(209 P.) [1] We will first consider the points made by Grote-Rankin in its brief relative to the motion for judgment notwithstanding the verdict. It is first claimed in this regard that Whitney was an independent contractor, and that Grote-Rankin would not therefore be liable for his negligence. In a number of cases this court has had before it the question of whether or not a particular contract created the relation of independent contractor or principal and agent, and has offered definitions by which that question could be determined. In North Bend Lumber Co. v. Chicago, Mil. & P. S. R. Co., 76 Wash. 232, 135 Pac. 1017, the definitions formulated in a number of prior decisions of this court have been set out, and the rule restated as follows: informed that the store hours were from 8:45, against both Whitney and the Grote-Rankin o'clock a. m. to 5:15 o'clock p. m., and it is Company, by which he was employed. a reasonable inference from the evidence that during these hours he was to devote his entire time to the business of the company. After being employed, he entered upon the performance of his duties, going about the city soliciting prospective customers, with the view of selling pipeless furnaces. To aid him in this work he made use of an automobile, which he either owned or had exclusive control of. At the time of the employment nothing was said about the method by which he should get about the city, and the officers of the company with whom he talked at the time gave no consideration to his method of transportation. It was immaterial to them by what means he got about. The thing they were interested in was results. As compensation Whitney was to receive the sum of $40 per week, and 2 per "A contractor, to be independent, must exercent. commission on sales. He did not have cise an independent employment. He must be the power to finally close a contract with a at liberty to perform the work he undertakes in purchaser, but the latter was required to his own way, at his own time, within the limits come to the store for that purpose, and to of the time fixed in the contract, and by such arrange terms of credit, if such were desired. means as to him seems most suitable. This On the evening of July 27, 1920, at about does not mean, of course, that the contract it7 o'clock, he went in his automobile to the self may not prescribe that the work shall be home of one C. F. Wagner, a prospective cus- performed in a particular manner, or that certomer, for the purpose of presenting the tain parts of it must be completed within a time less than the time fixed for the complemerits of the pipeless furnace, and with the tion of the whole, or that certain means shall view to making a sale thereof. He called be employed in the accomplishment of the work; upon Wagner a day or two before, while the but it means that control over these matters latter was at work in another part of the must not be left to the whim or caprice of the city, and was told by him that he could be employer, or his representative, to be exercised seen about the matter some evening. It was as the work progresses. If such right of conin response to this suggestion that Whitney trol is retained, if the employer reserves to went to the home of Wagner at the time himself, or to his representative, the right to mentioned. When he arrived there he park- control at his pleasure the manner and means ed his car in front of the house occupied by by which the work contracted for is to be acthe respondent, who was a neighbor of Wag-complished, if the employer may stand by and ner; the reason for this being the ungraded when, and how it shall be performed, such tell the person undertaking the work where, condition of the street. At the place where person is the agent and servant of the employthe car was parked the street presented a er, and not an independent contractor. considerable grade. Shortly after this, and employer may reserve to himself the right to while Whitney was at the Wagner home, the judge of the result of the work, and may exerrespondent drove up in a Ford and stopped a cise this right as to the character of the work, few feet to the rear and down the hill from or as to the character of the materials used Whitney's car. When the latter returned to in the work while the work progresses, without his automobile, the respondent was in the act tract; but matters of this kind mark the limdestroying the independent nature of the conof putting a tire on the Ford truck. Whit-its of his rights. They must relate to results, ney cranked his car, and then, as the evi- and not as to the means by which the results dence shows, got into it and caused it to are accomplished." back over and upon the hips of respondent. The latter, making an outcry, requested him to drive forward. The car was then advanced a few feet and again backed upon the respondent, pinning him between the two cars in such a manner that he received serious injuries. After the accident happened, Whitney was lying on the ground at the side of his car unconscious. He says he remembers nothing after having cranked the car. He had a lump on the left side of his head just above the ear, which he believes was caused by being struck by the crank. The action, as above indicated, was brought The [2-4] One of the tests to determine the question is whether the employer retained the right, or had the right under the contract, to control