Thurn v. La Crosse Liquor Co.

• Decision Date: 06 February 1951
• Citation: 46 N.W.2d 212,258 Wis. 448
• Parties: THURN, v. LA CROSSE LIQUOR CO. et al.
• Court: Wisconsin Supreme Court

Page 212

46 N.W.2d 212

258 Wis. 448

THURN, v. LA CROSSE LIQUOR CO. et al.

Supreme Court of Wisconsin.

Feb. 6, 1951.

Dissenting Opinion Feb. 6, 1951.

Rehearing Denied April 3, 1951.

Johns, Roraff, Coleman & Pappas, La Crosse, for respondent N. Y. Casualty Co.

Otjen & Otjen, Milwaukee, for respondent New York Cas. Co.

HUGHES, Justice.

The plaintiff testified that the highway was icy and that he observed Martindale approaching from the opposite direction at a high rate of speed; that he pulled his car onto the shoulder of the road and had virtually stopped when the accident occurred; that the Martindale car went into a skid and struck plaintiff's car with great force, causing serious injury to plaintiff. This was sufficient to warrant the jury in finding that Martindale was negligent with respect to speed and control. The police officer who was called to the scene of the accident testified that he observed that cars which crossed this icy stretch at slow speeds had a greater tendency to skid than cars which traveled forty miles per hour. Defendant advances a theory that such testimony refutes that of plaintiff. At best, it presented a jury issue and gives no cause to disturb the jury finding upon Martindale's negligence. It certainly does not render plaintiff's testimony incredible.

Appellant Thurn contends that the issue as to whether Martindale was an employee of the La Crosse Liquor Company was a question of fact and that the trial court erred in changing the jury's answer to Question 3 of the special verdict pertaining to control.

This question was submitted in unusual form, but all parties seem to be satisfied that it properly presented the question of whether Martindale was an employee of La Crosse Liquor Company at the time of the accident. Since its form was more favorable to La Crosse Liquor Company than to plaintiff, no one appears injured.

The trial court concluded that the facts concerning the relationship between the company and Martindale were not in dispute and that they clearly establish that Martindale was an independent contractor.

The test used in determining the question of whether one is an employee or an independent contractor is well defined: '* * * the most significant indicium of an independent contractor is his right to control the details of the work. The principal test to be applied in determining whether one rendering services for another is an employee or an independent contractor is whether the employer has the right to control the details of the work. This is the dominant test, although there are other things to be considered, such as the place of the work, the time of the employment, the method of payment, and the right of summary discharge of employees.' Kolman v. Industrial Comm., 1935, 219 Wis. 139, 141, 262 N.W. 622, 623. See, also, Employers Mut. Liability Ins. Co. v. Brower, 1937, 224 Wis. 485, 490, 272 N.W. 359.

'* * * Where the inference is clear that there is, or is not, a master and servant relationship, it is made by the court; otherwise the jury determines the question after instruction by the court as to the matters of fact to be considered.' Restatement of the Law, Agency, 484-485.

In the instant case the salesman was dead at the time of trial and the nature of his relationship to the company had to be determined from the testimony of the general manager of the La Crosse Liquor Company, as amplified by the testimony of another salesman covering his own relationship.

The manager, Czeskleba, testified that the company reserved no right to control the activities of Martindale and that when it gave him a territory to cover he was free to do so in whatever manner he saw fit, receiving commissions on sales made. He also testified that Martindale and the other salesmen attended sales meetings on Monday mornings to learn about the new price lists and the goods that were to be pushed during the following week, and that Martindale was free to attend those or not as he saw fit. He usually did attend. These circumstances, standing alone, would establish the relationship of independent contractor. Henry Haertel Service, Inc., v. Industrial Comm., 1933, 211 Wis. 455, 248 N.W. 430; Kruse v. Weigand, 1931, 204 Wis. 195, 235 N.W. 426; James v. Tobin-Sutton Co., 1923, 182 Wis. 36, 195 N.W. 848, 29 A.L.R. 457.

There was other testimony of Czeskleba, however, which might well lead to the opposite conclusion. He testified that Martindale came to him looking for a 'job' and that he 'hired' him as a salesman.

Martindale called on the trade in a certain area. If orders were phoned to the company from his area Martindale was credited with the sales.

