Summary
In Nichols v. G.L. Hight Motor Co., 63 Ga. App. 166, 10 S.E.2d 439, Johnson, the driver of the automobile which caused the death of plaintiff's son, was at the time employed as a salesman of the Hight Motor Company. That company furnished him with an automobile for the purpose of performing his duties.
Summary of this case from Crosby v. Braley GrahamOpinion
28192.
DECIDED JULY 13, 1940. REHEARING DENIED JULY 30, 1940.
Action for damages; from Floyd superior court — Judge Porter. October 13, 1939. (Application to Supreme Court for certiorari.)
Maddox Griffin, for plaintiff.
Matthews, Owens Maddox, for defendant.
1. In order to hold an automobile sales agency liable for injuries inflicted by an automobile furnished to an automobile salesman employed by it, while being operated by the salesman, the relation of master and servant must exist, and the servant must have been acting at the time within the scope of his employment in performing an act for the master's benefit.
2. Inasmuch as the determination of the relationship of independent contractor or servant must, in the last analysis, depend on the question whether the contract reserves to the employer the power of control over one engaged to perform work or service, the fact that the salesman's services are compensated for on a commission or percentage basis, while an element to be considered, is not controlling, and is not a decisive test by which to determine whether he is an independent contractor or a servant.
3. In determining whether one person, in performing certain services for another, does so as an independent contractor or as a servant the real test is whether the person alleged to be the master, under his arrangement with the other person, has or has not any authoritative control of the latter with respect to the manner, method, and means in which the details of the work are to be performed.
4. Where there was evidence tending to show that the plaintiff's son was killed as a result of alleged negligence of one who was employed as an automobile salesman by the defendant, an automobile sales agency, that the sales agency exercised the right to direct and control the manner, method, and means by which the salesman performed the duties of his employment (such negligence consisting in the operation of an automobile belonging to the automobile dealer and furnished to the salesman for use in his work), and that at the time of the accident which resulted in the death of the plaintiff's son the salesman was on his way to call upon a prospective purchaser of an automobile, at the direction of the sales manager of the automobile dealer, a jury would be authorized to find that the salesman was at the time the servant of the sales agency, and was acting within the scope of his employment as such, and that the defendant was liable to the plaintiff for the homicide of her son. It was error to award a nonsuit.
DECIDED JULY 13, 1940. REHEARING DENIED JULY 30, 1940.
Mrs. Mary Nichols filed suit against G. L. Hight Motor Company and Herman Johnson, to recover damages for the death of her unmarried son, upon whom she was dependent and who contributed to her support, alleged to have been caused by the negligence of the defendants. She alleged that the motor company was an automobile sales agency; that Johnson was in its employment as a salesman; that part of Johnson's duties was to call on prospective purchasers of automobiles and to demonstrate the automobiles to them; that for this purpose the motor company furnished to him an automobile to be used by him in calling on prospective purchasers; that on February 3, 1939, at 7 o'clock p. m., Johnson, while driving an automobile furnished to him by the motor company, negligently ran upon and killed the plaintiff's son; that this automobile belonged to the motor company and was furnished to Johnson to be used by him in the purposes of and furtherance of its business; that Johnson was an employee of the motor company, engaged in its business, and acting within the scope of his employment when he ran upon and killed the plaintiff's son. The motor company answered and denied liability. It admitted that it was engaged in the sale of automobiles to the general public, but denied that Johnson, when he ran upon the plaintiff's son, was employed by it as a salesman. It alleged "that at said time it had a contract with the said Herman Johnson under which he sold automobiles for this defendant on a commission basis;" that while, under the contract with Johnson, he was to call upon prospective purchasers of automobiles and demonstrate automobiles to them in an effort to sell automobiles, "the same was done by the said Herman Johnson under the said contract as an independent contractor;" that it loaned an automobile to Johnson to be used by him in any way he saw fit, for the purpose of furnishing transportation to him either for himself or when he was on business for the motor company; and that the automobile which was being driven by Johnson at the time he ran upon the plaintiff's son belonged to it, and had been furnished to Johnson in the way and manner above set out. It denied that Johnson was its agent and employee and was engaged in the business of the company and acting within the scope of his employment at the time he ran upon the plaintiff's son.
