
    Plost v. The Avondale Motor Car Co.
    (Decided October 14, 1935.)
    
      
      Messrs. Nichols, Morrill, Wood, Marx & Ginter and Mr. Milton H. Schmidt, for plaintiff in error.
    
      Mr. Leonard J. Dempsey, Mr. Bichard Bemke and Mr. Louis J. Schneider, for defendant in error.
   Ross, P. J.

This is a proceeding in error from the Court of Common Pleas of Hamilton county, wherein judgment was rendered for the defendant, The Avon-dale Motor Car Company, upon a verdict being instructed in its favor, at the conclusion of the evidence of plaintiff.

The parties will be referred to as they appeared in the trial court, being the same in this court.

The action was originally instituted by Meyer Plost for damages suffered by him when he was struck by an automobile driven by Joseph Scharff, a commission salesman of the defendant. i

Meyer Plost having died before trial, the action was revived in the name of his wife, Masha Plost, his administratrix.

The injuries were received by the deceased while walking across a street intersection in the city of Cincinnati. The evidence amply sustains the charges of negligence against the driver of the automobile.

The real question presented arises by reason of the alleged responsibility of the defendant, The Avondale Motor Car Company, for the acts of the driver of the automobile.

. The plaintiff claims that the evidence submitted established the fact that the relationship of “master and servant” or “principal and agent” existed between the defendant and the driver of the automobile.

The defendant claims, on the other hand, that the evidence submitted by the plaintiff “failed entirely to establish any agency or employment of any kind or any relationship of master and servant which would bring into the case the rule of respondeat superior, but, on the other hand, the evidence showed definitely that the man who caused the injury was at best an independent contractor, working on his own time and under his own control, and was in' no way under the control directly or indirectly of the defendant company.”

The driver of the automobile testified that at the time the injuries were inflicted upon the deceased he was employed by the defendant, that the sales manager, an official of the company and in general charge of the business, had employed him, that as a salesman he came to the office of the company in the morning and made reports of the previous day’s work, that the salesmen left about 9 o’clock, that a company record was kept of their daily attendance, that he worked upon a commission basis, that he was under the direction and control of the sales manager, that he was not permitted to do any other work, that there were prospective purchasers who could not be seen during the day and that these must be interviewed at night, that it was necessary to use an automobile to see such persons at night, although sometimes the telephone might be used, that shortly before injuring the plaintiff’s decedent an automobile loaned to him by the defendant for business purposes and for which he held a bill of sale was taken back by the sales manager, and that thereafter and at the time of the injury to the plaintiff’s decedent he was driving his own automobile, a Ford, which bore the license plates formerly carried upon the Chevrolet automobile loaned by the defendant to him, and which he had told the sales manager he would use in making calls at night, that he used such car in carrying on the business of the defendant, that he carried with him a sales book and order blanks for sale of the automobiles of the defendant, he also carried calling cards issued him by the defendant, that he was not discharged as an employee of the defendant prior to the time when the plaintiff’s decedent was injured, that during the month in which the plaintiff’s decedent was injured he was given “floor duty,” which was awarded to salesmen who had been successful in making a large number of sales the preceding month, that salesmen traded off such assignments to floor work, and that he had so traded with other employees of the defendant company, that “floor work” required the salesman to be on duty in the salesroom of the company until about 9 o’clock p. m., that on the night when his automobile struck the decedent he was on his way to visit a prospect, for the purchase of one of the automobiles of the defendant, with whom he had become acquainted while doing “floor work” some two weeks previous, that he continued in the employment of the 'defendant until several months after the injury to the plaintiff’s decedent.