the mode or manner in which the work was to be done. Where the facts presented are as consistent with the theory of agency as that of independent contractor, the burden is upon the one asserting the independency of the contractor to show the true relation of the parties. This may be a mixed question of law and fact, or of law alone. In Norwegian Danish M. E. Church v. Home Tel. Co., 66 Wash. 511, 119 Pac. 834, we said: "These facts are quite as consistent with the, ried another employee of the company with him, theory of agency as that of independent contractor, and the burden shifts to appellant to show its true relation to the construction company, the best evidence of which would have been its contract; thus making a mixed question of law and fact, or one of law alone." We are unable to recognize any substantial distinction between this case and that of Buckley v. Harkens, 114 Wash. 468, 195 Pac. 250. In that case one W. H. Harkens, while driving an automobile in the city of Seattle, ran into an automobile owned and operated by the plaintiff, causing injuries to one Helen Buckley. Thereafter Mrs. Buckley, her husband joining, began an action against Harkens and wife and the Garford Truck Company to recover damages for the injuries suffered. One of the defenses there, as here, was that of independent contractor. In that case Harkens, at the time of the accident, was in the employ of the Garford Truck Company as salesman of its motor trucks, and received as compensation for his services the sum of $125 per month and a 5 per cent. commission on the selling price. He owned the automobile that he was driving at the time of the accident, and was allowed $40 per month by the truck company for its upkeep and drove it under a license as the property of the company. No restrictions were put upon him by the company as to the time when, or the purpose for which, he could drive a car. The accident occurred one evening on his way home after having taken another employee to a ferry. In going to the ferry it was necessary for him to go somewhat out of his direct route. The portion of the opinion covering this matter is as follows: going somewhat out of his direct route to put such employee off at a ferry; and that the accident happened while he was on his way home from the ferry. We cannot think, therefore, that the verdict was without evidence in its support, and it follows that the court erred in setting it aside for that reason." It is true in that case that the court reversed a judgment of the trial court granting judgment to the defendant notwithstanding the verdict, and held that it was a question of fact as to whether the relation there was that of independent contractor or principal and agent, and as such was for the jury. Grote-Rankin says in this case that the trial court erred in not submitting the question to the jury. This point would be well taken, if there was a conflict in the evidence. But here the evidence presents no conflict as to the terms of the contract between Whitney and the company employing him. Three of the cases cited by Grote-Rankin upon this question should receive serious consideration. In Barton v. Studebaker Corpora tion of America (Cal. App.) 189 Pac. 1025, it was held that an automobile salesman, working upon a commission, with no salary and no fixed hours, was an independent contractor, and that the company was not liable for the negligent acts of such salesman whereby a third person was injured. Under the terms of employment in that case the defendant corporation, as stated in the opinion, could exercise no authoritative control over the work of its salesman and therefore the relation was that of independent contractor. Upon a similar statement of facts a like result was arrived at in Premier Motor, etc., Co. v. Tilford, 61 Ind. App. 164, 111 N. E. 645. In Gall v. Detroit Journal Co., 191 Mich. 405, 158 N. W. 36, it was held that one employed to deliver newspapers at a fixed compensation, with the right of the employer to determine the time of delivery and the routes and schedules, was an independent contractor. "The evidence we need not review at length. Briefly, it tended to show, and the jury were warranted in finding, that Harkens at the time of the accident was in the employment of the motor company as a salesman of its motor trucks; that he received as compensation for his services the sum of $125 per month, and a 5 per cent. commission on the selling price of all sales of trucks made by him; that, while he owned the automobile which he was driving, he was allowed $40 per month for its upkeep; that he had no license authorizing him to drive the automobile as his own property, but drove it under the license of and as the property of the motor company; and that no restrictions were put upon him by the motor company as to the time when or the purposes for which he could drive the car. It would seem that, under these conditions, it would be difficult to conceive of a circumstance when it could be said as matter of law that he was not driving the car as servant and agent of the motor company; but, be this as it may, there was noth-trine of those cases is not in harmony with ing in the particular circumstance that compels the conclusion. The facts shown were that, at the close of business on the day of the accident, Harkens left the company's place of business with the automobile for the purpose of going to his