At the conclusion of the evidence for the plaintiff on the trial, the motor company moved for a nonsuit on the ground that there was not sufficient proof to show that Johnson was its agent and employee at the time, and that there was not sufficient evidence tending to show that at the time of the accident Johnson was engaged in the performance of the business of the motor company and acting within the scope of his employment. The evidence for the plaintiff otherwise made a prima facie case, and it is contended by the motor company only that the evidence was insufficient to show that Johnson was its agent and employee, and engaged in the performance of the duties of his employment, at the time he drove the automobile belonging to the motor company into the plaintiff's son and killed him. The evidence on which the plaintiff relied to show that Johnson was in the employment of the motor company, and that at the time of the homicide he was engaged in the performance of his duties as such employee, was in part as follows:
Several witnesses testified that they saw Johnson daily, and that he was engaged in the sale of automobiles for the G. L. Hight Motor Company, an automobile sales agency in Rome, Georgia, for Chevrolet automobiles. Witnesses testified that Johnson continuously used an automobile in the prosecution of his business or employment for the motor company, that he demonstrated automobiles for that company, and that he used the automobiles he was driving for the purpose of sale. Johnson testified, in part, as follows: "On February 3d of this year, 1939, I was employed with G. L. Hight Motor Company. I am working under a contract. The contract is not in writing. I worked on a commission basis. The contract is by word of mouth. I entered into that contract with them about October five years ago. . . I have been continuously employed by G. L. Hight Motor Company. . . Under the agreement . . I was to work for the company and sell automobiles on a commission only, and they were to let me have automobiles to use for that purpose, to demonstrate, and any other purpose in connection with my sales. On this particular occasion I did have an automobile that belonged to G. L. Hight Motor Company; that is, on the date of this accident, and at the time I was going to see Mr. Robert Hardin, at Sterchi's. I wasn't looking for him. I knew he wouldn't want to leave his work for the company then. Friday, they had a sales meeting. I worked there once, and I knew I couldn't get hold of him there, and the traffic was heavy, and my wife worked at the Partridge Cafe and I told her I would be a little late, and ate supper while I was there. . . On this occasion I got this automobile up there at the G. L. Hight Motor Company. That is where it came from, it belonged to them, and was their automobile. It was turned over to me. I had been driving it a few days. I used it in carrying out the business I was doing for them, and the way I was working I was paid for every automobile sold, on a commission basis. I was given the commission on all automobiles I sold, each month around from the first to the fifth; in other words I was paid once a month. I wasn't given a weekly salary. I wasn't given a salary in addition to what I made there from the sales of those automobiles, and I wasn't given a drawing account. I could draw, they could loan as much as $15 a week. . . I was paid $15 whether I sold or didn't sell any automobiles; and when I sold them that was charged back against my sales, and this $15 a week was merely a loan. . . All I did when I wanted the $15 once a week, I merely went in there to the desk or cashier, or whoever paid the money, and they had my $15 all ready; they wrote a check for it, but I had to ask Mr. Stephens in advance. They paid me just like the mechanics got their salary, and they paid the others their salary. I got my $15 the same as they were paid, in a check; and they got theirs each week just as I got mine. I sold new or used cars. When I took in a trade-in, either a new or a used car, I was not permitted to pass on that myself, but that had to be arranged for the trade-in — had to be passed on by the sales manager, whoever he might be. In other words, I wouldn't have any right to close a trade until that was passed on by them. As a matter of fact, all those trades were actually concluded by the sales manager. I went to work in the morning at eight, and I was required to be there at that time. In the evening we don't have any set time to get off; we have to work until we get through, calling prospects, and they had no set hours. To take off a week I know I would have had to secure permission. I have taken off a couple of days at a time on my own hook, or for a week; tell them I would be gone or something, and I would have to get their consent. Naturally I would come to the sales meeting; that is what their meetings are for, is about the prospects. I had to keep a list of my prospects, and that list was also kept up there by the company. We have a file, and want to keep it straight. They were our prospects, and we could work them out as we pleased, but I had to work it every thirty days, or they were no longer my prospects, but were subject to be sold by any salesman. I had to see the number in thirty days and make regular reports. We have a card system, which was their property; and if I