Miller v. Metropolitan Life Ins. Co.

Decision Date03 August 1938
Docket Number26669.
Citation134 Ohio St. 289,16 N.E.2d 447
PartiesMILLER v. METROPOLITAN LIFE INS. CO.
CourtOhio Supreme Court

Appeal from Court of Appeals, of Mahoning County.

Hayden Evans was a life insurance solicitor, employed by the Metropolitan Life Insurance Company. The duties of his employment were to solicit and sell industrial and other life insurance, collect premiums and service accounts within a 'debit' assigned to him, in Youngstown, Ohio. Means of transportation were not furnished him by the company, nor was he expressly required to use an automobile in connection with the discharge of his duties. He used his own automobile as a means of locomotion, but was allowed nothing for its use or maintenance. The district manager of the insurance company testified that he had knowledge of Evans' use of the automobile in connection with his work, and that he, the district manager, expressed no objection thereto and had no knowledge of its use at the time of the 'accident.'

On February 6, 1935, while on his way to collect an insurance premium from a policy holder in his debit, Evans ran into and injured plaintiff. Suit for damages was instituted by plaintiff against the Metropolitan Life Insurance Company. The petition alleges, among other things, that 'at the time of the grievances hereinafter complained of, one Hayden Evans was in the employ of the defendant company as solicitor and agent'; that Evans was then 'acting within the course and scope of his employment' for defendant; that he operated his automobile at an excessive rate of speed failed to keep it under control, and permitted it to skid and run over the sidewalk, striking and injuring plaintiff.

Defendant in its answer, made certain formal admissions and then set up a general denial. At the trial of the case, the court overruled a motion to arrest the testimony from the consideration of the jury and to direct a verdict for the defendant, made at the conclusion of plaintiff's evidence and renewed at the close of all the evidence. The trial court submitted to the jury the questions whether defendant had impliedly authorized the use of the car by Evans and whether Evans was acting within the scope of his employment at the time of the 'accident.' The jury returned a verdict for the plaintiff in the sum of $3,500, upon which judgment was entered. Thereafter appeal was prosecuted to the Court of Appeals, where the judgment was affirmed. The cause is now here on the allowance of a motion to certify.

Manchester, Ford, Bennett & Powers, and M S. Wilkison, all of Youngstown, for appellant.

Knight & Gluck, of Youngstown, for appellee.

BY THE COURT.

Defendant contends, in substance, that Evans was an independent contractor, over whose acts it neither reserved nor exercised any control; that, consequently, the doctrine of respondeat superior does not apply.

Plaintiff contends that Evans was an agent, over whose acts defendant had a right of control; that the tortious act complained of was committed by Evans while engaged in the course of his employment; and that, therefore, the doctrine of respondeat superior does apply.

The fundamental rule generally recognized is that the doctrine of respondeat superior is applicable to the relation of master and servant or of principal and agent, but not to that of employer and independent contractor. City of Cincinnati v. Stone, 5 Ohio St. 38; Carman v. Steubenville &amp Indiana Ry. Co., 4 Ohio St. 339; Clark v. Fry, 8 Ohio St. 358, 72 Am.Dec. 590; Pickens v. Diecker, 21 Ohio St. 212, 8 Am.Rep. 55; Tiffin v. McCormack, 34 Ohio St. 638, 32 Am.Rep. 408; Hughes v. Cincinnati & Springfield Ry. Co., 39 Ohio St. 461.

The relation of principal and agent or master and servant is distinguished from the relation of employer and independent contractor by the following test: Did the employer retain control, or the right to control, the mode and manner of doing the work contracted for? If he did, the relation is that of prinicipal and agent or master and servant. If he did not but is interested merely in the ultimate result to be accomplished, the relation is that of employer and independent contractor. Pickens v. Diecker, supra; Carman v. Steubenville & Indiana Ry. Co., supra; Clark v. Fry, supra; Hughes v. Cincinnati & Springfield Ry. Co., supra; 21 Ohio Jurisprudence, 624, Section 3.

What was the character of the relation between Evans and defendant?

S. D. Risley, district manager of defendant company, was asked, on direct examination: 'Q. What directions, if any, do you give Evans as far as taking care of that territory is concerned?' He answered; 'Well, that is rather lengthy to mention, I suppose every direction that is given.'

As we interpret this testimony, it means that Evans was subject to the directions, from time to time given by his employer, with respect to the work he was to perform. This is evidentiary of retention of control on the part of the employer. That which distinguishes an independent contractor from an agent is the freedom from employer control over the work contracted for. The control exercised by an independent contractor over his work is exclusive of that exercised by any other. Where it is not thus exclusive, and its execution must conform to the directions and instructions of the employer, the relation is that of agent and not of independent contractor. That is precisely the relation which Evans bears...

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  • Miller v. Metro. Life Ins. Co.
    • United States
    • Ohio Supreme Court
    • 3 Agosto 1938
    ...134 Ohio St. 28916 N.E.2d 447MILLERv.METROPOLITAN LIFE INS. CO.No. 26669.Supreme Court of Ohio.Aug. 3, Appeal from Court of Appeals, of Mahoning County. Action by one Miller against the Metropolitan Life Insurance Company for injuries sustained when struck by an automobile driven by a life ......

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