American Sav. Life Ins. Co. v. Riplinger

• Decision Date: 02 May 1933
• Citation: 249 Ky. 8,60 S.W.2d 115
• Parties: AMERICAN SAV. LIFE INS. CO. et al. v. RIPLINGER.
• Court: Kentucky Court of Appeals

60 S.W.2d 115

249 Ky. 8

AMERICAN SAV. LIFE INS. CO. et al. v. RIPLINGER.

Court of Appeals of Kentucky

May 2, 1933

Appeal from Circuit Court, Jefferson County, Common Pleas Branch Second Division.

Action by Charles Riplinger, by next friend, against the American Savings Life Insurance Company and another. Judgment for plaintiff, and defendants appeal.

Reversed and remanded.

Woodward Hamilton & Hobson, of Louisville, for appellants.

Robert G. Wulf and Beckham Overstreet, both of Louisville, for appellee.

RICHARDSON Justice.

This appeal requires a review of the trial of an action for personal injury inflicted by the operation of an automobile on a street in the city of Louisville, Ky. in which a judgment was rendered in favor of Charles Riplinger against Andrew J. Owens and the American Savings Life Insurance Company for $1,050.

Andrew J. Owens was a solicitor, or agent, regularly licensed, and engaged in selling insurance, on commission, for the American Savings Life Insurance Company, a foreign corporation engaged in business in this city. At the time Riplinger suffered his injury, Owens was traveling on the street in an automobile owned by his wife, from the operation of which Riplinger was injured. Owens at the time was a licensed agent of the American Savings Life Insurance Company. The license was issued by the insurance commissioner of Kentucky. The license recites that Owens "is hereby licensed to transact authorized business of this company in the said commonwealth." It fixed the status of Owens as the agent of the insurance company as required by the commonwealth. Section 633, Ky. Statutes. The statute authorizes its issuance, and prescribes a penalty for engaging in business without it. It is not the intendment or purpose of this section, or the license issued thereunder, to deal with, or fix, the liability of the insurance company to a member of the traveling public for an injury resulting from the negligence of a licensee while operating an automobile on a street or highway. The proof of the license is pertinent only for the purpose of showing a relationship between the licensee and the insurance company. It is not, except to that extent, an aid in determining the liability of the company to Riplinger. Its liability must be determined by the contractual relations existing at the time between Owens and the insurance company as it is fixed by the contract of employment.

The doctrine of liability of the master for the wrongful acts of the servant or agent is predicated upon the maxims "respondeat superior" and "qua facit per alium, facit per se." In fact, it rests upon the doctrine of agency. 18 R. C. L. § 247. The difference between an agent and a servant is aptly stated in a note at the bottom of page 423 of 2 C.J., wherein it is stated:

"Agency, properly speaking, relates to commercial or business transactions, while service has reference to actions upon or concerning things. Service deals with matters of manual or mechanical execution. An agent is the more direct representative of the master, and clothed with higher powers and broader discretion than a servant. Mechem, Agency, §§ 1, 2. The terms 'agent' and 'servant' are so frequently used interchangeably on the adjudications that the reader is apt to conclude they mean the same thing. We think however that the history of the law bearing on the subject shows that there is a difference between them. Agency, in its legal sense always imports commercial dealings between two parties by and through the medium of another. An agent negotiates or treats with third parties in commercial matters for another." Kingan & Co. v. Silvers, 13 Ind.App. 80, 37 N.E. 413, 416.

The words 'agent' and 'servant' in a general sense both apply to persons in the service of another. Turner v. Cross, 83 Tex. 218, 18 S.W. 578, 15 L. R. A. 262. The words 'agent' and 'servant' are not wholly synonymous; both however relate to voluntary action under employment, and each expresses the idea of service. The service performable by a servant for his employer may be inferior in degree to work done by an agent for his principal. A servant is a worker for another under an express or implied employment; so also is an 'agent' only he works, not only for, but in the place of, his principal. People v. Treadwell, 69 Cal. 226, 10 P. 502."