didn't work it once in thirty days, it would subject such of my prospects to any other salesman. It was open house after thirty days; any one could sell them. The sales manager there would direct me to call on certain prospects and certain people. We could either see them or forget it. The sales manager would give me certain instructions and directions to call on certain people and try to make sales, and I followed those instructions when they were given to me, and I carried them out in the way and manner I was directed to carry them out. Naturally I would, or I wouldn't be with them. At all times I followed the instructions and directions given me by the sales manager, to the best of my knowledge I did, and the rest of my work. If I hadn't I imagine I would certainly have been held to account for it; I don't know. Under my contract I had with them I understood that I was to follow the instructions of the sales manager. He was the one that hired me. I didn't pay any license as a salesman to the City of Rome or State and county. I have a social-security card, and this social-security card bears the date of 12-3-36, which means December 3d, 1936, as the date of issue, and at the time I was connected with G. L. Hight Motor Company. The social-security card bears the number 255-10-1961. I was not working for anybody else but G. L. Hight Motor Company. I was connected with them. That is the only source of income or employment that I had. The eighteen gallons of gasoline and oil used in the automobiles was used trying to effect sales for the G. L. Hight Motor Company. We had a limit of eighteen gallons for one week. They furnished all the oil. They didn't have any rule to regulate me in the amount of oil I used. Take this matter with Mr. Robert Hardin, I was trying to sell him a new car. This automobile I was driving on this occasion was not a new automobile. It was a 1935 coupe, a Chevrolet. The way we have, they would assign the automobile over to us, and this car was assigned over to me. It had been assigned to me around four or five days, maybe six this special car. I can't tell you who had it before me. This particular car had been in my possession all that day anyhow. I told them that at the time of the accident I was on my way to see Robert Hardin, after I stopped by the cafe to see my wife. I didn't say that at the time of the accident I was going to see Robert Hardin about selling him an automobile, probably after I left the cafe. I explained that I was going to see Mr. Hardin about an automobile. As a matter of fact I was, for the purpose of selling an automobile, going to see Mr. Hardin. Ever since I received my social-security card on or about December 3d, 1936, as to the one per cent. which is required under the law to be deducted from the payments that were made me by the G. L. Hight Motor Company, they were taking it out of my check at the end of the month as I drew it up. That happens just the same for any payment I might have received for February, 1939, and continuously right on up to the present time. You will notice that on that statement there, which I have seen. On the day in question I went to the place of business of G. L. Hight Motor Company, sometime about dark or late in the afternoon before this accident happened, and saw Mr. Golden Stephens, who is general manager of the business, and who told me that Mr. Robert Hardin had been there to see me, and that Mr. Hardin said to get in touch with him. I knew on that occasion what it was about, and also Mr. Stephens. He told me to go to see him. I did not leave there right immediately to go up the street; that was around six to six-fifteen that I came in, and I was told about Mr. Hardin being around there, and I knew I couldn't see Mr. Hardin until about seven-thirty or eight at Sterchi's. I couldn't say just how many different automobiles G. L. Hight Motor Company had turned over to me for use during the period of time I was there; we drive them from around three or four weeks until six months, something like that, and we are taken out of them and assigned other automobiles. Naturally it would be sales manager, who takes us out of them. Mr. Dewey Stephens is now the sales manager . . and the other is general manager. Naturally we could keep them as long as we wished, if they didn't need repair. I was on my own; in other words, if I wanted to take off a day I would take off a day after going to the sales meeting. If I was off a week without consent, they wouldn't pay me; probably if I didn't quit I could go and borrow it. I probably might have gotten permission to have gotten off. . . The commission on a new car is 8 per cent. on f. o. b. price on new, and 6 per cent. on trade-in, and 7 or 8 on used cars less the trade-in. . . After this thing happened I went to the home of the young man who was killed; I would say two weeks after; maybe longer than that. They called me up there, and I told them I had been in the wreck. I carried Mr. Hardin and Madden up there, and I didn't make any statement I don't think. I didn't walk in and tell them I wanted to let them know that at the time this thing took place I was driving the car on company business for the G. L. Hight Motor Company, I didn't make that statement in those people's presence there in their home. I was on business otherwise, to sell that automobile, I wasn't out then to."
