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District Court of Appeal, Fourth District, California.


Civ. 2968.

Decided: October 01, 1942

Dorothy Thompson and Raymond Thompson, both of Fullerton, for plaintiffs and appellants. J. E. Walker and Geo. E. Bradley, both of Santa Ana, for defendants and appellants. Blodget & Tobias, of Santa Ana, for respondent.

On January 1, 1941, at about 2:30 o'clock in the morning, Wade Earl Burlingham, husband of plaintiff Winifred E. Burlingham, and son of the other plaintiffs, was driving his motorcycle in a northerly direction on Highway 101 near Anaheim. As a result of a collision with an automobile driven by defendant John W. Gray, a minor, Wade Earl Burlingham was killed. Defendants Lewis R. Gray and Alice D. Gray became liable by reason of the fact that they signed the application for the minor's operating license.

The main point presented on the perfected appeal before us relates to the question of employment relationship. Evidence concerning the cause of the accident has been deleted from the transcript by stipulation. At the time of the fatal accident, defendant John W. Gray was delivering “The News,” a paper published by the respondent Stockholders Publishing Company, a corporation. Defendant Stanley C. Porter was a general distributor of “The News” in certain portions of Orange County. His employment was predicated on a written agreement. After the trial the jury found a verdict in favor of plaintiffs and against the defendants John W. Gray, Alice D. Gray and Stanley C. Porter. The trial court, however, directed a verdict in favor of the defendant Stockholders Publishing Company, owner of the newspaper. Plaintiffs appealed from the judgment upon the verdict directed against them and in favor of the defendant and respondent Stockholders Publishing Company. The main issue here presented is whether the court erred in so instructing the jury.

The defendants John W. Gray, Lewis R. Gray, Alice D. Gray and Stanley C. Porter filed separate notices of appeal from the judgment against them. They have failed to properly perfect their appeals. After due notice they have failed to pay the required filing fee in this court and have not filed any briefs or points and authorities herein. Their attempted appeals from the judgment against them should be dismissed. Rule 5 of the Rules for the Supreme Court and District Courts of Appeal.

The written agreement between the respondent Stockholders Publishing Company and the dealer, Porter, in reference to their relationship, indicates that the relationship thereby created was one of independent contractor rather than that of employer and employee. Appellants recognize this fact. In their brief they state their position and recite that “the written contract between Porter and the publishing company is drawn with the evident purpose of creating the appearance of an independent contractor relationship, and, taken by itself, with nothing to explain or modify it, it would probably be successful in creating such relationship. There are certain differences between the written contract in the instant case and the written contracts involved in the cases of Bohanon v. James McClatchy Publishing Co., 16 Cal.App.2d 188, 60 P.2d 510, and Batt v. San Diego Sun Publishing Co., Ltd., 21 Cal.App.2d 429, 69 P.2d 216. However, for the purpose of argument, we will assume that were we bound by the written contract alone, the instant case could not be distinguished from the cited cases. In both of the above cited cases, the appellate court was confined to a consideration of the written contract alone in determining the employment relationship. There is no discussion of any evidence which might have altered the written contract. We submit that in the instant case there is abundant evidence which explains and modifies the written contract to such an extent that the legal effect is entirely changed.” Citing Luckie v. Diamond Coal Co., 41 Cal.App. 468, 478, 183 P. 178.