The salesman was not permitted to testify that he had made a report of the accident to investigators for the defendant. An exception was taken to this refusal and a proffert of the evidence made. •

On cross-examination the salesman stated he had no definite term of employment, or any agreement in writing, that no one in the defendant’s organization told him where or when to see any particular person, that he had never reported the person he was going to see on the night of the accident as a prospect, that the defendant expected him to “get around quickly and systematically,” that he sold cars for the defendant after the date of the accident. A letter was read to the witness in which the manager of the defendant company . severely criticized him for arriving late at a night meeting of salesmen, and also for being tardy at morning meetings of salesmen. This letter concluded with the statement that unless the salesman “can see fit to get down to brass tacks and down to hard work, I just don’t want you around here.” The salesman admitted having received such letter.

This constituted all the evidence affecting the question involving the business relationship of the salesman to the defendant. In our opinion it is not sufficient to show any contractual right to control the actions of the salesman at the time the injuries were inflicted such as is necessary to establish responsibility for such acts upon the defendant. Restatement of the Law of Agency, Section 220 et seq.

Section 220 provides:

“(1) A servant is a person employed to perform service for another in his affairs and who, with respect to his' physical conduct in the performance of the service, is subject to the other’s control or right to control.

“(2) In determining whether one acting for another is a servant or an independent contractor, the following’ matters of fact, among others, are considered: (a) The extent of control which, by the agreement, tiae master may exercise over the details of the work; (b) whether or not the one employed is engaged in a distinct occupation or business; (c) the kind of occupation, with reference to whether, in the locality, the work is usually done under the direction of the employer or by a specialist without supervision; (d) the skill required in the particular occupation; (e) whether the employer or the workman supplies the instrumentalities, tools, and the place of work for the person doing the work; (f) the length of time for which the person is employed; (g) the method of payment, whether by the time or by the job; (h) whether or not the work is a part of the regular business of the employer; and (i) whether or not the parties believe they are creating the relationship of master and servant. ’ ’

Id., Section 250 et seq. Section 250 provides:

“Except as stated in section 251, a principal is not liable for physical harm caused by the negligent physical conduct of an agent, who is not a servant, during the performance of the principal’s business, unless the act was done in the manner directed or authorized by the principal or the result was' one intended or authorized by the principal.”

See also 21 Ohio Jurisprudence, 624, 632; City of Tiffin v. McCormack, 34 Ohio St., 638, 32 Am. Rep., 408; Pickens & Plummer v. Diecker & Brother, 21 Ohio St., 212, 8 Am. Rep., 55; Snodgrass, Admx., v. Cleveland Co-Operative Coal Co., 31 Ohio App., 470, 167 N. E., 493; Gahagen Co. v. Smith, 48 Ohio App., 290, 194 N. E., 26; Dayton Biscuit Co. v. Aerni, 40 Ohio App., 49, 177 N. E., 775, and Post Publishing Co. v. Schickling, 22 Ohio App., 318, 154 N. E., 751.

In the instant case, as in the Post Publishing case,supra, the defendant was interested only in the result —in the instant case, in securing orders for the purchase of its automobiles. It was certainly unconcerned as to how such results were obtained, whether by use of the telephone, street car, walking, or with the vehicle of the salesman. The relationship was terminable at the will of the parties. The defendant had withdrawn from the salesman the use of its automobile. The relationship between the salesman and the defendant could be scarcely more tenuous. In the Post Publishing Company case, the employee used his own conveyance. In that case, at page 322, this court said:

“Applying these rules to the facts of this case, the only interest that the publishing company had in the engagement of Header was to have him take his machine and deliver the Posts at the stations indicated by a slip attached to each bundle. It was only interested in the result. Header could appear or not as he saw fit. No directions or route of travel were given. He was not limited in his time in making the delivery. In other words, the Post Publishing Company reserved no control over the manner or method of performing the service required.”

In this case there is not even a scintilla of evidence that the defendant reserved any species of control over the manner or method of performing the service, producing a result in which latter only the defendant had any interest. The fact that the salesman used a Ford automobile, with the knowledge of the defendant, when taking orders for Chevrolet cars would seem to firmly answer any suggestion that the dealer in such Chevrolet cars had any control over the manner in which orders were to be secured for its automobiles.