R. R. Hardin testified: He was employed by Sterchi's company on Broad Street in Rome, Georgia, and he remembered when Jack Nichols was struck by an automobile. "At that time Mr. Johnson had been to see me in connection with selling me an automobile. This accident took place somewhere along about a quarter till seven. In connection with the sale of an automobile he told me he would probably see me that night. I had been talking with him two or three weeks as a salesman, and he was at the G. L. Hight Motor Company. There was no definite time set that he was to see me at that time; it was understood I would be at the store from seven till eight o'clock. I had been down to look the automobiles over. Mr. Stephens, I believe it was, showed them to me. I would say that Mr. Johnson had been to see me in connection with this sale off and on about five to ten times. I had seen him pretty often, and he would say something about it every time I saw him. . . Mr. Stephens knew I was dealing with Mr. Johnson about buying a car." The witness further testified that he knew Johnson was selling automobiles for the defendant motor company on commission; that he had been seeing Johnson about six years and knew he had been working for the motor company selling automobiles; and that on the day of the accident he visited the place of business of the motor company and "told Mr. Stephens to tell Mr. Johnson to come up to see me at the store that night." The employer of the plaintiff's son, and about whose business the plaintiff's son was engaged when he was killed, testified that after the accident he talked to Herman Johnson, and Johnson stated that at the time of the accident he was going to see Mr. Hardin at Sterchi's, for the purpose of making a sale of an automobile to him.
Golden Stephens testified, in part, as follows: "I am general manager of G. L. Hight Motor Company. On or about February 3d, of this year, Herman Johnson was connected with the G. L. Hight Motor Company as a commission salesman. Mr. Hardin came to the place of business of G. L. Hight Motor Company around between five and five-thirty on that night. He told me at that time he came in that Mr. Johnson was calling on him with the idea of selling him an automobile. When he came I told Mr. Johnson to go to see him, and he told me he would as soon as he got supper."
The plaintiff introduced in evidence a statement of the motor company, showing payments for a period of twelve months to Johnson, including the month during which the accident took place, and showing deductions of payments for social-security taxes to the Federal government in the sum of $9.51. There was testimony going to show that Johnson before going to Sterchi's to see Mr. Hardin had stopped at the Partridge Cafe, where his wife was employed, to eat supper. Sterchi's was located on the northwest corner of Fourth Avenue and Broad Street. The accident resulting in the death of the plaintiff's son occurred just north of Fourth Avenue towards Fifth Avenue on Broad Street. The Partridge Cafe was on Broad Street just north of Fifth Avenue towards Sixth Avenue. Under the ordinance of the City of Rome, if one is going north on Broad Street he can not make a U-turn to come down the other side of Broad Street until he comes to Sixth Avenue.
The court granted a nonsuit as to G. L. Hight Motor Company, and the plaintiff excepted.
It is contended that Johnson, an automobile salesman of G. L. Hight Motor Company, who was driving an automobile furnished to him by his employer at the time his alleged negligence caused the death of the plaintiff's son, was, under the doctrine of respondent superior, a servant of the motor company. Therefore it is contended that Johnson's employer is responsible for such negligence, in that Johnson at the time was in the performance of his duties as an employee of the motor company. It appears from the evidence that Johnson was employed as an automobile salesman by the motor company, and that company furnished him with an automobile for the purpose of performing his duties. The defendants contend, that Johnson was employed solely on a commission basis, and was not under the direction and control of the motor company in the performance of the duties of his employment, which constituted him, as a matter of law, an independent contractor, and not a servant; and that, even if Johnson was a servant and not an independent contractor in the operation of the automobile, the evidence was insufficient to show that he was engaged in the performance of his duties as a salesman of the motor company within the scope of his employment at the time of the alleged accident.
