Gulf Like Ins. Co v. Mcdaniel

• Decision Date: 15 July 1947
• Docket Number: No. 31647.,No. 31589.,31589.,31647.
• Citation: 43 S.E.2d 784
• Parties: GULF LIKE INS. CO. v. McDANIEL et al. DAVIS. v. HOLBROOK.
• Court: Georgia Court of Appeals

43 S.E.2d 784

GULF LIKE INS. CO.

v.McDANIEL et al.

DAVIS.

v.HOLBROOK.

No. 31589.

No. 31647.

Court of Appeals of Georgia,

Division Nos. 1 and 2.

July 15, 1947.

Rehearing Denied July 29, 1947.

Syllabus by the Court.

The finding of the jury that the relation of master and servant existed between the insurance company and its agent, the driver of the automobile inflicting the fatal injuries upon the plaintiff's husband, was supported by the evidence; and the verdict for the plaintiff against both of the defendants was authorized, and the court did not err in overruling the motion for a new trial.

FELTON, J., dissenting.

Error from Superior Court, Cobb County; J. H. Hawkins, Judge.

Death action by Jennie McDaniel against Gulf Life Insurance Company and another. Judgment for the plaintiff, and the named defendant brings error.

Affirmed.

Smith & Long, T. J. Long, Joseph D. Tindall, and Richard Maxwell, all of Atlanta, for plaintiff in error.

Dorsey & Hames and Gordon B. Gann, both of Marietta, for defendant in error.

PARKER, Judge.

Mrs. Jennie McDaniel sued James A. Rainwater and Gulf Life Insurance Company. Her action was for damages for the death of her husband, Frank McDaniel, who died from injuries received when he was struck by an automobile owned and being driven by the defendant Rainwater on May 17, 1946. The jury returned a verdict for $7,000 for the plaintiff and against both defendants. Gulf Life Insurance Company made a motion for a new trial which was amended by the addition of one special ground which merely amplified the general grounds, and the over-ruling of that motion is excepted to in this court.

It is conceded by counsel for the parties that only one issue is presented for the consideration of this court. Counsel for Gulf Life Insurance Company contend that the defendant Rainwater was, at the time he injured the plaintiff's husband, an independent contractor and was not the servant of the company so as to make it liable for his negligence under the doctrine of respondeat superior. It seems to be agreed that if the relation of master and servant existed between the insurance company and Rainwater the company would be liable to the plaintiff, but if that relationship did not exist and Rainwater was an independent contractor the company would not be liable.

Rainwater was an agent and employee of Gulf Life Insurance Company in Marietta, Georgia, with authority to take applications for industrial life insurance policies within a prescribed area in Marietta and Smyrna, and for ordinary life insurance anywhere within the State of Georgia. In connection with the industrial life insurance business he also made collections of premiums weekly for the company on policies in force within a prescribed area known as a "debit." The contract under which Rainwater was employed was as follows: "In consideration of having been appointed an independent contracting agent of the Gulf Life Insurance Company of Jacksonville, Florida, I hereby agree to comply with all the rules and regulations, written or otherwise, of the company now in effect or subsequently established; to use my utmost endeavors to promote the company's welfare; to handle collections and canvass for new business faithfully and thoroughly; to make prompt remittances of all collections. To accept, as full remuneration for services, commissions on collections and new contracts written by me, which shall be computed on fixed percentages promulgated by the company from time to time, I understand and agree that all commission percentages are subject to change without notice. I further agree that any advance or advances to me by the company shall not be considered a salary or guarantee. I acknowledge the right of the company to revoke this appointment at its pleasure upon one week's notice. I recognize that the business belongs solely to the company and all records and supplies are held by me in trust and same shall be delivered to the company upon the termination of this agreement for any cause; that neither said business nor this agreement is assignable. I further agree to furnish the company, at my own expense, a good and sufficient bond and to pay all licenses required by law."

