Amstutz v. Prudential Ins. Co. of America

• Decision Date: 20 March 1940
• Docket Number: 27774.
• Citation: 26 N.E.2d 454,136 Ohio St. 404
• Parties: AMSTUTZ v. PRUDENTIAL INS. CO. OF AMERICAN.
• Court: Ohio Supreme Court

26 N.E.2d 454

136 Ohio St. 404

AMSTUTZ v. PRUDENTIAL INS. CO. OF AMERICAN.

No. 27774.

Supreme Court of Ohio

March 20, 1940

Syllabus by the Court.

1. The return trip of an insurance agent, who, in the course and within the scope of his employment, drives to a plant outside of his 'debit' for the purpose of making a required collection of a premium, is to be deemed as much within the course and scope of his employment as was his outgoing trip.

2. A deviation by a servant will not, as a matter of law, be deemed to be an abandonment of his service to his employer unless such deviation is so divergent from his regular duty that its very character severs the relationship of master and servant.

On June 17, 1937, at about five o'clock in the afternoon, Ernie E. Amstutz received injuries, which later resulted in his death, when his motorcycle collided with the automobile of one Francis Shultz, an insurance collector and solicitor of appellant, The Prudential Insurance Company of America, at the intersection of Union and Springs streets in Lima, Ohio.

The duties of Francis Shultz included the collection of insurance premiums in a 'debit' assigned to him in the northeast section of Lima. He was an insurance agent and also solicited insurance for the appellant company. He had formerly worked for the Lima Packing Company, which was outside of his debit.

On the day of the accident, Shultz drove his own automobile, which he used in connection with his work for the appellant company, to the Lima Packing Company to see Lawrence Cox and to collect a premium from him. He talked to Cox for about five minutes and then went through different departments of the packing plant and for twenty to twenty-five minutes visited with employees with whom he was acquainted. He then left the plant and drove his automobile toward his home and the accident occurred en route.

An action for damages for wrongful death was instituted against appellant on the theory of respondeat superior. The petition charged negligence on the part of Shultz and alleged that, at the time of the accident, he was an agent of the appellant company; that he was then engaged in the business of his employer and acting within the scope of his employment.

The answer, after making formal admissions, contained, in substance, a general denial and an averment pleading sole negligence.

At the close of the appellee's evidence, appellant made a motion to arrest the testimony from the jury and to enter judgment for the appellant, which motion was overruled. At the close of all the evidence, appellant moved to arrest the testimony from the jury and to enter judgment in its favor, which motion was likewise overruled. The jury returned a verdict for the appellee, following which the appellant moved for judgment notwithstanding the verdict of the jury, which motion was likewise overruled and judgment rendered on the verdict.

On appeal, the Court of Appeals affirmed the judgment of the trial court, and the cause is now here by reason of a certificate of conflict with the decision in Plost v Avondale Motor Car Co., 55 Ohio App. 22, 8 N.E.2d 441.

Cable & Cable, of Lima, for appellant.

Meredith & Meredith, of Lima, for appellee.

DAY Judge.

The controlling question in this case is whether the trial court erred in overruling defendant's motion for a directed verdict.

Appellant contends that the evidence adduced by appellee was insufficient in law to prove the existence of agency between appellant and Shultz; that, on the contrary, the evidence proved, or tended to prove, the relationship to be that of employer and independent contractor; that, therefore, the trial court was not warranted in submitting the case to the jury.

In Miller v. Metropolitan Life Ins. Co., 134 Ohio St. 289, 16 N.E.2d 447, 448, this court said that: '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 principal 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.'

The record discloses the existence of an agreement between appellant and Francis Shultz, the driver and owner of the automobile, which reads, in part, as follows:

'In consideration of my appointment as an agent of The Prudential Insurance Company of America, I do hereby agree as follows:

'Sec. 1. To devote my entire time to the business of the company; to promote its success and welfare and to conform to and abide by the instructions, rules and requirements of the company.' (Italics ours.)

The record discloses the following testimony of Mr. A. E. Shindollar, assistant superintendent of the appellant company:

'Q. I believe you gave Mr. Shultz his instructions, did you not, Mr. Shindollar? A. I think I did.

'Q. What if anything did you tell him about his general duties? A. Well, my instructions with Mr....