Throop v. F. E. Young & Co. - 94 Ariz. 146, 382 P.2d 560 (1963)

Rule:

The test to determine if the doctrine of "respondeat superior" applies to charge an employer with liability for negligence of his employee is whether, with respect to the physical conduct of the employee and the performance of his service, he is subject to the employer's control or right of control.

Facts:

Appellant widow filed a wrongful death action against a company and the administrator of a salesman's estate. An automobile driven by the company's salesman veered across the centerline of the highway into the path of widow's car and killed her husband. The evidence revealed that the salesman had no office duties, wrote no reports, and paid his own expenses. The trial court directed a verdict in favor of the company and declined to grant a directed verdict in favor of the administrator. Appellant widow sought review of the decision. 

Issue:

Could the company be held vicariously liable for the conduct of the salesman? 

Answer:

No.

Conclusion:

On appeal, the court affirmed, ruling that there was no evidence from which to reasonably infer that the company had a right to control its salesman in the operation of his automobile and that therefore vicarious liability could not be imposed upon the company.