The written contract provides generally that the dealer (Porter) agrees “to use his earnest and conscientious effort to promote the circulation of ‘The News' * * * by frequent and thorough canvasses among the inhabitants of his district, and by frequent distribution and display of such advertising matter concerning ‘The News' * * * as may from time to time be sent to the dealer by the Company * * * To sell * * * to regular subscribers and to transient buyers of his district at prices fixed by the company, the dealer's profits to consist of the difference between the retail price of said newspapers fixed by the company and the wholesale price thereof, also fixed by the company. * * * To sell copies * * * to sub–news dealers, * * * To pay promptly all bills for supplies, prizes or other merchandise, commonly used in connection with circulation methods, furnished by the company to him. * * * To act as dealer in said city * * * and to be responsible for his own acts and of his substitutes and subordinates during the life of this agreement. The dealer hereby declares that he is engaged in an independent business, and that he personally hires and pays all persons assisting him in the distribution of said newspapers and in the collection of all money therefor in the district aforesaid, and has sole and exclusive control over his said employees. The Dealer hereby agrees that the company shall not in any event be liable for any loss, damage or injury to the person or property of the Dealer, or to the person or property of any of his employees or to the person or property of any of the public, * * * To furnish the Dealer with copies of ‘The News' * * * at prevailing wholesale prices fixed by the company * * * that the company may, without notice and when necessary, suspend this agreement in case of * * * change in the retail or wholesale prices * * * the Dealer is incapable or unsatisfactory in any manner or is responsible through neglect or inattention to business for causing the company's circulation in said district to decrease.” (Italics ours.)

The trial court's construction of this written agreement that it, considered alone in and of itself, created only a relationship of independent contractor must be sustained. Batt v. San Diego Sun Publishing Co., Ltd., supra; Bohanon v. James McClatchy Publishing Co., supra.

We will therefore set forth the additional evidence offered which appellants claim changed this construction of the relationship to that of employer and employee as between respondent publishing company and John W. Gray and Porter. Admittedly, John W. Gray was hired by the dealer, Porter, and paid $50 per month for his services and use of Gray's automobile in delivering “The News” in a certain territory prescribed by Porter. Just before the accident in question Gray had left several of such papers with a customer of Porter's at Anaheim. The evidence is clear that Porter, in connection with the distribution of the papers in the district assigned to him, prescribed the duties of and had control over all of his assistants and carriers, who numbered about fifteen.

Called under section 2055 of the Code of Civil Procedure, the dealer Porter testified that in 1936 the circulation manager for “The News” contacted him in reference to being a dealer for that paper in that territory; that the circulation manager told him that he would be responsible for Santa Ana and the growth of the circulation in that territory; that the circulation in that territory should later increase; that the circulation manager instructed him that the papers “should be delivered by six o'clock in the evening and the best service possible”; that the road man for “The News” only saw him three or four times a year; that the only time he saw the circulation manager was when he would go to Los Angeles, which would be about every two or three months; that the only thing the road man would ask of him would be if he had “any idea as to building up the circulation and how we are getting along”; that at times he (the road man) had contests in circular forms and that he either mailed them to him or “brings them down personally and tells me to have the boys work on contests such as Catalina trips and trips to get subscriptions,” that is “if a carrier––for instance––receives ten subscriptions he gets (from the News) one day out at Catalina, including his meals and the round trip”; that the carrier turned the orders in to him and he sent them in to Los Angeles and they in turn issued tickets for the trip or whatever contest they were putting on; that as to carrying out these suggestions he just assumed he was supposed to do it; that another method to gain circulation employed by “The News” was to furnish metal stands or racks which he (Porter) put on street corners; that his compensation as a dealer consisted of the profit between the price he paid for “The News” and the resale price to the carriers; that he received extra compensation from “The News” ($2.00 per week) for picking up a bundle at Anaheim and taking it to the Orange agent, re–spotting it for the Orange agent; that a representative of “The News” suggested that he (Porter) attend a meeting in Los Angeles in reference to the sale of an insurance policy along with “The News” and that his cooperation would be appreciated; that “The News” took out hospitalization, accident and health insurance on its employees, which insurance he (Porter) also carried.

The record indicates that on the particular night in question John W. Gray was transporting, together with several bundles of “The News” destined for two other stations, one bundle of papers that was ordinarily sent from Anaheim to the agent at Orange. After the accident Porter completed the delivery of this bundle himself. This was the bundle of papers for the delivery of which Porter was paid the extra compensation of $2.00 per week, less social security deductions. The evidence also shows that the respondent publishing company knew that Porter did employ several assistants in the performance of his duties.

