Wilson v. Kauffman

• Decision Date: 24 May 1973
• Docket Number: No. 3--1072A74,3--1072A74
• Citation: 296 N.E.2d 432,156 Ind.App. 307
• Parties: Vira WILSON, Administratrix of the Estate of Robert L. Wilson, Deceased, Appellant (Plaintiff Below), v. Betty R. KAUFFMAN et al., Appellees (Defendants Below).
• Court: Indiana Appellate Court

Page 432

296 N.E.2d 432

156 Ind.App. 307

Vira WILSON, Administratrix of the Estate of Robert L Wilson, Deceased, Appellant (Plaintiff Below), v. Betty R. KAUFFMAN et al., Appellees (Defendants Below).

No. 3--1072A74.

Court of Appeals of Indiana, Third District.

May 24, 1973.

Grimm & Grimm, Edgar A. Grimm, Auburn, H. E. Petersen, LaGrange, for appellant.

Milford M. Miller, Edward L. Murphy, Jr., Fort Wayne, for appellees; Livingston, Dildine, Haynie & Yoder, Fort Wayne, of counsel.

SHARP, Judge.

This is a summary judgment case. The complaint for wrongful death was filed by the Appellant naming the Appellees, Betty R. Kauffman, Melvin Kauffman and The South Bend Tribune, as defendants. This case arose from a collision on November 9, 1970 of vehicle operated by the Appellant's decedent and a pickup truck operated by the Appellee, Betty R. Kauffman. As a result of injuries sustained in said collision the Appellant's decedent died on November 19, 1970. The complaint charges Betty R. Kauffman with negligent acts and alleges that at the time of the collision she was acting as an agent or servant of the Appellee The South Bend Tribune. The Tribune moved for summary judgment on that issue which was granted by the trial court for the reason 'that neither Betty R. Kauffman nor Melvin Kauffman was an employee of The South Bend Tribune. That Melvin Kauffman was an independent contractor. That The South Bend Tribune is not responsible for any alleged negligent acts of Betty R. Kauffman or Melvin Kauffman'.

The propriety of granting summary judgment for the Tribune is the sole question which has been duly and properly preserved for our consideration on this appeal.

When considering the Tribune's motion for summary judgment the trial court had before it the pleadings, the depositions of both Kauffmans, the deposition of Roy S. Henderson, Circulation Manager of the Tribune, plus the affidavits of Roy S. Henderson, and also of Edgar A. Grimm and Milford M. Miller. As always in a summary judgment case, the above described pleadings, depositions and affidavits must be construed in the light most favorable to the party against whom summary judgment is requested, and in this case that party is the Appellant.

In 1959 Melvin Kauffman entered into a written contract with the Tribune with reference to the delivery of the latter's newspapers in an area included in a 50 mile radius of South Bend, Indiana. The precise terms of said contract were:

'MEMORANDUM OF AGREEMENT (sic) made this 13th day of May 1959, between South Bend Tribune, a corporation, referred to hereinafter as the 'Publisher,' and Melvin D. Kauffman, referred to hereinafter as the 'Contractor,' Witnesseth, that for and in consideration of the mutual promises herein contained the parties hereto agree as follows:

1. The Contractor agrees to deliver, beginning May 17, 1959, newspapers published by the Publisher from its place of business in South Bend, Indiana, to such persons and at such places and along such route or routes and on such regular schedule or schedules as may from time to time be designated and furnished to him by the Publisher; the time of, and the routes and schedules for, said delivery, and the strict adherence thereto, being the essence of this contract. Until change is made in schedule by the Publisher, delivery of said newspapers shall be completed as early as practical after they are received from Publisher.

2. The Contractor agrees to make such delivery at his own expense and according to his own means and method of conveyance which shall belong to and be in the exclusive charge and control of the Contractor, and which shall not be subject to the control or supervision by the Publisher, except as to the results of said work.

3. The Contractor agrees not to deliver publications other than those of the Publisher while he is performing the work required of him hereunder, without the written consent of the Publisher first had and obtained.

4. The Contractor agrees to hold the Publisher free and harmless from all claims and demands which may arise from or grow out of the work to be performed hereunder by him.

