytag Intermountain Company, was driving his automobile from Hudson to Lander and collided with the automobile of plaintiff. The latter sued the salesman, as well as his principal, for damages caused by the collision. The court directed a verdict for the company, and the sole question herein is--assuming the agent to have been negligent--as to whether or not the court's action was right. The testimony herein is uncontradicted.

Morris was a salesman for the company in selling washing machines, and had been working for it for some years. That was his only occupation. He received a commission on all sales made, and no further compensation. He made no collections, but occasionally seems to have delivered washing machines sold. He drove his own automobile in the performance of his work, and paid his own expenses. He appointed and discharged sub-salesmen under him, receiving a commission on their sales, and he took them out from time to time to show them how to sell washing machines. He was assigned the central portion of the state as his territory, which, perhaps, was somewhat changed from time to time. In any event, there is some correspondence in the record with the company's manager in Denver as to some change to be made therein. The company furnished him with no rules or regulations as to his work, except as to the terms of the contracts to be made for the sale of washing machines. The details of the work were left to him. Contracts for sales, blank forms for which were furnished by the company, were, by the subsalesmen, delivered in triplicate to a girl in charge of an office, which the company kept at Casper, but Morris apparently sent contracts made by him to the Company at Salt Lake. He seems not to have had anything to do with the office at Casper, though apparently he made that his headquarters. On May 27, 1930, the date of the collision above mentioned, Morris, in company with his wife, drove his automobile to Lander to see a Mr. Tyler, a salesman under him, to see if he could help him in his work. After reaching Lander, he, at the suggestion of Tyler, and in company with him, drove to Hudson, to see Mrs. Radovitch, who had a Matag washing machine which was out of repair, though repairs of machines were ordinarily made by a special representative of the company. Tyler discovered the trouble, fixed the machine, gratuitously, and he and Morris then drove back to Lander, and the collision occurred while doing so. Morris wrote the Maytag Company as to that fact.

Counsel for appellant argue that the Maytag Intermountain Company was the principal and Morris was its agent, and that the former is, accordingly, liable herein, and they say that the cases which hold contrary to their contention deal with the relationship of master and servant, and that such cases have no application here. But an attorney is an agent. If, then, in attempting to manage his client's case, he, without specific directions, travels in an automobile to see a man who, in his opinion, might become an important witness in his case, is his client responsible? So we have "Ford agencies," "Buick agencies," and other similar "agencies," handling products of automobile manufacturers. While today the managers of these agencies, ordinarily, perhaps, buy such products, they might handle them tomorrow on commission. They are agents, in the broad sense of that term, but should the manufacturer be held responsible for all the torts that the former might commit in disposing of these products? The Curtis Publishing Company, located at Philadelphia, every week sends its Saturday Evening Posts throughout the country. If a boy in Cheyenne, while on the errand of soliciting subscriptions for the magazine, or delivering it, negligently runs into another with his bicycle, should the company be held responsible? The citation to these examples, which might be multiplied many times, shows that the solution of the problem before us is not as easy as counsel for appellant seem to think, and in view of the fact that the case before us is one of first impression here, we have deemed it expedient to give it more attention than counsel for appellant apparently have thought it necessary.

Prior to the latter part of the seventeenth century, a master was not responsible for the torts of his servants, unless committed by his express command or subsequent assent. But in the case of Jones v. Hart, 2 Salk. 441, 91 Eng Repr. 382, decided in 1699, it was held that if a servant driving a cart negligently runs into another cart, the master is liable. And from about that time commenced to be developed the modern doctrine that a master is responsible for the torts of his servant committed within the scope of his employment. Prof. Wigmore in 7 Harvard L. R. 392-404. Voices against this doctrine were heard from time to time. As late as 1876 Lord Bramwell told a Parliamentary committee that he could not "see why the law should be so--why a man should be liable for the negligence of his servant, there being no relation constituted between him and the party complaining." 26 Yale L. J. 11. But dissenting voices have been swept aside. Shaw, C. J., said in Farwell v. Railroad Corporation, 45 Mass. 49, 38 Am. Dec. 339, that the "rule is obviously founded on the great principle of social duty, that every man, in the management of his own affairs, whether by himself or by his agents or servants, shall so conduct them as not to injure another." The doctrine was carried to its logical conclusion. Independent agents or contractors were treated the same as servants. It was not until the second quarter of the nineteenth century that it was doubted that the doctrine of respondeat superior should be applied in all cases in which one man was employed to perform an act for another. 65 L.R.A. 624-631; note, 14 R. C. L. 79. Two decisions rendered in 1840, namely, Milligan v. Wedge, 12 A. & E. 737, and Quarman v. Burnett, 6 Mees & Welsb. 497, took a definite departure from the then generally accepted rule, and by the middle of that century it came to be recognized that there are many cases in which a man should not be held responsible for the acts of a representative, if the latter is not under his immediate control, direction or supervision. Such representative has generally been called an independent contractor, a phrase that has acquired almost a technical meaning, originally, of course, applied to one who actually performed services under an independent contract. It is not...