Ignatowitch v. McLaughlin , 66 N.D. 132 ( 1935 )

In a petition for rehearing objection is made to the emphasized part of the sentence on the first page of the opinion as follows:"It is the contention of the respondent that, on the evening ofthe accident, the defendant McLaughlin made a trip to Gladstone,North Dakota for the purpose of renting an apartment from oneJohn Loh and that he was engaged in the course of his employment and acting as the agent of the other defendants at the time of the accident." The italicized portion of the sentence is inaccurate. It is not the contention of the respondent that the defendant McLaughlin made the trip to Gladstone for the purpose of renting an apartment. It is his contention that he went there on the night of the accident to sell Loh a gas range, but this contention is not borne out by the record. The whole sentence does give the contention of the respondent and follows with a statement of the evidence upon which the respondent bases his claim, viz.: that at the time of the accident McLaughlin had a desk in the office of the Montana-Dakota Power Company at Dickinson; that he usually drove his car in the morning and used it without objection in the city of Dickinson when seeing customers; that on the evening of the accident he made a trip to Gladstone to see one John Loh about renting an apartment in Dickinson and while there he asked Mr. Loh if he was going to furnish a range for the apartment; that he had been to see Mr. Loh on the Sunday previous and a range was also mentioned at that time and he came back again after the accident and again mentioned the range. Clearly there is nothing prejudicial in this statement and whether it is the contention of the respondent or not it is borne out by the testimony.

The testimony relating to the gas range was brought out by plaintiff's counsel asking Mrs. Loh leading questions about the range on the evening of the 20th, and on cross examination Mrs. Loh testified as follows: "There wasn't much said the first time he came down there. We said it was all right he could have the house. We said we would like to clean up the house a little bit. We said we wanted to paint the bathroom and kitchen just as soon as Dommes move out.

"Q. Where were you when this conversation was held? . . .

"A. In Gladstone. . . .

"Q. Who was there?

"A. My daughter and my husband and Reuters. . . . That was on the 20th of July.

"Q. He was talking about renting the house?

"A. Yes.

"Q. He wanted to know if Domme was going to move out?

"A. Yes.

"Q. And he said if he was he wanted to rent it?

"A. Yes.

"Q. Now, what else was said at that time, that night of the 20th of July?

"A. Well, he wanted to know if there is a stove, if we furnished a stove. . . . Then I said I hate to furnish a stove, they cost so much when you buy them and you lose so much money when you sell them.

"Q. You wouldn't get as much out of the old stove?

"A. Yes. . . . He wanted to know if I furnish the bedclothing and dishes.

"I said ``No, everything else was furnished.' Most of the talking was done by my husband and Mr. McLaughlin. Mr. McLaughlin said he would like to know what was going to be left in the house in the way of furnishings and my husband said ``Everything except silverware, linen, bedding and a range.' My husband said ``Will you be willing to take your turn looking after the furnace there?' Mr. McLaughlin said he would. He wasn't there very long that night. We had some company. Mr. McLaughlin said he would be willing to take a turn looking after the furnace and my husband said, ``I might make a change, perhaps I'll put in a thermostat. That would make it easier for you people there.' He asked Mr. McLaughlin what the price of a thermostat was and Mr. McLaughlin said ``I did not come here to sell you anything. I do not want you to feel that way, that I came down to sell you some stuff. I do not know what the price is. We will talk about that later on.' He said ``I am leaving Saturday for my wife and children.'"

The testimony is not disputed, but is corroborated by Mr. McLaughlin, and the contention of the respondent that McLaughlin did not go to Gladstone on the evening of the 20th of July to rent an apartment is not supported by the testimony. The deal was not completed on Sunday, the 15th of July, and all of the testimony relating to the furnishing of the apartment was a part of the deal between the landlord and tenant.

The claim is also made in said petition that the testimony of Mr. Christopher, manager at Dickinson, and Mr. Trimble, general manager for the district, is in effect that Mr. McLaughlin is accountable like any other employee to Mr. Christopher, as the manager of that office.

Mr. Christopher testified that the sales manager sends out certain material with reference to the sales department, such as the price fixed for the articles to be sold, etc. "I am the manager of what we call the Dickinson district. Mr. McLaughlin is in Dickinson itself. Mr. McLaughlin works under the sales manager. I have in mind this general price list and that constitutes the main instructions.

"Q. And what hours did he (McLaughlin) work in the office, or didn't he have any hours?

"A. He didn't have any.

"Q. He didn't have any hours?

"A. No.

. . .

"Q. You mean that he could do just as he pleased in selling this merchandise that was to go into his territory?

"A. Yes, sir; he selected his own prospects.

"Q. That is true with reference to the stuff that went into Dickinson, that is his territory, is it not?

"A. Yes, sir.

"Q. And he could use his own judgment about the solicitation for any of this merchandise that would go, or equipment, into Dickinson?

"A. As to where he went?

"Q. As to the merchandise, as to the prospects.

"A. Yes."

Mr. Trimble testified: "The arrangement with the salesmen is that they are given list prices, are paid a straight commission, are responsible as to their work to the general sales manager in Minneapolis. . . . The manner is simply for the salesman to go out and sell the merchandise at any time. He is at liberty to make appointments at any time of the day or evening. The method of selling is purely his own resources, and his living and commission depend on his ability to sell and how hard he works at it."

From this testimony the only instruction given to the salesmen is the price list. The company does not attempt to direct him in any way. He is responsible to the sales manager for the cost price of the article. His manner of making sales are left to his judgment and he is responsible only for results. Besides his territory is limited to Dickinson. Gladstone was not in his territory and there is not one word of testimony that the other defendants had any knowledge of his trips to Gladstone.

"In order to hold an employer liable for injury caused by the negligence of a salesman while driving his own automobile, the relation of master and servant must exist, and he must, at the time, have been acting within the scope of his employment in performing an act for his employer's benefit. It must also appear that the automobile was used in the employer's business with his knowledge and assent, and under his direction and control." 7-8 Huddy, Auto. p. 350, § 183.

The petition for rehearing is denied.

NUESSLE, MORRIS, BURR and CHRISTIANSON, JJ., concur.