The utmost that can be claimed for the evidence of the plaintiff is that it showed that the salesman was' permitted to take orders for automobiles sold by defendant and that defendant insisted that the salesman should keep in touch with its sales propaganda by attendance at sales meetings.

It would appear that the criterion of responsibility is not so much whether the principal did control, but whether it was definitely and specifically a part of the agreement of employment that thé principal should have the right to control the physical performance of the representative. In the instant case, the defendant might have, in some specific instance, directed or requested the representative Scharff to perform his duties in a particular manner. There is no evidence, however, that this would have been within the contract of the parties, or even justified by any custom prevailing at the time. The only possible form of coercion for failure to meet such a request which the defendant could have used in the instant case would have been to have refused to permit Scharff to longer sell the cars of the defendant. If the defendant had directed Scharff to go in a particular manner at a particular time and to a particular prospect, and Scharff had refused to comply with these instructions, we fail to find anything in the agreement between the parties which would justify the conclusion that Scharff could justly be charged with a breach of his contract with the defendant. It seems only logical that such an element should exist before the defendant should be held liable for any negligence of the representative in performing a service which may be to the benefit of the defendant as well as to himself.

It is because of this that factors, such as that the representative is driving the defendant’s car, or is on a definite salary paid for specific duties, or is limited to specific areas of activity become important in determining the right to control the acts of the representative.

At the beginning of the trial the following occurred:

“And thereupon the plaintiff to maintain the issues upon her part, offered the following evidence, to wit:

“Mr. Schmidt: Let the record show that on February 23, 1935, the plaintiff served upon counsel for defendant a demand for the production of the following documents: all of the original reports made by the Avondale Motor Car Company, or any of its officers or employees or by Joseph Scharff, to any insurance or indemnity company, relative to the accident- as described in plaintiff’s petition,. This demand was,part of a demand calling for other books and documents in addition to those above specified. The defendant complied with the demand with respect to all of the books and documents except those contained in the paragraph .above.

“Counsel for plaintiff at the opening of the trial made a motion to compel the defendant to produce said documents, or copies thereof, and the court on consideration of said motion, finds that the same is not well taken and it is therefore overruled, to all of which the plaintiff excepts.”

It is claimed that this action of the court constituted error, prejudicial to the plaintiff. Section 11551, General Code, provides as follows:

“Upon motion, and reasonable notice thereof, the court, in which an action is pending, may order the parties to produce books and writings in their possession or power which contain evidence pertinent to the issue, in cases and under circumstances where they might heretofore have been compelled to produce them by the ordinary rules of chancery. If the plaintiff fails to comply with such order on motion, the court may give judgment for the defendant as in case of nonsuit; if a defendant fails to comply with such order, on motion, the court may give judgment against him by default. ’ ’

The record is silent as to what occurred at the hearing upon the motion to order the production of the documents. We are unable to find, therefore, that the record affirmatively shows that the court abused its discretion in refusing to order the defendant to produce the documents in question. Such failure to so order may or may not have been an abuse of the discretion reposed in it by the Legislature. The record furnishes no matter upon which this court can predicate anything other than a surmise.

It is our conclusion that reasonable minds could not disagree as to the conclusion that under the authorities the defendant had no contractual right of control over the physical acts of the salesman and that the trial court therefore properly instructed a verdict for the defendant.

“When the facts attending any issue in an action are admitted or the evidence in respect thereto is not in conflict, it is the duty of the trial court to charge the jury the result that must follow an application of the law to the facts so established; and, where the question is whether the relation of master and servant or that of independent contractor arises by reason of such facts, the trial court should say to the jury which relation exists, and it is prejudicial error to submit the determination of that question to the jury.” Schickling v. Post Publishing Co., 115 Ohio St., 589, 155 N. E., 143.

The judgment is therefore affirmed.

Judgment affirmed.

Matthews and Hamilton, JJ., concur.  