In order to hold an employer liable for injuries inflicted by an automobile while being operated by a salesman, the relation of master and servant must exist, and the servant must at the time have been acting within the scope of his employment in performing an act for the master's benefit. See annotations in 17 A.L.R. 621; 29 A.L.R. 470; 54 A.L.R. 627; 107 A.L.R. 419. It is necessary to determine whether the relationship between the motor company and Johnson was that of master and servant, or that of employer and independent contractor. It is true that the mode of payment for the services performed is an element to be considered in determining whether in a particular case the employee is an independent contractor or a servant, but it is by no means controlling of that question. The fact that a salesman's services are compensated for on a commission basis is not a decisive test by which to determine whether he is an independent contractor or a servant. See 61 A.L.R. 223. In Aisenberg v. C. F. Adams Co., 95 Conn. 419 ( 111 A. 591), it was said that where, under the contract of employment, the employer retains the right to control the manner, means, and method by which the employee performs the services, it is immaterial as to how payment for such services is made, whether in wages, salary, or commission, or by the piece or job. In Borah v. Zoellner Motor Co., (Mo.App.), 257 S.W. 145, the court, in holding that an automobile salesman was a servant for whose negligence in the performance of his work the employer was liable, said: "In the sale of automobiles he was clearly the agent of the defendant, and the manner in which he was paid for his services, to wit, by a commission on the amount of sales, could not alter his relation to the defendant." See also Dare v. Boss, 111 Ore. 190 ( 224 P. 646). In Hoffman v. Liberty Motors, 234 Mass. 437 (125 N.E.. 845), where one in "a general way" was employed by the defendant as a salesman and demonstrator of cars, being paid a commission for sales made by him, the court, after finding that the salesman did not act independently, but only in obedience to the orders of the general sales manager of the defendant, approved this statement: "The terms and mode of payment . . are not the decisive test;" the test being whether the employer retained authority to direct and control the work. In Long Ben v. Eastern Motor Co., 94 N. J. L. 34 ( 109 A. 286), in which it was held that it was open to the trial judge, sitting without a jury, to find that one authorized to demonstrate and sell an automobile for the defendant automobile company on a commission basis was a servant, the court said: "The driver was acting with the authority of the defendant and for its interest and benefit, and the fact that his compensation was by way of commissions on the sale, rather than by the day or week, is immaterial."
So, in determining whether one in performing certain services for another does so as an independent contractor or as a servant, the real test is whether the person alleged to be the master, under his arrangement with the other party, has or has not any authoritative control of the latter with respect to the manner in which the details of the work are to be performed; and therefore this test or element must, in the last analysis, always determine what was the essential nature of the relationship between the person who performed the given work and the person for whom it was performed. As some evidence of the nature of the relationship existing between the motor company and Johnson, we may refer to the fact that Johnson received no definite compensation; but more important than this consideration is the question, does the evidence show that Johnson was perfectly free to prosecute the work, for which he was engaged under his contract of employment with the company, in any manner he saw fit, using such means or methods as to his judgment might seem the most effective for accomplishing the sale of automobiles for the company? Ordinarily this is a question of fact to be determined from an examination of the facts in each particular instance, including the contract of employment under which the employee is employed.