If there was someone in the territory whose credit was not good, the company would not let him take an order except on C.O.D.

He was permitted to collect accounts and issue receipts in the company's name.

Czeskleba further testified that 'The salesmen in our outfit have a great deal of leeway in price fixing, in the event that they can further their sales, and build a volume sale out of what we call a limited sale, by discounting, they are to use their own discretion in the amount of discount that they can give, but there are limitations.' Czeskleba fixed those limitations.

While Czeskleba testified that there was no fixed quota of sales for Martindale to meet, he also testified that if his sales fell down for a month he called that to his attention.

He also testified that after the accident Martindale reported to him and told him that he had a headache and did not think he would make any more calls that day.

Robinson, a salesman who worked under an arrangement similar to Martindale's, testified that in his area the trucks made delivery of orders taken by him on established routes on certain days of each week and that he was expected to call on those customers a couple of days ahead of the truck so that orders taken by him could be delivered.

We conclude that on the entire record in this case the inferences were properly for the jury.

In Crossett v. Goelzer, 1922, 177 Wis. 455, 469, 188 N.W. 627, 632, where the question was whether the son had taken his father's car for his own amusement or for the benefit of the father, the court said: 'While the facts are practically undisputed, it cannot be said that the inferences, to be drawn therefrom are so plain that the minds of reasonable men cannot come to different conclusions in regard to them.' The court there held it to be a question for a jury.

With reference to the testimony of Czeskleba that the company reserved no right to control the activities of its salesmen, the statement of this court in Drakenberg v. Knight, 1922, 178 Wis. 386, 392-393, 190 N.W. 119, 121, is pertinent: 'It is true that it was necessary for the plaintiff to establish that the injury occurred in the scope of Hale's employment and that the car was then used with Knight's consent. The jury were not bound to accept as conclusive the denials of authority by the interested parties, qualified as they were by their other testimony, and we cannot say as a matter of law that there was not credible evidence to meet both of the conditions of liability.'

Counsel for respondents and the trial court place great weight upon State ex rel. J. A. Sexauer Mfg. Co. v. Grimm, 1935, 217 Wis. 422, 259 N.W. 262; Kassela v. Hoseth, 1935, 217 Wis. 115, 258 N.W. 340; and Employers Mut. Liability Ins. Co. v. Brower, supra.

In the latter two cases the determination of the relationship rested upon the interpretation of written contracts, and no question was submitted to the jury.

In the Sexauer Case the question presented was whether substitute service upon the Secretary of State was binding upon a foreign corporation which depended upon whether one France was an agent of the company. The corporation appeared specially and contended that its written contract with France disclosed the relationship of independent contractor. The trial court refused to dismiss the action. The corporation then sought a writ of prohibition to prevent the trial court from continuing the case. After examining the relationship by which France took orders for plumbing supplies manufactured by relator, this court concluded that France was not the agent of the manufacturer but an independent contractor. The court said, 217 Wis. at page 425, 259 N.W. at page 263: 'The facts of this case make a clearer case of an independent contractor than those in the case of Kassela v. Hoseth [ante, 217 Wis. at page 115], 258 N.W. 340. Under that case and the authorities cited in the opinion therein we hold that France was not an agent of the relator in respect to the operation of his automobile, but an independent contractor, if he can be considered as a 'contractor' in any sense in that regard. The term 'independent contractor' is perhaps a misnomer as so applied. It would be more exact to say that no contractual relations whatever existed between France and the relator as to the operation of the automobile. Whether France was a 'contractor' or not, his operation of the automobile was entirely 'independent' of the relator, and, this being so, the relator is not responsible for his conduct in operating it. As counsel have treated the matter as if France operated his automobile either as an agent of the relator or as an independent contractor, we have treated the question from the same viewpoint, regardless of whether the point of view is correctly taken.'

The trial court apparently relied upon this language and was confused thereby. The language is confusing and cannot be considered authority upon the question of employer-employee or independent contractor relationship.

Since the evidence supports the inference drawn by the jury, the answer of the jury must be reinstated and judgment rendered upon the verdict.

That portion of the judgment appealed from by the New York Casualty Company is affirmed. That portion of the judgment appealed from by the...