5. The Publisher agrees to pay the Contractor $110.98 weekly.

6. This agreement may be terminated by either party at any time without notice.'

Since 1959 Kauffman has been paid for the delivery of said newspapers by the Tribune on a mileage basis and not on the basis set forth in paragraph 5 of the contract, supra. Kauffman owned the vehicle used for such deliveries at all times including on the day of the collision here. Kauffman was paid for the delivery of newspapers for 365 days per year but the paper is only published 361 days per year. The Tribune knew that Betty R. Kauffman generally drove the route and delivered the newspapers. The Tribune has 21 such delivery districts in which bulk newspapers are delivered by the Tribune. These 21 districts are established on the basis of the number of accounts involved in each and the ability of a carrier to actually handle the deliveries in the particular geographical district. The Tribune regularly gives Kauffman a manifest telling him where to deliver newspapers and the Tribune sustains any loss on bulk newspapers so handled. As an incident of this relationship with the Tribune the Kauffmans were furnished a group insurance policy on which the Tribune paid a substantial portion of the premium. The Tribune determined the type of vehicle and equipment that any potential carrier or deliverer was required to use and also determined whether the equipment actually used by such carrier was satisfactory for the purpose of delivering newspapers. At the time here in question the Kauffmans were supervised by Henderson as Circulation Manager and by Jerry Vagg as Country Circulation Manager, the latter working directly under Henderson. The route traveled on the date here in question had been predetermined and laid out by the Tribune acting through its circulation department. On various occasions the General Circulation Manager and the Country Circulation Manager rode over the routes with the carriers, including the Kauffmans. This particular route is approximately 160 miles long. The Tribune has never consented for the Kauffmans or any other carrier working for the Tribune to deliver any publication other than the Tribune's newspaper and probably would not grant such permission even if requested. If the Kauffmans chose to drive a route differing from the one laid out by the Tribune they would still be compensated on the basis of the mileage on the route as laid out and predetermined by the Tribune. The Kauffmans are currently paid at the rate of 16cents per mile and received bonuses plus some group insurance benefits. This mileage rate has been increased since 1959. The tribune has had occasions to discipline some of the carriers by calling them in but has never had to take such action as to the Kauffmans. On occasion the carriers are paid extra compensation for delays at the Tribune plant which are not caused by the carriers. All of the stops on the route are predetermined by the Tribune. This collision occurred on the designated route at a time when Betty R. Kauffman was making deliveries of the newspaper. The road at the point of the collision is wavy with dips and various other defects. It is the shortest route between two designated delivery points. The Circulation Manager also stated that the carriers were also paid extra compensation on the basis of the number of pages in a given issue of the newspaper.

Against this factual background we must determine whether there was a genuine issue as to a material fact with reference to respondeat superior. Or, we must determine if the Tribune is entitled to judgment as a matter of law on that issue so as to take the Tribune out of this lawsuit.

We should also emphasize that we are here concerned with more than the simple provisions and construction of the 1959 contract. We also have here factual detail as to the precise nature of the relationship between Kauffmans and the Tribune over an extended period of time up to the date of the collision which caused Appellant's decedent's death. These factual details of this relationship go beyond the original contractual description of the job of delivering newspapers and represent a relevant course of conduct between the Tribune and the Kauffmans for consideration by the trier of fact. The Appellee has attempted to isolate and dissect the various elements of this relationship and thereby suggest that no permissible inference could be drawn to establish that Kauffmans were employees or servants of the Tribune. The trier of fact is entitled to consider the totality of the circumstances of this relationship to determine whether, in fact, the Kauffmans were acting as agents, servants or employees of the Tribune at the time of this collision. It may be that the trier of fact will reject the Appellant's contentions upon consideration. Whatever the decision is by the trier of fact, it is one which must be submitted to it. See Jones v. Bergman, 105 Ind.App. 429, 15 N.E.2d 740 (1938).

Given the inferences most favorable to the Appellant here, the facts do not inescapably lead to the conclusion that the Kauffmans were independent contractors. Recently this court was confronted with a similar issue in Watson v. Tempco Transportation, Inc., Ind.App., 281 N.E.2d 131 (1972), in which a summary judgment had been granted in the trial court. Judge Robertson, speaking for this court, reversed stating:

'It is manifestly clear from the foregoing evidence and the arguments of the respective parties that there existed a good faith disagreement as to the inferences to be drawn from the evidence. Accordingly, it is our opinion that the conflict as to the inferences to be drawn from the facts of this case could only properly be resolved by the jury, and thus it was reversible error for the Trial Court to sustain Tempco's ...