The evidence of the plaintiff showed these facts: Johnson, the driver of the automobile, the alleged negligent operation of which caused the death of the plaintiff's son, was at the time employed as a salesman of the motor company, an automobile sales agency. The automobile which was being driven by its salesman at the time of the accident belonged to the company. Johnson was employed by the company under an oral agreement to sell automobiles, and the company permitted him to have automobiles belonging to it, not only for demonstration purposes, but for "any other purpose in connection with" the sales work. He was paid a commission on the automobiles sold by him. In the sale of an automobile, whenever it became necessary to accept an automobile from the buyer as a "trade-in," the salesman was not permitted to pass on the matter, but this was done by the sales manager. No trade was closed until passed on by the manager, and all of the sales were concluded by him. Johnson was required to be at work at 8 a. m., although he had no required time to stop work for the day, and had no set hours to call on prospects. If Johnson wished to take time off from his employment, such as a week or several days, he was required to obtain the consent of his employer. He was required to attend sales meetings, and to keep a list of his prospects; and a copy of this list was retained by the company at the office. Johnson could work his prospects as he pleased, except that he was required to work the list over every thirty days, or they would become prospects to be sold by any salesman of the company. He was required to call on all of his list during that time, and to make regular reports thereof. The sales manager would give Johnson instructions and directions to call on certain people and endeavor to sell automobiles to them. He followed these instructions as best he could. He was required to, and did, to the best of his knowledge, at all times follow the instructions and directions given to him by the sales manager. The sales manager hired Johnson. Johnson did not pay a state, county, or city license as a salesman. Each week the company furnished a limited amount of gasoline to him for use in his work, but there was no limit on the amount of oil furnished to him by the company. Johnson had been so employed by the motor company for five years. The company deducted the one per cent. from compensation paid Johnson, as required under the Federal social-security act, and Johnson had a social-security card and serial number.
Do these facts show that the company actually exercised no authoritative control over the sales of automobiles for it by Johnson, and that he was perfectly free, under his employment by the company, to choose his own time, place, and manner of seeking and procuring customers and selling to them automobiles of the motor company? In Curran v. Anthony, 77 Cal.App. 462 ( 247 P. 236), where, although a salesman's compensation was limited to a percentage of the price of cars sold by him, it appeared that it was his duty, in addition to that of soliciting business, to demonstrate cars to prospective buyers, and that although allowed a wide discretion as to his movements and time while so engaged, unless otherwise specially permitted, the use of cars for such demonstration purposes was limited to fixed hours each day, and that on the day of the accident occasioned by the salesman's negligence in demonstrating a car he was engaged in the business of appraising used cars and trade-ins, the court held that the evidence reasonably imported the inference that the salesman was, during working hours, as to his duties and the mode of their performance, subject to the direction and control of the employer, and was thus a servant, and not an independent contractor. In Frostom v. Grossman, 161 Minn. 440 ( 201 N.W. 929), the court held that the jury were justified in finding that an automobile salesman was an agent or servant of the defendant, for whom he sold cars on a commission basis, upon evidence that he was employed to sell new and old cars; that he might make sales in or out of the defendant's place of business; that he sought customers wherever he chose to go, without special directions from the defendant; that he made the defendant's place of business his headquarters; that if a "prospect" asked for a demonstration of a particular car, the salesman was permitted to give it to him; and that when the salesman took a car out for a demonstration he was not directed to follow any particular route, his general instructions being to come back as soon as possible and to use the car as little as possible. In Borah v. Zoellner Motor Co., supra, the court said that an automobile salesman, though compensated solely by the payment of a commission on his sales, where employed under a contract of employment under which the employer retained and had the right to control such salesman in the manner in which he performed his work, was deemed an agent or servant for whose negligence his employer was responsible, in the operation of an automobile furnished him by the employer for interviewing prospects, inasmuch as he was not an individual dealer nor a dealer at all, as he did not buy or resell or have the power of fixing prices, or of dictating terms, or of extending credit, or of becoming personally responsible to his employer for the payment of any bills; his only power beginning and ending with the one thing of making sales of machines belonging to his employer.
