Williams v. National Cash Register Co.

• Decision Date: 13 March 1914
• Citation: 157 Ky. 836,164 S.W. 112
• Parties: WILLIAMS v. NATIONAL CASH REGISTER CO.
• Court: Kentucky Court of Appeals

164 S.W. 112

157 Ky. 836

WILLIAMS v. NATIONAL CASH REGISTER CO.

Court of Appeals of Kentucky.

March 13, 1914

Appeal from Circuit Court, Kenton County, Common Law and Equity Division.

Action by Pearl B. Williams against the National Cash Register Company and Todd Meadows. Judgment for plaintiff against Meadows and in favor of defendant company on a directed verdict, and plaintiff appeals. Reversed and remanded.

Robert C. Simmons, of Covington, for appellant.

Stephens L. Blakely and Geo. E. Phillips, both of Covington, C. D Bronson, of Dayton, Ohio, and John H. Klette, of Covington for appellee.

MILLER J.

While the appellant, Mrs. Pearl B. Williams, was riding in a buggy on the streets of Covington on June 10, 1911, she was thrown from her buggy and severely injured in a collision with an automobile. The automobile was owned by Bert. Alexander, a sales agent of the National Cash Register Company, in Cincinnati, having as his territory several adjoining counties in Ohio, and Kenton and Campbell counties, in Kentucky. Alexander's office was in Cincinnati. The machine was driven by Todd Meadows, a chauffeur in the employment of Alexander.

Mrs Williams brought this action for damages against Meadows and the National Cash Register Company, and recovered a judgment for $7,000 against Meadows; but, at the conclusion of all the evidence, the trial court, holding there was no testimony connecting the National Cash Register Company with the accident, or making it responsible for the injury, directed the jury to return a verdict for the company, which was done. Mrs. Williams appeals, insisting that Meadows was in the service of the National Cash Register Company at the time of the collision; the defendant insisting he was the servant of Alexander, under a separate or independent employment. The principal question, therefore, for decision is this: Did the relation of master and servant exist between Meadows, the chauffeur, and the National Cash Register Company?

The automobile was the property of Alexander, and Meadows was his chauffeur, employed by Alexander, and paid by him. Alexander as before stated, was the sales agent of the appellee, working on a commission basis, by which he received a certain commission for all sales negotiated by him or his employes; he paying all of his expenses in maintaining his office and his agency, under a written contract with the company. Alexander repaired cash registers in the territory of his business; and in doing so, according to the testimony for appellee, he bought repair parts from the company, made charges for repairs independently of his business for the company, collected all the money for repairs, and made no report thereof to the company.

At the time the accident occurred, Meadows and McLaren, also in the employment of Alexander, were delivering a cash register to Shotwell, in Latonia. Meadows says the register had been repaired by Alexander at a cost of $8.50, and that this repair bill was collected by Meadows when he delivered the register to Shotwell on the day of the accident. Shotwell, however, does not agree with Meadows about the repairs, but says the only time the cash register in question was delivered to him was the occasion of its delivery under the original purchase. In this, however, he is probably mistaken, since Shotwell's original order, dated April 15, 1910, about 14 months before the accident, is produced by the company, and Shotwell receipts for payments under that order are produced by him. Shotwell does not remember ever having had any repairs made upon his register; but Meadows is corroborated by McLaren, who was present at the time of the delivery and the payment of the bill, and by Shephard, Alexander's bookkeeper, who proves the credit.

As there is a decided difference between opposing counsel as to the contract relations between Alexander and the company, a consideration of the terms of the contract between them becomes necessary to determine whether the relation of master and servant existed between the National Cash Register Company on the one side, and Alexander and his employes on the other. The case would not be different, in so far as it relates to the liability of the National Cash Register Company, if Alexander himself had been driving his automobile instead of his employé Meadows, since in either case the question is this: Was the register being delivered by Alexander for the National Cash Register Company, or for himself alone? If the company had the right to say not only what should be done by Alexander in the conduct of his business for the company, but how he should do it, the relation of master and servant existed.

The contract is in the form of 41 written propositions directed to Alexander by the National Cash Register Company, and accepted by him, by which the company appointed Alexander as its sales agent for the sale of its cash registers in the territory above indicated. The provisions of the contract which are material to this discussion, are as follows:

"(1) You agree to devote your whole time and best endeavor to the business of the company in said territory, under the direction of its officers or their representatives, and to conform with the rules and regulations of the company now in force, and which may be hereafter adopted and mailed to your address. You also agree to employ such salesmen to assist you, and upon such terms and conditions as the company may require."

"(6) It is mutually understood and agreed that the company shall have the right, at all times and under any circumstances, to adjust the commission on any sale that may be in dispute between you and any other sales agent of the company--that is, where question may arise as to which sales agent is entitled to said commission--and the company's decision shall be final."

"(13) You agree that you will not, under any circumstances give any part of your commission to any assistant, local agent, or other person as an inducement for him to assist you in making a sale, without permission of the company.

"(14) All orders for cash registers shall be taken upon the printed forms furnished by the company, which are to be returned to the company immediately after the signature by the purchasers, and all conditions and special arrangements shall be noted thereon, it being understood and agreed that the company shall in no way be responsible for promises or conditions not specified on the orders. No registers or supplies are to be sold for more or less than the list price established by the company, plus freight or express. If the company is obliged to make any concessions to customers, or any expense is incurred by a violation of these requirements, the amount thereof may be charged to your account if the company so elects."

"(16) You agree that you will not purchase or deal in second-hand registers on your own account during the continuance of this contract.

"(17) You agree to see that the necessary repairs on registers sold by the company or its agents in your territory, that can be made by you, through your agency, are promptly and properly made, in such manner as the company may direct, and to co-operate with and aid the company making all other repairs in your territory.

"(18) The company to send bills direct to purchaser who are to pay them direct. But when the company is to collect any note or account through the usual course, and it becomes necessary to place the same in your hands for collection, you are to collect promptly and remit at once all amounts collected, whether the sale was made by you or not.

"(19) You agree to make daily remittances to the company of all cash received by you for the company, including money received for repair parts or supplies sold, or by way of a compromise when a register is taken back, in the manner prescribed by its treasurer; and in no event shall you use any sum of money collected for the company to defray the expenses of your agency, or for any other purpose, or deposit the same in any bank to your credit. All checks made payable to the company are to be forwarded directly to it the same day they are received and if by inadvertence a check for an amount owing to the company is made payable to you, you will indorse and forward it to the company the same day it is received. If a payment be made to you in currency you will buy a draft, money or express order. The company reserves the right to refuse your personal check in payment of any amount due it. In no case and under no circumstances will you sign the company's name; but, should a purchaser require a receipt for a cash or other payment, you will receipt to him in your own name as sales agent, and if desired the company will forward an official receipt direct to the purchaser for all amounts which may be credited to his account."

"(21) You are to pay your own expenses; the company to pay none of your traveling, office or other expenses, for which you expressly agree to contract in your own name, and under no circumstances are you to represent that the company is responsible for the same.

"(22) All attorney's fees and costs arising upon collection of the prices of registers sold by you or recovering possession of same shall be divided between you and the company on the same percentage basis as the commission was originally credited. In case a cash register is shipped to a purchaser on an order procured by you, and the purchaser makes no payment on the same, you are to pay your proportional part of the express or freight charges on the register as above stated. You are to pay your own expenses in attending on trials of cases, whether you are responsible for the same or not, if the company so elects. No charge to be made against you for the

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