It appears from the evidence that Rainwater worked in the office of the company all of Saturday morning, the day of the injury, and in the afternoon he drove a car owned by himself and used by him in his business to Roswell, Georgia, some "10 or 15 miles" from Marietta, for the purpose of calling upon a prospect for ordinary life insurance. The town of Roswell was not in Rainwater's debit area as to industrial insurance but was within his territory as to ordinary life insurance. Upon returning to Marietta late in the afternoon Rainwater was going to the office of the company to get certain forms he needed to use in reviving some insurance policies which had lapsed in his debit. He intended to see certain policy holders on Saturday evening and needed these particular forms. He was on his way to the office when the injuries for which the plaintiff sued were inflicted upon her husband. The evidence showed that Rainwater was pursuing the most direct route from Roswell to the company office when he struck the plaintiff's husband with his automobile and inflicted the fatal injuries upon him.

J. M. Jackson, a witness for the plaintiff, and superintendent of the company's Marietta office, testified that Rainwater was employed generally to represent the company in the sale of insurance policies and to make collections on his debits; that his employment could be terminated by the company at its will, and "As to whether the manner in which he pursues his duties is prescribed by the company—the manner in which he does it, yes, of course. As to who instructs him in the performance of his duty—we have a company manual that explains everything in the debit. He is supposed to study that and I am supposed to instruct him, especially a new agent. I am supposed to explain the duties and that, of course, I do, try to help him learn the business and get started. He is supposed to go by his company's manual as to his procedure. I have authority to discharge him for failure to comply with the rules and regulations. * * * He can not represent any other life, health or accident insurance company. He would be subject to dismissal according to the company's rules for that. * * * As to whether he could perform the duties that are required of him by the company without the use of an automobile, no sir. * * * As to whether his principal activity with the Gulf Life Insurance Company is the writing and collecting of premiums in industrial life, I would not say that is his principal activity because one is about as important as the other. His time is largely taken up with his debit, and in his debit he is required most of the time. * * *" After testifying that the defendant company did not care when or how or at what hour of the day or night the defendant Rainwater chose to do his work of calling upon the policy holders and making collections, Jackson testified: "As to whether he can be there in the daytime or night time, well, I don't want him to be there at night, it would wake some of them up (referring to the policy holders). Some folks expect you to call there after they get off from work, but we try to eliminate that as much as we can;" and "As to whether or not the company required Mr. Rainwater to have a car, and as to whether or not I have ever employed a man in the office who did not have an automobile, no sir. As to whether that is a requirement of mine because of my knowledge of the debit and the requirements which would be put on a man that the debit is assigned to, yes, sir." The evidence showed that Rainwater used his own car and the company paid him an allowance of $2.50 per week for travelling expenses.

The defendant Rainwater testified in part as follows: "Mr. Jackson is my supervisor. As to what his job is, he tells us what to do on some things. * * * He is in charge of the office here in Marietta. As to whether I look to him as my boss, yes sir. As to whether he supervises the details of the work, not all of it, no sir. He does in some of the details. As to lapses— well, if we carry it over four weeks it must show and he takes it. If he thinks something should be lapsed, he lapses it. We know to lapse it in four weeks without him telling us, but sometimes he tells us to hold it over. * * * As to whether I have a fixed territory for the collection of premiums on policies—all industrial, yes sir, I have a fixed territory. * * * Mr. Jackson fixes my debit'. I am required to make regular or frequent calls on the policy holders within my debit. * * * We have certain fixed days to call on them, yes sir.

* * * As to whether there is any fixed time to report weekly to Mr. Jackson, yes sir, we clear our account on Wednesday.

* * * On Wednesday I clear the account and at that time I account for collections from Thursday to that date. I turn over to Mr. Jackson the complete amount of the collections without deductions. * * * As to whether there are any specific times I am required to be in the office of the Gulf Life Insurance Company—well, I go in there on Wednesday and on Saturday until 12 o'clock, and we usually report there every morning. As to whether that is by privilege or requirement, it is by requirement. Mr. Jackson requires me to be there."

"The employer generally is not responsible for torts committed by his employee when the latter exercises an independent business, and in it is not subject to the immediate direction and control of the employer." Code, § 105-501. "The employer is liable for the negligence of the contractor— * *. * 5. If the employer retains the right to direct or control the time and manner of executing the work; or interferes and assumes control, so as to create the relation of master and servant, or so that an injury results which is traceable to his interference. * * *" Code...