Throop v. FE Young and Company
94 Ariz. 146, 1963 Ariz. LEXIS 293, 382 p.2d 560 (1963)
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Rule of Law:
An employer is not vicariously liable for the negligence of a salesperson who acts as an independent contractor, retaining control over the manner of their work and instrumentalities. The doctrine of res ipsa loquitur may still apply even if the plaintiff introduces some evidence of specific negligence, provided that evidence does not offer a complete explanation of the injury's cause.
Facts:
- Vernon Throop, a U.S. Army counter-intelligence officer, was driving west on U.S. Highway 80 near Benson, Arizona, with a passenger on October 10, 1957.
- Peter J. Hennen, driving east on the same highway, suddenly swerved his vehicle into Throop's lane of traffic, causing a violent head-on collision.
- Both Vernon Throop and Peter Hennen were found dead in their respective cars at the scene of the accident.
- Hennen had been employed by F. E. Young and Company for 15 years as a commission-based salesperson, selling medical testing kits to wholesalers, and he also sold goods for at least one other company.
- Hennen owned his car, covered his own hotel and travel expenses (receiving a mileage allowance), chose his own itinerary, selected which wholesalers to visit, and only visited the company office four or five times a year.
- F. E. Young and Company made deductions for federal withholding tax and paid federal employment compensation for Hennen, and Hennen was listed similarly to office employees in personnel records.
- Before his last trip, Hennen told Mrs. Jennings (company president) he had a clean bill of health and appeared robust, but he secretly suffered from a heart condition for which Dr. Jack Fischer had treated him and advised him not to drive between 1947 and 1956.
- Immediately preceding the collision, a passenger observed Hennen's automobile as effectively 'driverless,' with a hand on the wheel but no one behind it in a driving position, and heart medications (Nitroglycerin and Peritrate) were found in Hennen's pockets after the crash.
Procedural Posture:
- Marie D. Throop, a widow, brought a wrongful death action for herself and her minor children against Robert D. Stauffer, as administrator of Peter J. Hennen's estate, and F. E. Young and Company.
- At the conclusion of evidence, both defendants moved for a directed verdict in the trial court.
- The trial court directed a verdict in favor of F. E. Young and Company.
- The trial court denied the motion for a directed verdict by Robert D. Stauffer, as administrator.
- The jury returned a verdict for Marie Throop in the sum of $50,400.00 against Stauffer, as administrator.
- Marie Throop appealed the directed verdict in favor of F. E. Young and Company to the Supreme Court of Arizona.
- Robert D. Stauffer, as administrator, appealed the jury verdict in favor of Marie Throop to the Supreme Court of Arizona.
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Issue:
1. Does an employer exert sufficient control over a commission-based traveling salesperson, who uses their own vehicle and sets their own schedule while also selling for other companies, to establish a master-servant relationship for purposes of respondeat superior liability? 2. Is it reversible error to instruct a jury on res ipsa loquitur when the plaintiff has introduced some evidence of specific negligence but has not provided a complete explanation for the cause of the injury?
Opinions:
Majority - Warren L. McCarthy
No, F. E. Young and Company did not exert sufficient control over Peter Hennen to establish a master-servant relationship, and thus the trial court correctly directed a verdict for the company. The court applied the "control or right of control" test, as outlined in the Restatement of Agency 2d, § 220, to distinguish a servant from an independent contractor. Key factors included Hennen's significant autonomy over his schedule, travel, selection of clients, use of his own vehicle, and selling for other companies, which indicated he was not subject to the company's control over his physical conduct or the manner of operating his automobile. The court emphasized that the ultimate fact is control over the manner of achieving results, not just the results themselves, and clarified that principles from worker's compensation cases are not directly applicable to common-law respondeat superior liability. Furthermore, the court found no evidence that F. E. Young and Company knew or should have known about Hennen's heart condition, nor was there a general duty to require physical examinations for part-time salespeople using their own cars without known incompetence. No, it was not reversible error to instruct the jury on res ipsa loquitur, as the plaintiff's specific evidence did not fully explain the cause of the injury. The court found that the defendant had waived the physician-patient privilege regarding Dr. Fischer's testimony by insisting that the entire deposition be read and attempting to use the privilege as both a "sword and a shield" to present a "sudden heart attack" defense while withholding contradictory evidence. Regarding res ipsa loquitur, the court reiterated its four conditions, emphasizing that the doctrine is predicated on the plaintiff's inability to specify the precise act of negligence. The evidence of Hennen's prior heart condition, the "driverless" car observation, and the found medications did not conclusively establish the specific cause of the accident (e.g., whether he fell asleep, became inattentive, or suffered a heart attack as a result of impact or prior to it). Therefore, when specific evidence does not clearly establish the precise cause, both the specific evidence and appropriate inferences from the accident (res ipsa loquitur) should be presented to the jury, allowing them to make a determination.
Analysis:
This case provides important clarification on the scope of employer liability under respondeat superior, particularly in the context of traveling salespeople. It firmly distinguishes between an employee (servant) and an independent contractor based on the employer's 'control or right of control' over the physical details of the work, reinforcing that simply paying wages or deducting taxes does not automatically create a master-servant relationship. Furthermore, the decision refines the application of res ipsa loquitur in Arizona, allowing for its use even when some specific evidence of negligence is introduced, provided that evidence does not offer a complete and undisputed explanation of the accident's cause, thus preventing plaintiffs from being unfairly penalized for partial discovery.