A servant is a person subject to the command of his master as to the manner in which he shall do his work, and the master is the one who not only prescribes the work but directs, or may direct, the manner of doing the work. Bowen v. Gradison Const. Co., 236 Ky. 270, 32 S.W.2d 1014; Jarvis v. Wallace, 139 Va. 171, 123 S.E. 374. A master within the doctrine of respondeat superior is the one who cannot only order the work, but also how it shall be done. Carter v. King County, 120 Wash. 536, 208 P. 5. The doctrine applies only where the relationship of master and servant exists at the time and in respect to the thing causing the injury, and from which it arose (Tilburne v. Burton, 86 Cal.App. 627, 261 P. 334; Martin v. Greensboro-Fayetteville Bus Line, 197 N.C. 720, 150 S.E. 501; Kennedy v. Wolf, 221 Ky. 111, 298 S.W. 188), and then only when the one sought to be charged has some right in some way to control the conduct of the party having caused the injury (Trachtenberg v. Castillo [Tex. Civ. App.] 257 S.W. 657).

In considering and determining the liability of the company for the wrongful acts of Owens, the test recognized by every system of jurisprudence, apparently, is whether there was authority expressed or implied for doing the act which caused Riplinger's injury. Section 252 of 18 R. C. L.; Cincinnati, N. O. & T. P. R. Co. v. Rue, 142 Ky. 694, 134 S.W. 1144, 34 L. R. A. (N. S.) 200; Reynolds' Adm'r v. Black Mountain Corp., 240 Ky. 673, 42 S.W.2d 916. If Owens had neither expressed nor implied authority for doing the act, but represented the company only as to the result of the work, and not as to the means whereby it was to be accomplished, he was and is an independent contractor, for whose wrongdoing the company is not liable. Bowen v. Gradison Construction Company, 206 Ky. 270, 32 S.W.2d 1014; George v. Chaplin, 99 Cal.App. 709, 279 P. 485; Gorman v. A. R. Jackson Kansas City Showcase Works Co. (Mo. App.) 19 S.W.2d 559; Producers' Lumber Co. v. Butler, 87 Okl. 172, 209 P. 738; Tankersley v. Webster, 116 Okl. 208, 243 P. 745; See v. Leidecker, 152 Ky. 724, 154 S.W. 10; Louisville & N. R. Co. v. Smith's Adm'r, 134 Ky. 47, 119 S.W. 241.

Whether the relationship of Owens was one of employment of an independent contractor is not to be determined by a general rule of law, but by the facts in the case. Marsh v. Beraldi, 260 Mass. 225, 157 N.E. 347. To determine the liability of the insurance company to Riplinger we are required to apply general principles to the proven facts.

At the time Riplinger was injured, William B. Bannon had been induced by Owens to agree to take an assignment of a policy issued by the company which Owens had sold for it to Jillson Smith. The paper evidencing the assignment was sent by the company to Owens, and it and the policy itself were to be delivered by Owens on the payment of the premium by Bannon. He was returning to his home for his dinner and for the purpose of procuring the assignment and the policy which he had previously left at his home, with the intention of having Bannon, in the afternoon, to accept the assignment and pay the premium, when he would deliver it to him and the policy to Smith, and, while making this trip in the automobile of his wife, Riplinger was injured by the automobile which Owens was himself operating. The premium on the policy was $200. Owens' commission was $120, and the company's portion of it was $80, which he intended to collect and remit to it. It was the custom, if not the contract, of Owens and the company for him to collect the premium and remit the company's portion. The license issued to him by the insurance commissioner is sufficient to show there existed at that time a relationship between him and the insurance company. The relationship then existing between him and the company, which fixes the liability of the insurance company to Riplinger, must be determined by the evidence adduced thereon. The contract between Owens and the insurance company was approved April 15, 1931. If it was reduced to writing, it does not appear in the record. It is admitted that the contract authorized him to sell, on commission, insurance for the company. It provided that he should not represent any other company during the life of the contract. The company reserved the right to terminate the contract or to discharge Owens. In the selling of insurance under the authority of his contract with the company, Owens could go or come in any manner he chose. He did not have to drive an automobile in order to comply with his contract. He was not required by the company to do so. His mode or means of travel in the selling of insurance, whether on foot, by street car, or automobile or other vehicle, was a matter left entirely to Owens. He was not furnished an automobile by the company. He received no compensation for the use of his wife's automobile, nor for his services, except a commission on each policy he was able to sell. He could go to work at whatever hour he desired and work as he desired, either day or night. The company did not exercise any control over the manner in which he should travel, or as to where he should go or spend his time when selling or not selling insurance. It was left to him entirely as to how or when he would travel or where he would go to sell its policies, but it had the right to hire and fire him. Notwithstanding his contract did not permit him to represent any other company, at...