In Fearn v. Ralph Hamlin, 215 Cal. 211 ( 8 P.2d 1015), the court held that the evidence established as a matter of law all of the elements necessary to charge the defendant company with liability for the negligence of the driver of its car at the time the plaintiff's son was injured, under the doctrine of respondent superior, where it appeared that the company was a distributor of automobiles, that the driver of the car was a commission salesman for the company, who received no salary, had no regular hours, and did not confine his efforts solely to the sale of cars, but, when he found a prospective buyer, was permitted to take one of the company's cars for demonstration purposes, and was required to return the car immediately after the completion of a demonstration; and that on the day of the accident he had found a prospective buyer, secured permission of the company's sales manager to demonstrate a car, and was on his way to the home of the prospect when an accident occurred, resulting in the injury to the plaintiff's son. The court stated that the company retained the right to direct and control the driver's use of its cars, and say for what purpose and under what conditions they should be driven, and to terminate his services and retake possession of any car at once, should disobedience to instructions or misconduct on his part induce such a course, and that these facts brought the case well within the rules determining the existence of the relationship of master and servant. In Ryan v. Farrell, 208 Cal. 200 ( 280 P. 945), an action to recover against an employer for an injury sustained from negligent operation of the employer's car by a salesman, it was held that the jury might conclude that the employer possessed the right to exercise that degree and kind of control over the salesman which distinguishes an employer from one for whom another person is rendering services as an independent contractor, where there was evidence that the defendant maintained an automobile sales agency and employed as a salesman on a commission basis the person who was driving the car when the accident occurred; that such person was employed for no definite length of time; that the defendant had the right to discharge him; and that he was required to report at the defendant's office each morning for a sales meeting. The accident involved in that case occurred when the salesman was returning to his residence from the place where he had gone for the purpose of interviewing a prospective purchaser of an automobile. In Jones v. Shehee Ford Wagon c. Co. (La.App.), 157 So. 309, the court held that where the evidence showed that the driver was employed by the defendant as a salesman and was driving the employer's automobile, using gasoline and oil furnished by the employer, and that the employer had the right under the contract of employment to direct the salesman's actions, although it did not exercise that right to any great extent, the jury was authorized to find that such driver was a servant, and not an independent contractor. The court stated that the test was, not that the defendant did not exercise the right of control or direction, but that it had the right to do so under the contract of employment.
In Mitchem v. Shearman Concrete Pipe Co., 45 Ga. App. 809 ( 165 S.E. 889), applying the principles underlying the foregoing decisions, in a case where it appears a person was employed to travel over a territory designated by the employer at a fixed salary per month, with traveling and hotel expenses paid by the employer, to solicit orders from prospective purchasers selected and ascertained by the salesman at prices and on terms fixed by the employer, and made periodic reports to the employer of the business done, although such person might select and furnish his own means of travel and his own customers, and was "turned loose to get business," it not appearing that the employer had relinquished its right to supervise and control the manner, method, and means of the performance of the work, this court held that such person was a servant and not an independent contractor, and laid down this doctrine: "Where one is employed generally to perform certain services for another, and there is no specific contract to do a certain piece of work according to specifications for a stipulated sum, it is inferable that the employer has retained the right to control the manner, method, and means of the performance of the contract, and that the employee is not an independent contractor." The decision in Whitehall Chevrolet Co. v. Anderson, 53 Ga. App. 406 ( 186 S.E. 135), relied on by the defendants, is not in conflict with the above view. In that case the salesman was driving a prospect home after having demonstrated a car to her. He was employed on a commission basis; he operated "his own automobile to assist him in carrying on his employment;" and his movements were "in no way controlled by his employer, the automobile company" (italics ours), except that he was not permitted to solicit the sale of automobiles outside of the territory in which the company was allowed to sell automobiles. Under those facts this court held that such salesman was, "with respect to the operation of his car, an independent contractor; so that his employer is not answerable in damages for an injury caused by his negligent operation of the car." There the test was that the salesman was not controlled by his employer in the performance of his work. Simril v. Davis, 42 Ga. App. 277 ( 155 S.E. 790), cited in Whitehall Chevrolet Co. v. Anderson, supra, is likewise distinguishable. In that case the owner of the car parted with possession and entire control thereof. It did not appear, as in the case at bar, that the owner of the car was an automobile sales agency, that the person to whom the automobile was delivered was an automobile salesman regularly employed and working under the direction and control of an automobile dealer who owned the car and assigned it to him to perform his work, and that such person was a salesman about the business of his employer at the time he negligently operated the automobile and brought about the injuries sued for. It was held that where the owner of an automobile delivered it to another person for the purpose of sale by such person to any purchaser whom he might procure, and the entire control of the automobile was surrendered to such person, he was not the servant of the owner, but an independent contractor.
