Burlingham v. Gray

SCHAUER, J.

This is an action for damages for the wrongful death of Wade Earl Burlingham, caused by injuries sustained in the collision of an automobile driven by the defendant John W. Gray and a motorcycle operated by the decedent. The sole question to be determined is whether the trial court was or was not justified in holding that as a matter of law under the evidence the defendant John W. Gray was not an employee of defendant Stockholders Publishing Company on the date of the collision and in withdrawing that issue from the jury. We have concluded that the question should have gone to the jury.

The case comes to us on appeal by plaintiffs from the judgment entered upon a directed verdict against them and in favor of defendant Stockholders Publishing Company. Defendants John W. Gray, Lewis R. Gray, Alice D. Gray, and Stanley C. Porter filed separate notices of appeal from a judgment on a verdict found by the jury against them and in favor of plaintiffs. The appealing defendants, however, after due notice to them, have failed to pay the required filing fee on appeal, and have filed no briefs or points and authorities ; therefore, their incipient appeals will be dismissed (see rule 5 for Rules for the Supreme Court and District Courts of Appeal).

Plaintiff Winifred E. Burlingham is the widow and the other plaintiffs are the parents of the decedent Wade Earl Burlingham. At the date of the collision, January 1, 1941, John W. Gray (the driver of the automobile) was nineteen years of age. Defendants Lewis R. Gray and Alice D. Gray

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are the parents of John, and are sued as signers of the application for his operator’s license. Defendants Stanley C. Porter and Stockholders Publishing Company are alleged in the complaint (amended) to have been the employers of John W. Gray in the business upon which the latter was engaged at the time of the accident. Evidence as to the fault of the two persons involved in the collision has been omitted from the transcript by stipulation, and, as previously mentioned, the only issue before us is the sufficiency of the evidence as to the character of the relationship between the defendant Stockholders Publishing Company on the one hand and Porter and Gray on the other.

The evidence shows that at the date of the accident the defendant Stockholders Publishing Company (hereinafter referred to as “the company”) was the publisher, and defendant Porter a distributor (in a portion of Orange County) of a newspaper known as “The News.” Defendant John W. Gray was one of the carrier boys employed by Porter to deliver copies of The News in the latter’s territory, and was paid by Porter therefor the sum of $50 per month, “plus bonuses if his circulation went up.” A written contract between Porter and the company, dated November 15, 1937, contains the following provisions, among others: