Combined Ins. Co. of America v. Sinclair

• Decision Date: 01 September 1978
• Docket Number: No. 4819,4819
• Citation: 584 P.2d 1034
• Parties: COMBINED INSURANCE COMPANY OF AMERICA, Appellant (one of Defendants below), v. Carol SINCLAIR, Appellee (Plaintiff below).
• Court: Wyoming Supreme Court

Page 1034

584 P.2d 1034

COMBINED INSURANCE COMPANY OF AMERICA, Appellant (one of Defendants below), v. Carol SINCLAIR, Appellee (Plaintiff below).

No. 4819.

Supreme Court of Wyoming.

Sept. 1, 1978.

William S. Bon and Robert H. McCrary, of Schwartz, Bon & McCrary, Casper, for appellant.

Joseph E. Vlastos, of Cardine, Vlastos & Reeves, Casper, and R. C. Yonkee, Thermopolis, for appellee.

Before GUTHRIE, C. J., and McCLINTOCK, RAPER, THOMAS and ROSE, JJ.

GUTHRIE, Chief Justice, and McCLINTOCK and RAPER, Justices, concur in the majority opinion authored by ROSE, Justice.

McCLINTOCK, Justice, filed a concurring opinion, in which GUTHRIE, Chief Justice, joins.

THOMAS, Justice, filed a dissenting opinion.

ROSE, Justice.

NATURE OF THE ACTION

This appeal comes from a civil action commenced by Carol Sinclair, in which she asked damages for personal injuries sustained in a two-motor-vehicles accident which occurred at approximately 12 midnight on Sunday, July 28, 1974. Miss Sinclair filed the suit against Combined Insurance Company, Kent Scott Beardall, and Katherine C. Rush, Administratrix of the Estate of Edward Danner Boone, Deceased. Edward Boone was the driver of the automobile in which Carol Sinclair was a passenger, and Mr. Beardall was the driver of the oncoming car which was involved in the accident. Carol sought to recover against defendants Beardall and Boone for their alleged wrongdoing, while asking damages against the Insurance Company upon the theory that Mr. Boone was its employee as a vice principal or superior servant and was, at the time of the accident, within the scope of his employment. She, therefore, contended that the negligence of Mr. Boone was imputable to the appellant Insurance Company employer. We are only concerned here with Carol Sinclair's action against Combined Insurance, against which defendant the jury assessed damages in the sum of $350,000.00. We will affirm the district court's judgment entered upon this verdict.

FACTS

I. The Accident:

Carol Sinclair was severely injured in a collision between two automobiles which occurred on U.S. Highway 89, approximately five miles north of Afton, Wyoming. At the time, she was a passenger in a 1973 Datsun driven by Edward Boone, who was traveling in a southerly direction toward Afton. The Datsun collided head on with another car driven by Kent Scott Beardall, who was traveling in a northerly direction. As a result of the collision, Edward Boone was killed and Miss Sinclair, Mr. Beardall, and the passenger in the latter's vehicle were injured. Mr. Beardall has no recollection of the accident, and Carol Sinclair and the passenger in the Beardall vehicle were both asleep at the time of the collision. Therefore, the evidence concerning the accident itself is necessarily confined to the physical facts, together with the testimony of the investigating officer, Highway Patrolman Boyd Roberts.

The physical facts attendant upon this impact, as evidenced by the photographs and the testimony of Patrolman Roberts, together with the sketch or plat which he prepared to illustrate his testimony, establish that the collision occurred on a curve in the northbound lane of traffic, which the Beardall vehicle was lawfully occupying. The curve was structured in a way which compelled a southbound automobile traveling in the direction of the Boone Datsun to turn to the driver's right. It appeared that Boone straightened out the curve and the vehicles came together in a head-on fashion on the wrong side of the road for Boone, with the major impact being to the right-side-front, or passenger-front of each automobile.

In the course of his investigation, Patrolman Roberts requested the assistant coroner to take a sample of blood from the body of Boone and deliver it to the Wyoming Public Health Services Laboratory. It is contended that this was done, although Roberts did not witness the taking of the sample and the coroner did not testify. The report of the test performed disclosed a blood-alcohol level of .22% Ethyl alcohol and this report was received in evidence. According to Wyoming criminal statutes, this blood-alcohol content raises the presumption that the driver was under the influence of alcohol, a fact concerning which the jury was instructed by the court. The record is unclear as to whether Miss Sinclair's attorney or defendant Beardall's attorney requested this instruction, but this is unimportant for purposes of considering the questions relevant thereto.

