American Family Life Assur. Co. v. Welch, s. 44614
| Decision Date | 03 September 1969 |
| Docket Number | 44629 and 44630,Nos. 44614,No. 1,s. 44614,1 |
| Citation | 120 Ga.App. 334,170 S.E.2d 703 |
| Parties | AMERICAN FAMILY LIFE ASSURANCE COMPANY v. Mrs. E. L. WELCH, Sr. Mrs. E. L. WELCH, Sr. v. PIONEER AMERICAN INSURANCE COMPANY. PIONEER AMERICAN INSURANCE COMPANY v. Mrs. E. L. WELCH, Sr |
| Court | Georgia Court of Appeals |
Syllabus by the Court
1. The court erred in overruling the motion by American Family Life Assurance Company for a judgment n.o.v. because the contract between the company and its representative constituted the latter an independent contractor and there was no evidence that the company assumed to control the time, manner and the method of the representative's work.
2. The Court erred in granting the motion of Pioneer American Insurance Company for a judgment n.o.v. because the contract between the company and its representative reserved the right in the company to control the time, manner and method of the latter's work, and because the evidence authorized the finding that the agent was within the scope of his employment by the insurance company at the time of the collision which is the subject matter of this action.
3. There was not error in the overruling of the motion for a new trial filed by the Pioneer Company on the general grounds as shown in Headnote 2 above. There is no merit in any of the amended grounds of this motion.
Mrs. Ernest Lee Welch, Sr. brought an action to recover damages for the wrongful death of her minor son resulting from a two-car automobile collision caused by the defendants' alleged negligence. The parties defendant were Truman Hendrix, the driver of the allegedly family-purpose automobile in which the deceased was a passenger; Mrs. Nettie Y. Hendrix, Truman's mother; Raymond Ralston, the driver of the other automobile; American Family Life Assurance Co. and Pioneer American Insurance Co., of one or both of which companies defendant Ralston is alleged to have been the agent and to have been on company business at the time of the collision.
Defendant Ralston's contract with defendant American Family Co. provided in part as follows:
Defendant Ralston was appointed a 'general agent' of the American Family Life Assurance Co. of Columbus by a supplement to the 'Agent's Contract Agreement,' which provided additionally, in part, as follows:
Defendant Ralston's 'Regional Manager's Contract' with defendant Pioneer Co. contained provisions materially similar to the contract with the other defendant company with two controlling exceptions.
In addition to the documentary evidence, including the above contracts, defendant Ralston testified that he had no agreement with American Co. to pay his office rent; the company did not furnish anyone to supervise the training of agents nor instruct him as to the kind of people he could hire as agents; his telephone expense was to be paid by himself out of his draw from American Co.; he bought his business cards from said company, which never furnished him anything except selling aids; he never hired any other personnel and never had anyone to supervise; his business bank account was in his own name; he never worked a debit for American Co.; the automobile he was driving at the time of the collision was his own-the company had no connection with it and paid none of his automobile expense; he rented his own office space and, as far as the company was concerned, he was free to rent or not; his telephone listing in the name of the company was done by himself, not by any requirement of the company; the company had no control over his working hours nor whom he was to solicit; the company did not even require that he work and he did not work at all for them for an approximately three-month period; he was free to sell the policies of other insurance companies and was doing so, and held the position of regional manager for defendant Pioneer Co.
With respect to his relation with defendant Pioneer Co., the contract was, as stated, very similar to the American Family contract with the two controlling exceptions. One is that the Pioneer Co. contract does not contain the provision that defendant Ralston shall not be considered an agent of the Pioneer Co., but was intended to be an independent contractor. The other difference in the Pioneer Co. contract is a provision (Section 25) that the agent shall comply with all rules the company may have established, or may hereafter establish and shall perform all necessary duties as required in...
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