In the case at bar, the inference is reasonable that, subject to the freedom of action inherent in the nature of the work of the automobile salesman in general, it was understood that the right to direct the manner in which the sale of automobiles should be done was reserved by the defendant company. The company fixed the price of the automobiles, and the trade and the sale had to be approved and was concluded by its general sales manager. The company had the right to direct the salesman to call upon any prospect. On the occasion of the death of the plaintiff's son, Johnson was acting under specific directions and instructions of the sales manager to call upon a particular prospect. Johnson was required to report to the company office and to attend all sales meetings. He could be discharged by the company for disobedience to instructions, and he had no definite term of employment. The company furnished the gasoline and oil to use in the automobile furnished to Johnson for the performance of his duties. These and other facts referred to clearly would have permitted the jury to find that Johnson, in his employment as a salesman of the motor company, was a servant and not an independent contractor, and that in the operation of the automobile of the motor company for use in calling on prospects in connection with the sale of automobiles he was a servant, subject to the control and direction of the company. Certainly, under the facts Johnson was not, as a matter of law, an independent contractor.
This brings us to consider the second phase of this case. Was Johnson acting within the scope of his employment at the time of the accident which resulted in the death of the plaintiff's son? From the testimony of Johnson it appeared that on the occasion of the accident he was using an automobile which had been furnished to him by the company for use in connection with the sale by him of automobiles for the company; that at the time he was going to call on a prospect to whom he was trying to sell a new automobile; that this prospect had previously been in contact with him with reference to purchasing an automobile, and had gone by the company office and informed the manager that he wished to see Johnson; that the manager so informed Johnson, and directed him to call on this prospect; that this was about 6 p. m.; that Johnson would be unable to see this prospect before 7:30 that evening; that Johnson went first by a cafe where his wife worked, and ate supper, and was on his way from that place to call on this prospect when the accident occurred; and that on the day of the accident this prospect had visited the office of the company and had told the manager to have Johnson "come up to see me at the store that night." The manager of the company testified, that this prospect came by the company office about five o'clock the evening of the accident, and stated that Johnson had been calling on him with the idea of selling an automobile to him; that when Johnson later came to the office the witness directed him to call on this prospect; and that Johnson stated that "he would as soon as he got supper." There was evidence to the effect that the place where the accident occurred, at about 7 p. m., was along a route which Johnson would necessarily travel from the cafe, where he had eaten supper, to the place where the prospect was.
The evidence authorized a finding that at the time of the accident Johnson was engaged within the scope of his employment, and was about the performance of his duties as a salesman of automobiles for the motor company. In fact, there was evidence that at the time of the accident Johnson was complying with directions from the sales manager of the defendant automobile dealer, to call upon this prospect for the purpose of selling him an automobile.
The fact that the accident occurred at night, after the salesman had eaten his supper and after the close of the regular hours of business, does not relieve the company, under the facts of this case, from responsibility, if the salesman was negligent and his negligence proximately caused the death of the plaintiff's son. However, the defendants concede that the evidence for the plaintiff made a prima facie case, except as to the relationship between Johnson and the motor company, and except as to Johnson acting within the scope of his employment and performance of his duties as a salesman at the time of the accident. See Mitchem v. Shearman Concrete Pipe Co., supra, and cit.; Dishman v. Whitney, 121 Wn. 157 ( 209 P. 12, 29 A.L.R. 460); Ford v. Reinoehl, 120 Pa. Super. 285 ( 182 A. 120). In Ryan v. Farrell, supra, it appeared that the automobile salesman was returning to his home from a place where he had been to visit a prospective customer; and the court held that the evidence showed that the salesman was acting within the course of his employment when the automobile he was driving was negligently operated by him and resulted in the plaintiff's injuries. See cases cited in 17 A.L.R. 621; 29 A.L.R. 470; 54 A.L.R. 630; 107 A.L.R. 432.
It necessarily follows, from what is said above, that a prima facie case was proved by the plaintiff. It was error to grant a nonsuit as to the motor company.
Judgment reversed. Sutton, J., concurs. Felton, J., concurs specially.