II. Combined Insurance Company of America:

Combined Insurance Company is principally engaged in selling health and accident insurance throughout the United States. It has no local offices, since its insurance is sold mostly through personal public contact. This involves two principal sales features, namely, the renewal of existing policies and the sale of new policies. Of critical importance to our consideration is the renewal of existing six-month health and accident policies.

In order to carry out this personal-contact sales schedule, representatives of Combined Insurance Company are formed into "teams," with a Sales Manager as the supervisor of each team. The success of the program renders critical the maintaining of a full team complement, as well as the employment of effective sales techniques. The Company provides a computerized printout list of existing policyholders to each Sales Manager, and each person listed on the printout must be contacted by the team members. The various employees are paid on a commission basis, with the Sales Manager receiving cash and incentive bonuses, together with a percentage of the income from the policies renewed or those sold for the first time by the members of his team.

When hired, the employee is required to attend a two-weeks school at the expense of the Company in the course of which the members of the class participate in intensified training sessions where they are introduced to the benefits of the various sales techniques developed by the Company over a span of fifty-two years. When this instruction is completed, the trainees are tested and directed to utilize these newly acquired sales methods as they go about selling the appellant's insurance. Immediately following the completion of the training school program, the new employees take their respective State insurance examinations under the sponsorship of Combined Insurance Company. Upon obtaining his or her license, and being assigned to a particular team, the new salesperson then embarks upon a one-month "in the field" training schedule under the tutelage of the Sales Manager.

III. Edward Danner Boone Sales Manager:

At the time of his death, Edward Boone was a Sales Manager for Combined Insurance Company with a ten-county area in Western Wyoming as his territory. In addition to being Sales Manager for this area with authorization to act in appellant's behalf subject to its rules and regulations, his Superior's instructions, and the terms of his contract, Mr. Boone's position was also designated as "Sales Manager of the Superior Policy Department."

One of his major responsibilities was the day-to-day supervision of the sales team and the assignment of the computerized printout cards having to do with policy renewals. With respect to Mr. Boone's supervision of his team members, a schedule was furnished him by the Company with direction that it be followed relative to the various communities to which the team would travel and the period of time it would work within each community. These sales trips were calculated to coincide with the expiration of the six-month policy period concerning existing health and accident insurance policies and it was, therefore, essential to the Company's success that the team efforts be carefully coordinated with these expiration dates. While Mr. Boone did not hire the members of the team a responsibility of the District Manager it was Mr. Boone's duty as Sales Manager to supervise his team, arrange for accommodations and plan the advance work for the next community in which the team would be selling.

The team members would meet on Sunday evening in the community where the selling was scheduled to take place during the upcoming week, and Mr. Boone would make the renewal contract assignments at that time. Each evening, after the day's contacts had been made, the members would meet with Mr. Boone for the purpose of advising with him about any problems they had encountered or which they or he anticipated. Boone would, in turn, meet weekly with the District Manager to go over the past week's sales and to review the next week's schedule. Mr. Boone, as well as each member of the team, was required by Combined to have his or her own motor vehicle for use in carrying out the appellant's sales-program.

IV. Carol Sinclair:

On July 28, 1974, Carol Sinclair was a 19-year-old woman employed as a salesperson by Combined Insurance Company and engaged in the renewal and sale of health and accident insurance. Miss Sinclair and her friend, Janet Harutyk, were hired at about the same time in 1974. They attended training school together and were graded the highest in their class, after which they took and passed the Wyoming insurance examination and joined Mr. Boone's sales team. Carol had difficulty selling insurance, and Janet decided to leave the Company, which she did on July 27, 1974. Miss Sinclair had lost a sale that day and, with her friend leaving, she, too, was seriously considering quitting her job with Combined Insurance. She confronted Mr. Boone with this possibility and he urged her to stay, representing that he would immediately commence her field training and assuring her that, with his help, her sales would increase.

Mr. Boone then advised Miss Sinclair that he had to go to Jackson that day and asked her to accompany him, promising that he would, during the trip, work with her on the presentation speeches and rebuttal arguments which she was to employ in her...