home; that, on leaving, he car Motor Co. Cases could be distinguished upon It may be that the Barton and Premier the facts from the case now before us; but when read in the light of the Gall Case, and applying the doctrine of that case, the three cases could not each be distinguished. In neither of the first two was there any requirement as to the time of service or any compensation except commission. In the Gall Case both these elements were present, and yet it was held that there the employee was an independent contractor. The doc the views expressed by this court in Buckley v. Harkens, supra. We have not overlooked the fact that in that case the employer paid $40 per month for the upkeep of the car, and that the license was in its name. But these are not controlling features. In that (209 P.) case no restriction was put upon the employee by the motor company as to the times when, or the purpose for which he should drive the car. The employment was that of salesman for motor trucks, and it was remunerated with a fixed wage and a commission. Had Whitney been employed in the store, and negligently injured one while pursuing the course of his employment, it would not be contended that Grote-Rankin would not be liable therefor. The fact that his employment took him out of the store does not relieve the company from his acts of negligence, providing that at the time of the accident he was acting within the scope of his employment. [5] The next point upon this branch of the case is that the use of the automobile by Whitney had not been authorized by GroteRankin, and for this reason it is claimed the company is not liable. At the time Whitney was employed nothing was said about transportation, or the means by which he should get about the city to see prospective customers. After he had been employed for a time, the evidence shows, or at least a reasonable inference from the evidence is to the effect, that one of the managers of the company under whose supervision Whitney came knew that he was using an automobile in his business. No ojections were made thereto, and it appears to have been perfectly satisfactory that Whitney should use the car, or any other mode of travel that he might elect. In Gibbs v. Dupree (Colo. App.) 144 Pac. 1133, the defendant operated a garage, and one of its employees, without the knowledge of his employer, and after being forbidden by it to take any car out of the garage for any purpose, except as directed by the employer, took a car to go to a battery station and get a battery which had been charged. After obtaining the battery, and on the way back to his place of employment, an accident occurred whereby the plaintiff was injured. Suit was brought against both the employee and employer, and there was no claim that, as to the former, he had not been guilty of negligence in injuring the plaintiff. It was there said: "Apart from his driving the car to the supply house, where he bought the pair of pliers, which will be referred to later, the facts disclose, and the jury so found, that he was about his masters' business, and within the scope of his employment, in going after the battery and in returning with it, although he was using a means of carrying it suggested and carried out by his own will and for his personal convenience, and contrary to the directions of his employers and without their consent or the consent of the owner. And as the accident occurred when he was so returning, his employ ers are liable for the tort committed. "This rule is obviously founded on the great principle of social duty, that every man, in the management of his own affairs, whether by himself or by his agents or servants, shall so con duct them as not to injure another.' Farwell master's business, and it is, on the whole, bet- In the present case the evidence shows that, by the use of the automobile, Whitney was able to see more people and presumably make more sales than he would have been, had he used any other method of transportation. His employer was directly benefited by this fact. The automobile has become a thing of necessity in the transaction of many kinds of business, and it seems to us that it would be unreasonable to hold that the employer was not liable because the employee was making use of an automobile directly benefiting employer and employee. St. Louis, etc., Ry. v. Robinson, 117 Ark. 37, 173 S. W. 822, was a case in which the railway company employed a boy to call railway crews, when they were to go out on their respective runs, and who used a bicycle for this purpose, and it was there held that the railway would not be liable to a third person injured by the boy while using the bicycle; the court saying that the bicycle was not necessary for him to perform his duties, because time and distance were such that he could have done the same service by walking. There is this difference between that case and the case here, in that the bicycle was held not to benefit the employer, while here the car, as we have seen, did. If this be not a sound distinction, then we think the rule of that case should not be adopted in this jurisdiction and applied to the use of automobiles. The case of Stretton v. City of Toronto, 13 Ont. Rep. 139, was where an employee wrongfully made use of a horse and buggy for the purpose of going after a wrench, and while on the trip injured the plaintiff. It was there held that the defendant was not