Travelers Insurance v. Hodge

HANSON, J. pro tem. The only question which this suit was brought to determine was whether or not one Steffler was an employee of appellant'Ilodge at the time he was injured while riding in an automobile owned by Hodge but being driven by one Irby with the permission of Pledge.

The trial court ruled that Steffler was an employee of Hodge and as a consequence of this ruling* the respondents as insurers under a property damage and public liability policy issued to Hodge were absolved by the terms thereof from all liability to defend Hodge or to pay any part of any judgment which might be rendered in an action instituted by Steffler against Hodge and Irby.

The insurers instituted their action for declaratory relief not only against their assured, the appellant Hodge, but also against Irby as the driver of the automobile and against Steffler who as a passenger therein was injured.

At the conclusion of the testimony the trial judge found that at the time of the accident Steffler and Irby were both [101]employees of Hodge and that each of them was acting within the scope and course of business of such employment. The appeal from the judgment perfected in this court is by Hodge alone who contends that the evidence was insufficient to sustain the judgment that Steffier was his employee.

As the rule which governs an appellate court in reviewing a trial court’s judgment which it is claimed is not sustained by the evidence is exceedingly well established, we refer only to one of the latest eases on the subject, that of Dillard v. McKnight, 34 Cal.2d 209 [209 P.2d 387, 11 A.L.R.2d 835], as our guide and authority without quoting from it or from any other case. We turn at once to a recital of the essential facts.

The National Literary Association named but not served as a party defendant along with Hodge and Irby in the suit instituted by Steffier is engaged in the business of procuring subscriptions to some 60 odd national magazines. Under the contracts it has with these magazines it is permitted to retain as its commission a substantial portion of the regular annual subscription price of these magazines for subscriptions obtained by it. In the furtherance of its business it engages individuals on a commission basis to aid it in procuring subscriptions. According to the only written contract introduced in evidence between the association and Hodge such individuals thus directly engaged by it are denominated as “dealers.” It is plain from the contract that the dealers are independent contractors and not employees of the association. They are privileged to engage in any business they choose which does not compete with the association and may operate anywhere in the United States. Moreover, they are privileged to engage other individuals to assist them either as their own employees or as independent contractors.