Gold Seal Baking Co. v. Kennedy

⁶⁴⁹ Pattison, J., delivered the opinion of the Court. The question presented by this appeal is whether John J. Kennedy, the husband of the claimant, appellee in this court, was, at the time of his death, in the employment of the Gold Seal Baking Company, one of the appellants. The State Industrial Accident Commission decided this question adversely to the appellee, holding that John J. Kennedy was, at the time of his death, in the employment of John W. Dorman. On appeal to the Superior Court of Baltimore City, the jury by its verdict held that John J. Kennedy was, at the time of his death, in the employment of the Gold Seal Baking Company, and from a judgment entered thereon an appeal was taken to this court.

John J. Kennedy, on January 30th, 1926, met his death by drowning in tbe Baltimore Harbor at the foot of Clinton Street. At the time of the accident he was driving an automobile truck, upon the sides of which were painted “Gold Seal Cake” and “Eor Cake That’s Real, Get Gold Seal,” and also “John W. Dorman, Distributor.” Margaret C. Kennedy, when upon the stand, was. asked for whom was her husband working, and she replied, “The Gold Seal Baking Company,” and when asked how she knew that, she stated her husband had told her so. Her husband, she said, had been working for tbe Gold Seal Baking Company about a month when the accident occurred. Previous to that time he had been working for the Gardiner Bakery, driving one of its trucks, and at such time John W. Dorman was also employed by that company as “route boss.” They both left the Gardiner Bakery Company.

Dorman went with the Gold Seal Baking Company, and thereafter Kennedy was employed as driver of the truck, which he was driving at the time of the accident resulting in his death. These facts were all personally known to Mrs. Kennedy. She then testified that she had been told by her husband that, while Dorman was working with the Gold Seal Baking Company, he saw him, her husband, on the street in Baltimore, and told him to come to the bakery the next morning, which he did, and ⁶⁵⁰ he there saw Mr. Tiralle and Mr. Scherr, secretary and president respectively of the Gold Seal Baking Oompany. He said they wanted him to take a position in Washington, hut he told them he would not he able to go to Washington, as he did not wish to leave his wife and home, and they then told him to come back the next morning and they would talk things over.

He went the next morning and saw Messrs. Tiralle, Scherr and Dorman, and the next day he went to work. She was then asked if her husband ever said anything to her about being employed by Mr. Dorman, and she replied “No, sir, never by Mr. Dorman.” Dorman, who was called to the stand by Mrs. Kennedy, upon cross-examination produced a contract or agreement made by him with the Gold Seal Baking Company on the 9th day of September, 1925, in relation to the sale and distribution of cakes, etc. By this contract Dorman was given the exclusive right to sell and distribute cakes of the Gold Seal Baking Oompany in the territory therein named for the period of ten years. He was not permitted to sell and distribute cakes for others, and was to expend his whole time in the distribution of the Gold Seal Baking Company’s cakes.

The cakes were to be furnished to him at twenty cents per pound and he was to sell them to the retailer at twenty-five cents per pound, settlement to be made daily by Dorman for all cash received by him on that day. Dorman guaranteed to do a weekly business of three hundred dollars the first month and five hundred dollars per week during the remainder of the period of ten years. He was to have at least three trucks calling on the trade, etc. The Gold Seal Baking Company agreed to furnish garage space for the trucks and to letter them without charge. Dorman was to receive, in cash or stock, a bonus of eight per cent, on one-half average weekly purchases from the Gold Seal Baking Company, and in the event of a breach of the agreement by Dorman, the agreement was to be at an end.

Dorman from the first failed to carry out the provisions of the contract; he did far less business than he had guaranteed to do and, as we gather from ⁶⁵¹ the record, he was not required to account for the price of the cakes received by him, but was paid commissions on that, which he sold, and given credit for the unsold and stale cakes. Moreover, the settlements required of him were altogether different from those mentioned in said agreement. The two trucks owned by the company at the date of the agreement were sold to Dorman, and a mortgage taken on them by the company for the purchase money, of which no part was ever paid. Dorman was unable to buy the third truck, the one driven by Kennedy, and it was bought by the company, the title transferred to it, and the license therefor issued to the company, and the truck was so held at the date of the accident.

The office occupied by Dorman was in the plant of the Gold Seal Baking Company, and it was there, he claims, that Kennedy was paid by him for his services. Tiralle, the secretary, and Scherr, the president, of the baking company, .as well as