liable, since the use of the vehicle was wrongful, and not necessary to the performance of the errand. This case is less closely in point than the bicycle case, and further comment is not necessary. [6] A third point made on the motion for judgment notwithstanding the verdict is that the accident occurred after Whitney had completed his day's work. But this does not necessarily prevent a recovery. The manager of the department in which Whitney was employed testified that he gave no thought to the time of day or evening when Whitney might succeed in getting an order for a furnace, and that he was never told not to work after 5:15 o'clock p. m., and never specifically authorized to so work. As above stated, the visit of Whitney to the prospective customer was at about 7 o'clock in the evening, and before dark, after it had been suggested by this customer that Whitney call upon him during the evening. It cannot be held that, because a person employed to go about the city soliciting business goes to see a prospective customer after the time in which he was required to work and upon the business of his employer, it necessarily follows that he was not acting within the scope of his employment. In Roberts v. Southern Railway Co., 143 N. C. 176, 55 S. E. 509, 8 L. R. A. (N. S.) 789, 10 Ann. Cas. 375, it was said: dent. The doctor testifying for respondent, and who had treated him since the injury, gave evidence which would confirm the serious nature of the injury to the spine. Under these circumstances, we cannot say the verdict is so large as to show passion and prejudice on the part of the jury. A review of other cases, and what has been sustained in them, does not seem necessary, because, as pointed out in Barney v. Anderson, 116 Wash. 352, 199 Pac. 452: "There can be no hard and fast rule in such cases, because of the fluctuating purchasing power of money and circumstances more or less peculiar in each individual case. [8] Another point made upon the motion for a new trial is that of newly discovered evidence. Affidavits were presented which were taken about a month after the trial from three or four persons at Missoula, Mont., where the respondent formerly lived, and which affiants had been personally acquainted with him prior to the trial, and had seen him since, and these were to the effect that his physical appearance was no different "The test is not whether the act was done while Bradley was on duty or engaged in his duties; but was it done within the scope of his employment, and in the prosecution and furtherance of the business which was given him to do? As held in Sawyer v. Railroad (N. C., at the present term) 54 S. E. 793, quoting from Wood on Master & Servant, § 307: The simple test is whether they were acts within the scope of his employment; not whether they were done while prosecuting the master's business, but whether they were done by the servant in furtherance thereof, and were such as may be fairly said to be authorized by him. By 'authorized' is not meant authority express-than it had been for a number of years prior ly conferred, but whether the act was such as was incident to the performance of the duties intrusted to him by the master, even though in opposition to his express and written orders.'" Under the evidence in this case, it cannot be said, as a matter of law, that Whitney, in visiting the prospective customer after the regular store hours, was not acting within the scope of his employment. Upon the motion for a new trial Grote Rankin presents a number of points, the most of which relate to instructions given, or the refusal to give requested ones. Without reviewing the matter of instructions in detail, it may be said that we have given careful consideration to the instructions given, as well as those refused, and we find no error in this regard. The issues in the case proper for the jury to determine were presented to them in the instructions given, and the law applicable to the case was correctly stated. to the injury. The brother of the respondent and his wife testified upon the trial that prior to the accident the respondent had an erect carriage, and that his back at the time of the trial was not in the condition it had been before. As we read the record, this was not one of the prominent issues in the case. It was claimed that the lower part of the spine was injured. While the rounded condition of the shoulders may have been a matter of argument to the jury on the trial, the evidence does not disclose that this was one of the important elements of damage relied upon. The injury relied upon was to the lower part of the spine. The judgment should not be disturbed upon the ground of newly discovered evidence. [9] Upon Whitney's appeal little need be said. The question there was plainly one for the jury. It is complained that the court did not give an instruction which presented this appellant's theory of the case. An instruction was requested to the effect that, if [7] It is contended, however, that the ver- Whitney received a blow on the head and redict was excessive, and for this reason a new memered nothing other than the cranking of trial should be granted, because the jury his car, and if the car was caused to roll was acting under the influence of passion and back by the cranking, there could be no reprejudice. The evidence shows that the re- covery. This requested instruction was modspondent had three ribs