Neece v. Lee
| Decision Date | 19 July 1935 |
| Docket Number | 29287. |
| Citation | 262 N.W. 1,129 Neb. 561 |
| Parties | NEECE v. LEE ET AL. |
| Court | Nebraska Supreme Court |
Syllabus by the Court.
1. Where a salesman or a solicitor acts for a company on commission and represents the company only as to the results of his work, and where the company does not prescribe the means by which the work is accomplished and does not direct the mode of performing the work nor require the solicitor to devote his entire time to the service of the company, the company is not liable to third persons for personal injuries caused by the negligence of such solicitor.
2. In an action in personam a summons cannot be lawfully sent to a county other than the one where the action is pending unless there is a joint demand against the nonresident defendant and the defendant summoned in the county where the action was commenced.
Appeal from District Court, Adams County; Munday, Judge.
Action by Ethel Neece against Harry L. Lee and another. From a judgment for plaintiff, defendants appeal.
Reversed and remanded, with instructions.
Insurance company held not liable for injuries caused by company's solicitor in driving his automobile, where solicitor acted on commission, company did not prescribe means by which his work was to be accomplished, and did not direct mode of performing work and did not require solicitor to devote his entire time to service of company.
Shelburn & Russell, of Alma, Cleary, Suhr & Davis, of Grand Island, and Louis H. Cooke, of New York City, for appellants.
McNeny & Sprague, of Red Cloud, for appellee.
Heard before GOSS, C. J., ROSE, GOOD, EBERLY, PAINE, and CARTER JJ., and RYAN, District Judge.
This is an action brought to recover damages for personal injuries growing out of an automobile accident. It was brought in the district court for Adams county by the plaintiff against the defendants Harry L. Lee and the New York Life Insurance Company as Lee's alleged employer. It was alleged in plaintiff's petition that Lee was an agent and employee of the insurance company, and while in the course of such employment and while engaged in obedience to the specific orders and instructions of the company, he, on May 15, 1933 drove a Ford sedan into the automobile in which plaintiff was riding; that plaintiff suffered severe injuries; and that Lee was negligent by reason of excessive speed and lack of control of the automobile he was driving.
The answer of the New York Life Insurance Company admitted the collision, denied all other allegations in the petition, and alleged contributory negligence on the part of the plaintiff. The answer of the defendant Harry L. Lee alleged that Lee was a resident of Furnas county and was absent from Adams county when the action was commenced; that the defendant insurance company was served with summons in Adams county and service had upon Lee in Furnas county; that there is no joint liability between the defendant Lee and the insurance company with reference to the plaintiff's cause of action; and that the insurance company was made a defendant for the purpose of prosecuting the action in Adams county rather than in Furnas county. The answer further contained a general denial of the allegations of plaintiff's petition.
The reply was a general denial.
Previous to the filing of the answer of the defendant Lee, he filed a special appearance on the grounds set forth in the answer. This special appearance was overruled, but was preserved in the answer of the defendant Lee.
At the close of the plaintiff's evidence the defendant insurance company moved for a directed verdict in its favor, for the reason that the plaintiff had failed to introduce evidence sufficient to constitute a cause of action against the defendant insurance company; that she had failed to establish that defendant Lee was a servant or employee of the New York Life Insurance Company at the time of the accident, or that he was in the course of any employment performing any service for the company. The company renewed the motion at the close of all the evidence. The motions were overruled and the cause submitted to the jury. A verdict was returned by eleven jurors for the plaintiff and against both defendants. Mo tions for a new trial were overruled and judgment rendered upon the verdict on April 23, 1934. The defendants bring the case to this court on appeal.
There are many errors assigned, but the principal one relied upon is that there was no joint liability between the defendants, and that the suit was improperly commenced in Adams county, and that no judgment could be rendered against either defendant in Adams county.
The evidence showed that the defendant Lee was a soliciting agent for the New York Life Insurance Company and that he held an agency contract, dated May 3, 1920, whereby he was appointed the company's " special agent for the purpose of canvassing for applications for insurance on the lives of individuals, and of performing such other duties in connection therewith as the officers of said first party may in writing expressly require of him." The contract also provided that Lee should have no authority to accept risks, to make contracts, to extend the time of payments of premiums, or to bind the company by any statement. It provided that Lee should devote to the business of his appointment " such portions of his time as he can spare from his other occupations." It provided further that he should receive as compensation only certain percentages of the first premiums collected. The defendant Lee was authorized to solicit life insurance in any part of the state of Nebraska. The contract provided for cancellation for cause, and further that either party might without cause terminate the agreement upon thirty days' notice. At the time of the accident the defendant Lee was an inspector for the regional agricultural credit corporation. His duties were to make inspections for farm yard and feeder loans for this corporation over a large territory and he devoted practically all of his time to that occupation. He testified that he spent a very small part of his time soliciting life insurance for the defendant company; that he had not written any business for four or five months previous to the accident for the defendant insurance company.
On May 15, 1933, Lee made an inspection south of Republican City for the credit corporation. He left his home at Oxford at 8 or 9 o'clock in the morning by automobile. He drove his Buick car to Alma and there he borrowed a new Ford sedan and drove to a farm where he made a barn yard inspection and completed his work there at about 4 p. m. When he left this farm he drove to Republican City and called at the office of Dr. Talcott to inquire about the physical examination of two applicants for insurance, whose applications he had taken some months previously, but which had been held up for final action. He had no supplies of the insurance company with him at this time. There is a dispute in the evidence as to whether or not the defendant Lee actually saw Dr. Talcott on that day. He called at his office and learned that the doctor was absent and said he would see him later. Lee testifies that he did not see the doctor, but got in his car and left for Alma. The accident took place while Lee was driving from Republican City to Alma at about 4:30 p. m. on that day. A witness, Ulis Wolf, testified that he saw and overheard the defendant talking with Dr. Talcott in the barber shop at Republican City.
It is a well-settled rule that, where one person has sustained an injury from the negligence of another, he must, in general, proceed against the party by whose negligence the injury was occasioned. If, however, the negligence which caused the injury was that of a servant while engaged in his master's business, the person sustaining the injury may disregard the immediate author of the mischief and hold the master responsible for the damages sustained. The master selects the servant and the servant is subject to his control, and, in respect to the civil remedy, the act of the servant is in law regarded as that of the master; but it is not enough, in order to establish a liability of one person for the negligence of another, to show that the person whose negligence caused the injury was at the time acting under an employment by the person sought to be charged. It must be shown in addition that the employment created the relation of master and servant between them. King v. New York C. & H. R. R. Co., 66 N.Y. 181, 23 Am.Rep. 37.In Wyllie v. Palmer, 137 N.Y. 248, 33 N.E. 381, 19 L. R A. 285, it was held that the doctrine of " respondeat superior" applies only when the relation of master and servant is shown to exist between the wrong-doer and the person sought to be charged with the result of some neglect or wrong at the time and in respect to the very transaction out of which the injury arose. See Neff v. Brandeis, 91 Neb. 11, 135 N.W. 232, 39 L.R.A.(N.S.) 933.
The defendant Lee worked under a contract by which he was authorized to solicit and receive applications for life insurance anywhere within the state of Nebraska and was to be paid a certain percentage of the first premiums upon policies written under applications received by him. There was no provision that the company should pay a salary or his traveling expenses or any other expenses. There was no provision in the contract as to how or where or when Lee should travel or that he should travel at all. The defendant reserved no control over Lee's manner or method of working. He was not required to devote any particular portion of his time to the service of the company.
In Barton v. Studebaker Corporation, 46 Cal.App. 707 189 P. 1025, 1028, wherein it was sought to hold the...
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