American Savings L. Ins. Co. v. Riplinger

• Citation: 249 Ky. 8
• Parties: American Savings Life Insurance Company et al. v. Riplinger.
• Decision Date: 02 May 1933
• Court: United States State Supreme Court (Kentucky)

249 Ky. 8

American Savings Life Insurance Company et al. v. Riplinger.

Court of Appeals of Kentucky. Common Pleas Branch, Second Division.

Decided May 2, 1933.

1. Automobiles. — In action against insurance company for agent's negligent operation of automobile, proof of agent's license is

pertinent only to show relationship with company, liability being determined by contractual relationship (Ky. Stats., sec. 633).

2. Master and Servant. — Doctrine of master's liability for servant's wrongful acts rests on doctrine of agency.

3. Principal and Agent. — "Servant" deals with matters of manual or mechanical execution, while "agent" is more direct representative of master clothed with higher powers and broader discretion.

4. Master and Servant. — Doctrine of master's liability for servant's wrongful acts applies only where master-servant relationship existed at time and in respect to thing causing injury, and master had right of control.

5. Master and Servant. — In determining master's liability for servant's acts, test is whether there was authority for doing act causing injury.

6. Master and Servant. — One representing another only as to result of work and not as to means whereby it is to be accomplished is "independent contractor," for whose wrongdoing such other is not liable.

7. Master and Servant. — Whether relationship is one of employment or independent contractor is determined by facts of case, not general rule of law.

8. Master and Servant. — Insurance agent not controlled by company except as to result of work was "independent contractor," as regards company's liability for his negligence.

9. Master and Servant. — In determining master's liability for servant's acts, other considerations are subordinate to right to control means by which result was accomplished.

10. Master and Servant. — Method of payment, right to discharge, right to control result of work, and fact that employee was engaged in no other employment are to be considered in determining master's liability for servant's wrong.

11. Master and Servant. — Person may be servant as to one part of undertaking and independent contractor as to other parts.

12. Negligence. — Negligence may be alleged generally.

13. Negligence. — Under general allegation of negligence, plaintiff may prove any negligent act of defendant.

14. Negligence. — Under allegation of special acts of negligence or charge of general negligence coupled with specific acts, plaintiff is confined to proof of specific acts.

15. Negligence. — Where general allegation of negligence is followed by explanatory charge of specific acts, plaintiff is confined to proof of specific acts.

16. Automobiles. — Petition alleging injury by automobile held to contain allegations of general negligence followed by allegation of specific acts, limiting plaintiff to proof of specific acts.

The petition alleged that defendant "had carelessly and negligently driven said automobile onto, against and upon this plaintiff; the plaintiff was thrown down violently and with great force to and upon said street * * * and thereby injured and bruised * * * and was driving said automobile in a grossly careless manner without giving to plaintiff any signal or warning of the approach of his said automobile and without chance or opportunity of avoiding being run onto or over by said automobile."

17. Trial. — Instructions should be strictly appropriate to issues in automobile accident case.

18. Trial. — Only issues raised by pleadings should be submitted in automobile accident case.

19. Trial. — In automobile accident case, instructions failing to limit recovery to thing alleged in petition were erroneous.

The only specific act of negligence set out in the petition was defendant's failure to give warning or signal, while instructions authorized verdict if jury believed defendant failed to operate automobile at reasonable rate of speed, to have it under reasonable control, to observe traffic light, or to exercise ordinary care not to strike plaintiff.

Appeal from Jefferson Circuit Court.

WOODWARD, HAMILTON & HOBSON for appellants.

ROBERT G. WULF and BECKHAM OVERSTREET for appellee.

OPINION OF THE COURT BY JUDGE RICHARDSON.

Reversing.

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. sec. 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, secs. 1, 2. The terms `agent' and `servant' are so frequently used interchangeably in 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, 236 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...