There was nothing in the evidence that indicated that Porter was directed to deliver such a bundle to the Orange agent in any particular manner or by any particular person or conveyance. There is evidence, however, that the respondent publishing company, when Porter took his two weeks' vacation, paid one of its employees to take Porter's place in the office in Anaheim. Porter's compensation check of $2.00 per week plus such profits as became due under his contract, was still paid to Porter during such vacation period. This is about the substance of the oral testimony presented to sustain appellants' contention. However, there was an attempt to produce some further evidence which was disallowed.

While Porter was on the witness stand he was shown what counsel for appellants claimed to be a copy of a certain contract between the Los Angeles Newspaper Guild and “The News,” of Los Angeles. He was asked if he knew where the original contract was. He answered that it was “in Los Angeles office.” This answer was subsequently stricken when it was shown that the witness had never seen it. Counsel for appellants then, addressing the court, said: “I would like to have it produced as soon as possible.” Counsel for respondent remarked: “There is no order to produce. I am here in court, and I have no such contract, if there is one in existence.” The court replied that “I assume you would have to have had issued a notice to produce or a subpoena duces tecum on the company.” Counsel for appellants then stated to the court: “I am making that notice now, if the court please.” The court replied: “It is too late now.” No other demand or offer of proof was made and no foundation laid for the admission of the copy into evidence. Appellants' counsel now claims that the original of the instrument offered contains certain statements which are “very illuminating and interesting reading” and “shows very strongly the true relationship” of employer and employee existing between the publishing company and Porter, and that the trial court erred in refusing to compel the production of the original contract. The witness under examination had no custody of nor control over the named agreement. It becomes immediately apparent that the necessary foundation was not laid for the production of the original or the admission of a copy in evidence. § 1000, Code Civ.Proc.; 10 Cal.Jur. §§ 156 and 157, pp. 879, 880 and 881. Appellants admit that they were unsuccessful in finding a case supporting their contention.

The case of Burke v. Table Mountain Water Co. et al., 12 Cal. 403, holds that the sufficiency of notice to produce a paper shown to be in the possession of a party is a question of discretion. No abuse of discretion appears.

Of course it is a recognized rule of law that strangers to a contract are at liberty to show that the written instrument does not disclose the full or true character of the relationship between the contracting parties and that in an action of this character, while prima facie, the relation of the parties to a written contract of employment is that which is expressed by the terms of the writing, nevertheless, in order to determine their true relation, such contract should be considered in view not only of the circumstances under which it was made but of the conduct of the parties while the work is being performed. Luckie v. Diamond Coal Company, supra.

It was also declared in Robinson v. George, 16 Cal.2d 238, 105 P.2d 914, in passing upon a judgment of nonsuit, that the fact that one is performing work and labor for another is prima facie evidence of employment and such person is presumed to be a servant in the absence of evidence to the contrary. It was there also held that after the plaintiff established a prima facie case the burden shifted to the defendant corporation to prove that the other defendant was an independent contractor.

The doctrine of respondeat superior applies only when the relation of master and servant is shown to exist between the wrongdoer and the person sought to be charged with the result of the wrong, at the time and in respect to the very transaction out of which the injury arises. Luckie v. Diamond Coal Company, supra.

