Carter's Dependents v. Palmetto State Life Ins. Co.

• Citation: 38 S.E.2d 905,209 S.C. 67
• Decision Date: 02 August 1946
• Docket Number: 15861.
• Parties: CARTER'S DEPENDENTS v. PALMETTO STATE LIFE INS. CO. et al.
• Court: United States State Supreme Court of South Carolina

38 S.E.2d 905

209 S.C. 67

CARTER'S DEPENDENTS v. PALMETTO STATE LIFE INS. CO. et al.

No. 15861.

Supreme Court of South Carolina

August 2, 1946

Henry H. Edens, of Columbia, and J. Frank Eatmon, of Kingstree, for appellants.

Ashley C. Tobias and Roger M. Heyward, both of Columbia, for respondent.

TAYLOR Justice.

This case arose out of a claim by dependents for death benefits arising under the Workmen's Compensation Act. Act July 17, 1935, 39 Stat. at Large, p. 1231 et seq. Deceased R. D Carter was connected with the Palmetto State Life Insurance Company as an industrial insurance agent, under the terms and conditions of a written contract designated 'Agent's Agreement' and was assigned debits in the Sumter District, which included Williamsburg County. On April 18 1944, while traveling in his automobile and working one of these routes or debits, he was accidentally killed by an A C. L. Railroad train at a crossing near Kingstree, South Carolina. The claimants, his widow and minor child, seek to recover against Palmetto State Life Insurance Company as employer, and Glens Falls Indemnity Company as carrier.

A hearing was held and an award made by Commissioner John H Dukes on November 9, 1944, by which claimants were awarded benefits at the rate of $25 per week for a period of 350 weeks, or $6,000, including $200 funeral benefits--dependents to share and share alike. In due course, an appeal was taken to the Full Commission who unanimously affirmed the award of the Hearing Commissioner. Within due time, an appeal to the Court of Common Pleas was noticed and perfected and the case was heard before the Honorable Philip H. Stoll, Judge of the Third Judicial Circuit, who filed an Order dated June 18, 1945, reversing the Full Commission award and directing judgment in favor of Respondents. From this Order, claimants now appeal to this court upon exceptions which raise three questions necessary for determination of this case.

(1) Was the deceased an employee of the Palmetto State Life Insurance Company within the meaning of the South Carolina Workmen's Compensation Act?

(2) Was the Palmetto State Life Insurance Company operating under the South Carolina Workmen's Compensation Act at the time this claim arose?

(3) Is carrier liable under the terms of its policy?

Section 2(b) of the South Carolina Workmen's Compensation Act provides that the term employee means every person engaged in an employment under any appointment or contract of hire or apprenticeship, expressed or implied, oral or written.

The test is one of control. 'In determining whether a person is an employee within a workmen's compensation act, or an independent contractor, the most frequently cited test, which is cited in various ways is that of control, he being an employee if he is subject to the control of the party for whom the work is done, and an independent contractor if he is not. * * * A number of decisions are broadly on the basis, or broadly hold, that a worker is an independent contractor where he has, and an employee where the party for whom the work is being done has, the right to direction of the work.' 71 C.J. 449, Page 184. 'Whether or not the employer has the right of control is to be determined from the contract of employment.' 71 C.J. 456, Page 185.

When the deceased commenced his work with the Palmetto State Life Insurance Company, he took over an already established route or debit for the collection of premiums on policies previously issued by the Company, as well as to canvass for new business and collect premiums on the policies obtained or transferred to him. It was his duty to collect on all policies in his debit. He had a definite number of policies to collect on and report to the company daily such collections upon forms provided by it.

Paragraph 3 of the contract between the deceased and the company reads as follows: '3. To conform to the rules and regulations of the company in force at the time of this Agreement, and hereafter as they may be made; and, to hold all books, papers, printed material and supplies as the property of the company, the same to be delivered on demand to my superior officer or to anyone whom he designates, or upon the termination of this Agreement and further agree to give my full time to the service of the Company to not engage in any other occupation while in the employ of the Company, to account for and turn over, either daily or weekly, as may be required, to the Company or anyone delegated to receive it, all money collected by me, and to do all of the work required by the Company in any Department of its business by and according to its rules and regulations.'

His full time was that of the company to do all work required by it. He was assigned a definite territory with definite policy holders to be called on and the results of his labors were to be handled in a definite manner.

Respondents contend that the activities of the deceased were controlled by them only in a general way. That is, they did not tell him definite places to be at definite times, that he was required to contact the policy holders in his territory but that this could be done at his convenience at such times as he saw fit, therefore he was an independent contractor. The following letter dated January 25, 1940, is some evidence of the relationship then existing between deceased and the Palmetto State Life Insurance Company.

'To All Agents

Palmetto State Life Insurance Company

Gentlemen:

For several years we have had in effect a cooperate plan of group insurance. During that period of time, claim payments have thoroughly demonstrated the value and wisdom of such a plan. You provide food, clothing and shelter for yourself and your family from your pay check. We all do that. We must all make some provision if that pay check is stopped either through death or disability. As an employee of this Company you recognize these needs--for selling such needs is your job and means a livelihood.

Realizing the need of our employees for income to replace that lost through disability, we have arranged to provide a weekly indemnity plan of insurance for you in the event of disability preventing you from working. This benefit will be paid you weekly while disabled and will assist you materially in providing income needed in this emergency.

Equally as importent to you is the problem of financing the expense resulting from hospitalization due to accident or sickness, whether it be yourself or members of your family. In order to assist you in meeting these hospital and surgical expenses on yourself and your dependents, we have provided a plan of hospital and surgical expense insurance.

As an employee of the Palmetto State Life Insurance Company you will be elegible at the end of thirty days following your employment to protection under our group insurance plan with the General American Life Insurance Company, of St. Louis. A description of the coverage for yourself and for members of your family, is outlined on the attached sheets.

An application card is attached for your convenience in applying for these benefits now, to become effective after you have been with our Company for 30 days. No medical examination will be required nor will you be asked any questions in regard to your physical condition or that of your family if application is made now. Since your Company contributes generously toward the cost of this insurance so that you can have its benefits at a low cost, we expect you to make application for this insurance at once. That part of the cost you are expected to pay will be deducted monthly from your pay check for convenient remittance to the insurance company.

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