Fischer v. Havelock

PLUMMER, J.

The plaintiff had judgment for damages against the defendants in an action tried by the court sitting without a jury, on account of injuries received in an automobile collision with a truck driven by the defendant Have-lock, found by the court to be acting as the agent of the Texas Company. No issue is raised as to the liability of Havelock, nor as to the amount of damages awarded by the court. The Texas Company bases its appeal on the theory that Havelock, at the time of the collision, was an independent contractor.

The record shows that at all the times referred to in this appeal Havelock had charge of the distribution and sale of Texaco products, including gasoline, kerosene, oils, etc., kept by the company at Ukiah, whether in tanks belonging to the company, or belonging to Havelock does not appear. The gasoline, kerosene, oils, etc., belonged to the Texas Company, none of which was purchased by Havelock, but he was authorized to make sale thereof for cash and on credit to purchasers whose credit rating was first approved by the company. In the event that Havelock made any sale on credit to anyone not so approved by the company, he became personally liable. The prices at which sales of products could be made were at all times fixed by the Texas Company. Havelock was authorized to make collections and remit the same from time to time to the company. He was not allowed to retain any amount collected by him, for and as his compensation. ' Havelock was paid on a commission basis, with a guaranteed compensation of $200 a month. Havelock furnished his own truck, which was lettered so as to show he was delivering Texaco products. On the day of the injury, Havelock had gone to Willetts to deliver gasoline for the Texas Company, to a purchaser by the name of Hall. Hall was a customer of the company, buying on credit, who had been obtained as a customer prior to the appointment of Havelock as its distributing agent at Ukiah. The collision

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occurred as Havelock was returning after making delivery of gasoline to Hall.

The agreement entered into between Havelock and the Texas Company, by which Havelock was employed as distributing agent for the company, was and is in writing, and among other things contained the following: “First: The Company hereby appoints the agent (and the agent- hereby accepts the appointment), as agent for the Company, at Ukiah, California. The agent’s surety bond will be $1,500.00. Second: The agent’s duties are fixed by this agreement, the rules and practices of the Company, and by instructions issued by the company from time to time. Third: The agent shall strictly observe and obey the Company’s instructions, and faithfully perform all duties connected with his agency. Promptly, correctly and in strict accordance with Company’s instructions, account for all Company moneys, goods, products, equipment, etc., in his possession, or coming into his custody, and pay the Company for any shortages which may develop at any time. Sell the products of the Company for cash, or on credit properly authorized, and not exchange or agree to exchange the Company’s products for property or merchandise for private use or account; personally pay the Company on demand (a) the sum due on any account opened by him without authority, and (b) any portion of any credit account which has been sold in excess of the credit limit placed thereon by the Company. The Company shall not be under any obligation to make any attempt to collect such accounts nor to assign any part of such accounts to agent until the Company shall have received full settlement thereof. Neither (a) sell the Company’s products, directly or indirectly, at less than Company’s authorized prices, nor (b) enter into any secret agreements, contracts, or understandings with any customer or competitor for the purpose of reducing the prices of the product or controlling business.”