Where a plaintiff seeks to recover against a defendant upon the theory of respondeat superior the burden of proving the relation of master and servant or employer and employee is upon the plaintiff. Preo v. Roed, 99 Cal.App. 372, 278 P. 928. In arriving at a determination as to whether one person is an employee of another or whether the status of the former is that of an independent contractor, one of the best tests to be applied to the factual situation which is presented is the right of control, and when the essential object of the parties is the performance of certain work, the relation of master and servant does not exist unless the employer reserves the right to direct the mode and manner in which the work shall be done. Winther v. Industrial Acc. Comm., 16 Cal.App.2d 131, 60 P.2d 342. Under this rule, it becomes apparent that without evidence of the existence of some other intermediate agency the relationship of employer and employee between Gray and respondent publishing company would not be established from the evidence produced. It would be lacking in the essential elements above mentioned. The only theory upon which the respondent publishing company could be made liable in the instant action would be upon the theory that Porter was the publishing company's agent or employee authorized to employ a sub–agent under sections 2349, 2350 and 2351 of the Civil Code. To establish such a relationship as between them it would be necessary to establish first that the defendant Porter was such an employee of his master, the publishing company, and that as such servant he had an assistant or assistants who were engaged in the rendition of services which he or they had been accustomed to perform at the servant's request for considerable periods of time, which would give riśe to the view that the servant enjoyed an implied authority from the master to engage him or them in such service. The authorities are not in strict harmony as to the master's liability to third persons for the negligent acts of an unauthorized stranger procured by an employee to assist him in the scope of his employment, and the master is not liable when the services of a stranger are performed out of the presence and independent of the employee or when the services are not within the scope of the servant's employment or when the assistance is secured contrary to the direct instructions of the master. Some cases hold that the master is liable for such negligence only when there is either express or implied authority for the agent to procure assistance and the liability of the master has sometimes been denied upon the specific ground that the servant was not present at the time of the performance of the tortious acts complained of. Cragun v. Krossoff, 45 Cal.App.2d 480, 114 P.2d 431; Gates v. Daley, 54 Cal.App. 654, 202 P. 467; Gibbons v. Naritoka, 102 Cal.App. 669, 283 P. 845.

It therefore becomes important to determine from all the evidence whether at the very time of the accident Porter was a servant or employee of the publishing company insofar as the delivery of the bundle of papers was concerned. If in this respect he was an independent contractor, the judgment in favor of the publishing company must be sustained as the acts of Gray, as his employee, would not be imputed to respondent publishing company. On the other hand, if Porter, at the particular time in question, was an employee or servant of the publishing company in reference to the delivery of the bundle of papers, we must then inquire whether he might be brought under the rule that a master is responsible to third persons for the damage caused by the wrongful acts or omission of his servants in the course of their employment, and this liability extended to the acts of an assistant of a regularly employed servant when the acts were done in the presence of the servant and by his direction or with his acquiescence, although the person doing the act was not a servant of the master and although the master had not authorized the servant to employ an assistant. 16 Cal.Jur., § 61, p. 1098.

The term “employee,” as here applied, has been held to be synonymous with the word “servant.” Press Publishing Co. v. Industrial Acc. Comm., 190 Cal. 114, 122, 210 P. 820. Section 3000 of the Labor Code, St.1937, p. 261, formerly section 2009 of the Civil Code, defines a servant as “one who is employed to render personal service to his employer, other than in the pursuit of an independent calling, and who in such service remains entirely under the control and direction of the employer, who is called his master.” The carrying of the extra bundle of papers by Gray was only incidental to his main or primary employment in performing his duties for his employer, Porter, who was an independent contractor. No authority was conferred by respondent publishing company upon Porter to employ a sub–agent. In fact the written agreement between them negatives any such authorization. Under these circumstances, it cannot be said that Gray was an employee or servant of the publishing company for the incidental service thus performed in carrying the extra bundle of papers. Press Publishing Co. v. Industrial Acc. Comm., supra.

Generally speaking, it is the province of the jury to pass upon the facts on the strength of which the relationship of master and servant is claimed to exist. However, if the evidence shows without conflict that the relationship did not exist, a contrary determination on this question is not conclusive upon an appellate court. Hedge v. Williams, 131 Cal. 455, 63 P. 721, 64 P. 106, 82 Am.St.Rep. 366. Notwithstanding the fact that one person performing work and labor for another may be prima facie evidence of employment and supports the presumption that such person is the servant of the other in the absence of evidence to the contrary, yet if the facts are admitted or are susceptible of only one meaning, it becomes the duty of the court to declare the law upon those facts. Gousse v. Lowe, 41 Cal.App. 715, 183 P. 295; Adams v. Wiesendanger, 27 Cal.App. 590, 150 P. 1016. A directed verdict is proper, unless there be substantial evidence tending to prove in favor of plaintiff all the controverted facts necessary to establish his case. Perumean v. Wills, 8 Cal.2d 578, 67 P.2d 96. Where no other reasonable conclusion is deducible from the evidence, and if a verdict based thereon in favor of the plaintiff would of necessity have to be set aside by a reviewing court because of the absence of substantial evidence to support the same, the court is authorized to direct a verdict in favor of the defendant. Columbia Casualty Co. v. Lewis, 14 Cal.App.2d 64, 57 P.2d 1010.

In reviewing the propriety of the trial court's action in directing the verdict, the doctrine of scintilla of evidence has been rejected in this state. Walters v. Bank of America, etc., Ass'n, 9 Cal.2d 46, 69 P.2d 839, 110 A.L.R. 1259. With these rules in mind, we will review the evidence on this question. The oral agreement, as shown by the testimony, and there is no conflict in that testimony, was that Porter agreed to see that a bundle of papers was delivered from Anaheim to Orange every morning. For the performance of this service he was to be paid $2 per week. He could send it by express train, truck or airplane. He could deliver it personally or he could employ someone else to deliver it for him. Porter was not required to render personal service in this respect. He had the power and right to employ someone else to do the actual work and to do it in any manner that he saw fit. It cannot therefore be said, under the evidence, that he falls within the relationship of master and servant.

In the case of Preo v. Roed, supra, the court commented upon a similar arrangement in the following words [99 Cal.App. 372, 278 P. 930]:

“Here, as in that case, the manager of the corporation directed the person employed in the matter of the material to be hauled; there was no arrangement whereby the person employed was to personally drive his truck or vehicle; he could place any competent man in charge, and here defendant Roed did in fact employ his brother, who was driving the truck at the time of the accident. Each month Roed received a check from the corporation representing the aggregate amount the various dairymen should pay to him for delivering the milk to the corporation. * * *”

In that case the court found that Roed was not an employee but was an independent contractor, and said:

“Defendant Roed did not take orders from anyone as to the manner of doing the work, or how he was to haul the milk, whether by team or automobile truck, or who was to operate or drive the truck or vehicle. He was responsible only for gathering up the milk, transporting it safely and delivering it at the depot of the corporation within the hours agreed upon by the dairymen and the corporation, and was therefore not the servant of the corporation.”

It has been held that mere payment of wages or salary, of itself, is insufficient to establish that the recipient thereof is the servant of the one paying the same. Independence Indemnity Co. v. Industrial Acc. Comm., 203 Cal. 51, 262 P. 757. It was similarly held that the procuring of the issuance of a blanket policy of life insurance for the benefit of employees who contributed to the payment of premiums even where the carrier was included therein and described as an “employee” did not necessarily establish the relationship of employer and employee. Rathbun v. Payne, 21 Cal.App.2d 49, 68 P.2d 291; Bohanon v. James McClatchy Publishing Co., supra. The relationship must be determined from the whole situation and not from isolated facts considered as constituting the whole. Westcott v. Gilman, 170 Cal. 562, 150 P. 777, Ann.Cas.1916E, 437. When the facts which make up the relation between the parties here are considered, although it may be argued that the respondent publishing company may have exercised some limited control over Porter as an employee––in respect to the extra bundle of papers handled by him, nevertheless, as was said in Bohanon v. James McClatchy Publishing Co., supra, it is manifest that the right of control which the publishing company reserved related “not to the means to be used but to the result to be accomplished.” It would therefore appear that a material element of the relationship of master and servant was wanting. Winther v. Industrial Acc. Comm., supra; Western Indemnity Co. v. Pillsbury, 172 Cal. 807, 159 P. 721; Mountain Meadow Creameries v. Industrial Acc. Comm., 25 Cal.App.2d 123, 76 P.2d 724; Fidelity & Casualty Co. v. Industrial Acc. Comm., 191 Cal. 404, 216 P. 578, 43 A.L.R. 1304.

Under the evidence the question of the relationship of master and servant as between Gray and respondent publishing company was one of law, and as it would not support a judgment in favor of appellants and against the defendant publishing company the court did not err in directing a verdict in its favor.

The judgment is affirmed. The attempted appeals by other defendants are dismissed.

GRIFFIN, Justice.

BARNARD, P. J., and MARKS, J., concurred.

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