Boch v. New York Life Ins. Co.

• Decision Date: 05 February 1964
• Docket Number: No. 37972,37972
• Citation: 26 O.O.2d 47,196 N.E.2d 90,175 Ohio St. 458
• Parties: , 26 O.O.2d 47 BOCH, Appellee, v. NEW YORK LIFE INSURANCE CO., Appellant.
• Court: Ohio Supreme Court

Page 458

175 Ohio St. 458

196 N.E.2d 90, 26 O.O.2d 47

BOCH, Appellee, v. NEW YORK LIFE INSURANCE CO., Appellant.

No. 37972.

Supreme Court of Ohio.

Feb. 5, 1964.

Syllabus by the Court

1. An employer is liable for the negligence of his employee in operating the employee's own automobile only where it is established by a preponderance of the evidence

(1) that the employer had expressly or impliedly authorized the employee to use his own automobile in doing the work he was employed to do,

(2) that the employee was at the time of such negligence doing work that he was employed to do, and

(3) that the employee was subject to the direction and control of the employer in the operation of the employee's automobile while using it in doing the work he was employed to do.

2. As a matter of law, a master is not liable for the negligence of his servant while driving to work at a fixed place of employment, where such driving involves no special benefit to the master other than the making of the servant's services available to the master at the place where they are needed.

3. Where there is no evidence that an insurance soliciting agent was doing anything for his employer except driving from the agent's home to attend a regular weekly meeting that he was required to attend at his employer's office, the employer is not liable for any negligence of such agent in so driving.

Plaintiff instituted this action in the Common Pleas Court of Mahoning County against the defendant, New York Life Insurance Company, to recover for personal injuries claimed to have been caused by the negligence of the insurance company's agent, Marsh.

Plaintiff was injured when his automobile, which was stopped for a traffic signal in Youngstown, was struck from the rear by an automobile owned and driven by Marsh. At the time, Marsh was driving from his home in Steubenville to Youngstown, a distance of between 60 and 70 miles, to attend a training school for apprentice agents conducted by New York Life at its Youngstown office every Monday morning from 9:00 a. m. to noon. About two months before, Marsh had been appointed as an apprentice soliciting agent by New York Life pursuant to a written apprentice agent's agreement under which Marsh was to receive $200 a month plus commissions on insurance policies effected upon applications procured by him. The agreement read, in part:

'1. The apprentice agent shall devote his entire time and his best talents and energies to the business of this appointment shall diligently study the 'nylic educational course' and shall fulfill all the company's requirements in connection therewith, shall keep such records and make such reports as may be required and shall comply with any other educational and training requirements of the company * * *.

'2. The district within which the apprentice agent shall have permission to operate is such portions of the state of Ohio or such other territory as the company may direct from time to time. Until further notice, the apprentice agent shall conduct his business with the company through its Youngstown office located in the city of Youngstown * * *.'

The cause was tried to a jury, which returned a verdict for New York Life. Judgment was rendered for New York Life on that verdict.

On appeal, the Court of Appeals reversed that judgment and remanded the cause for a new trial. It stated as a reason for doing so that 'the trial court erred in submitting to the jury the question of agency between appellee [New York Life] and * * * Marsh, this court holding that reasonable minds cannot differ on the undisputed evidence and that agency was established as a matter of law.'

The cause is now before this court on appeal from the judgment of the Court of Appeals, pursuant to allowance of New York Life's motion to certify the record.

Manchester, Bennett, Powers & Ullman, Youngstown, for appellee.

Comus M. Beard, Youngstown, for appellant.

TAFT, Chief Justice.

Admittedly, Marsh was employed by New York Life as an agent when his negligence proximately caused plaintiff's injuries. However, before plaintiff can recover from New York Life, plaintiff must establish also that

(1) New York Life had expressly or impliedly authorized Marsh to use his automobile on its business,

(2) Marsh was at the time driving on the business of New York Life, and

(3) Marsh was subject to the direction and control of New York Life in so driving.

In other words, an employer is liable for the negligence of his employee in operating the employee's own automobile only where it is established by a preponderance of the evidence

(1) that the employer had expressly or impliedly authorized the employee to use his own automobile in doing the work he was employed to do (Metropolitan Life Ins. Co. v. Huff [1934], 128 Ohio St. 469, 191 N.E. 761; Miller v. Metropolitan Life Ins. Co. [1938], 134 Ohio St. 289, 293, 16 N.E.2d 447),

(2) that the employee was at the time of such negligence doing work that he was employed to do (Miller v. Metropolitan Life Ins. Co., supra, p. 294 of 134 Ohio St., p. 449 of 16 N.E.2d; Amstutz, Adm'r, v. Prudential Ins. Co. of America [1940], 136 Ohio St. 404, 26 N.E.2d 454; Senn, Adm'x, v. Lackner [1952], 157 Ohio St. 206, 105 N.E.2d 49), and

(3) that the employee was subject to the direction and control of the employer as to the operation of the employee's automobile while using it in doing the work he was employed to do (so that the relation between the employer and employee in the driving of the automobile would be the relationship of principal and agent or of master and servant as distinguished from the relationship of employer and independent contractor), (Miller v. Metropolitan Life Ins. Co., supra, pp. 291, 292 of 134 Ohio St., pp. 448, 449 of 16 N.E.2d; Amstutz v. Prudential Ins. Co., supra, pp. 406, 408 of 136 Ohio St., pp. 455, 456 of 26 N.E.2d). See Councell v. Douglas (1955), 163 Ohio St. 292, 126 N.E.2d 597 (holding, in paragraph three of the syllabus, that 'right reserved by employer to direct as to the quantity of work to be done, or the condition of the work when completed, is not a right to control the mode or manner of doing the work so as to justify the conclusion that the relationship * * * is either * * * principal and agent or master and servant'), Behner v. Industrial Commission (1951) 154 Ohio St. 433, 96 N.E.2d 403 (holding, in paragraph two of the syllabus, that one who contracts to transport freight for trucking company 'by means of his own truck and equipment, serviced and maintained by him, to a designated destination for a fixed compensation, and who has the right to choose the route to be taken and to control the details of the transportation enterprise, including times and hours of employment, is an 'independent contractor' and not an 'employee"), and Hughes v. Cincinnati & S. Railway Co. (1883), 39 Ohio St. 461 (holding, in paragraph five of the syllabus, that 'when an employer retains control over the mode and manner of doing a specified portion of the work only, and an injury results to a third person from the doing of some other portions of the work, the contractor alone is liable').

See annotation on 'Liability of Insurance Company for Negligent Operation of Automobile by Insurance Agent or Broker,' 36 A.L.R.2d 261.

In the instant case, there is no evidence that Marsh was doing anything for New York Life when plaintiff was injured except going from his home in Steubenville to attend the regular Monday morning meeting that he was required to attend at the Youngstown office of the company.

The evidence in the instant case necessarily requires the conclusion that, on every Monday morning, the Youngstown office of New...