Graetch v. Dix

California Court of Appeal Feb 19, 1945 No. Civ. 14678Published

Before: Wood (W. J.)

AI Brief

AI-generated · verify before citing

Holding. The court held that the evidence was sufficient to support the jury's finding that the defendant driver was an employee of the defendant company acting within the scope of his employment, rather than an independent contractor.

Issues

Whether the evidence was sufficient to support the jury's finding that the defendant driver was an employee of the defendant company.
Whether the defendant driver was an independent contractor as a matter of law.

Disposition. affirmed

Quotations verified verbatim against the opinion

“It is ordinarily the function of the jury to determine the issue whether a commission salesman is an employee or an independent contractor.”

“In resolving the issue whether one is in fact an employee it is very important to apply the test whether the alleged employer has the right to control his activities, the right to direct and give orders, whether that right be exercised or not.”

WOOD (W. J.), J.

Plaintiffs commenced this action to recover for personal injuries which they suffered on June 4, 1943, when the automobile in which they were riding was struck by an automobile driven by defendant Dix. They allege that Dix was at the time of the accident the agent of defendant Henderson, doing business as Henderson Livestock Commission Company, acting within the course of his employment. A jury returned a verdict in favor of plaintiffs in the sum of $7,500. In this appeal, which is prosecuted by Henderson Livestock Commission Company only, it is asserted that the evidence is insufficient to sustain the implied finding of the jury that Dix was the agent of his codefendant, and that it is affirmatively shown that the status of Dix was that of independent contractor.

The evidence upon which .the jury based its verdict is to be found mainly in the testimony of Dix, which is not in substantial conflict with any other evidence. Dix commenced his employment with Henderson Livestock Commission Company, hereinafter referred to as Henderson, on March 15,1943. Henderson maintained offices in the Union Stock Yards and charged a commission from owners for selling their livestock. Dix was “hired” by Henderson, receiving 75 per cent of the commission from the sale of stock which he delivered. Henderson guaranteed to Dix compensation of $250 per month, but Dix did not earn a sufficient sum as commission to cover his guarantee until several months after the accident in question. Dix furnished his own car but was allowed five cents per mile while using it. He worked out of Henderson’s office and used a business card on which was printed:

“Res. Phone, Covina 14605

Henderson Livestock Commission Company

Union Stock Yards.

Los Angeles, California. Office:

Peter Dix. Phone: Jefferson 6690”

Henderson deducted from the earnings of Dix certain sums for Social Security and Unemployment Insurance. Dix testified: “Q. Whatever Mr. Henderson tells you to do you do it?

[118]

A. Well, he doesn’t have to tell me what to do,

Graetch v. Dix

AI Brief

WOOD (W. J.), J.

More from California Court of Appeal

Related research

AI Brief