broken; that his ified and given to the effect that if Whitney, spine was injured; that he was in bed for in backing the car acted unconsciously, withabout six weeks; that he had not been able out knowing that he was doing such an act, to do any work since the injury and prior to and not carelessly or thoughtlessly, then he the trial; that he was in a nervous condi- would not be chargeable with negligence. tion, and had suffered much pain; and that | The instruction given properly presented the prior to this he had been strong and well. A doctor called by Grote-Rankin, it is true, testified that the X-ray plates which he took showed a normal spine, and that in his examination he did not find any evidence of permanent injury resulting from the acci issue to the jury. There was no evidence that the cranking of the car caused it to move upon the respondent, but the evidence is that after cranking Whitney got into the car and was operating it when the respondent was injured. STATE v. SUPERIOR COURT 17 land on which dike constructed includes the dike, without specific reference. [10] It is further claimed there was no evi- | 5. Eminent domain 191 (6)-Description of dence as to the reasonable value of the services of a doctor, which, under the instructions, might be included in the amount of the recovery. It is sufficient answer to this contention to say that the evidence offered upon the matter was not objected to on this ground. The judgment will be affirmed. PARKER, C. J., and MACKINTOSH, HOVEY, and HOLCOMB, JJ., concur. STATE ex rel. ABBOTT et al. v. SUPERIOR (Supreme Court of Washington. Aug. 31, 1. Drains 14(3)-Order establishing district held sufficient. An order made by county commissioners in proceeding to organize drainage district, declaring that such district should be organized and declared a drainage district under the laws of the state, and known as "Drainage District No 19 of Skagit County," was a sufficient order establishing the district. 2. Eminent domain 264. Whether certain property owners will be benefited by a drainage system planned by a drainage district is a matter to be considered when the question of assessments and benefits is being determined, and not on certiorari to review the order decreeing a public necessity for the condemnation of rights of way. 3. Navigable waters 22(1)-Federal permit for dam not needed, when stream nonnavigable above site of dam. A permit from the federal government for the construction of a dam was not necessary, where the stream was not navigable above the point where the dam was to be constructed, but was dry a considerable portion of the time, and, if navigable at all, only so during periods of high tide. 4. Eminent domain 198(1) - Damage from construction of drainage system' is matter for jury, and not objection to order decreeing public necessity. Whether the diversion of water from the watershed of one stream to another stream in constructing a drainage system will damage property owners in the watershed of the latter stream is a proper matter to be determined by the jury in condemnation proceedings, and not ground of objection to an order decreeing public necessity for the condemnation. of land on which a dike was constructed inIn a condemnation proceeding, a description cludes the dike, and it is unnecessary to specifically refer to it. 6. Eminent domain 191 (6)-Description of land held sufficient. of the land to be taken as a strip 60 feet wide, In a condemnation proceeding a description the center line of which is the center line of a specified slough, describes the land with reasonable certainty, which is all that the law requires. 7. Drains 70-Assessment district need not have same boundaries as drainage district. Under Rem. Code 1915, § 4137 et seq., and section 4145, the boundaries of an assessment district as fixed by drainage district commissioners need not be the same as the boundaries of the drainage district as fixed by the county commissioners. Department 2. lation of Nelson Abbott and others, against Henry A. McLean, of Mt. Vernon, and By- certiorari to review an order of the superior MAIN, J. This action is brought here by court of Skagit county, decreeing a public necessity for the condemnation of certain rights of way for drainage purposes, and authorizing the commissioners of drainage district No. 19 to proceed with the condemnation benefits against the lands which will be beneof such rights of way, and the assessment of fited by the proposed improvement. Drainyear 1917, and is located in the western end age district No. 19 was organized during the of Skagit county. Within its boundaries as originally established there were comprised approximately 7,000 acres of land. By the proposed drainage system the waters collected in the ditches will ultimately be discharged into Puget Sound. This will be through the agency of Higgins and Indian sloughs. Indian slough is in the northwestern part of the district, and empties into tide water flowing in a general northwesterly direction. Higgins slough is in the southwestern portion of the district, and flows in a westerly direction, making a considerable bend or curve. The latter slough is much more crooked than is the former. The lands embraced within the district are flat and swampy. There is a point where the surface water on the lands divides by reason of a For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes 209 P.-2 |