Vestal & Vernon Agency v. Pittman

• Decision Date: 11 January 1954
• Docket Number: No. 39036,39036
• Citation: 219 Miss. 570,69 So.2d 227
• Parties: VESTAL & VERNON AGENCY et al. v. PITTMAN.
• Court: Mississippi Supreme Court

Page 227

69 So.2d 227

219 Miss. 570

VESTAL & VERNON AGENCY et al. v. PITTMAN.

No. 39036.

Supreme Court of Mississippi.

Jan. 11, 1954.

Vardaman S. Dunn, Jackson, for appellants.

Satterfield, Ewing, Williams & Shell, Young & Daniel, Jackson, for appellee.

LEE, Justice.

This cause had its origin as a claim for compensation by Mrs. Ernestine Pittman and her three children against Nelson Vestal and E. C. Vernon, doing business as Vestal & Vernon Agency, and their insurers, on account of the death of Carl Leroy Pittman, their husband and father. An award was made by the attorney-referee, which was subsequently affirmed by the Commission and by the circuit court. The defendants in the proceeding appealed.

On November 2, 1951, about 3:30 P. M., the decedent, while driving an automobile in a southerly direction on Highway 49E, about 18 miles south of Greenwood, Mississippi, collided with a truck, and received injuries from which he died two days later.

The question for determination was whether the decedent, at the time, was an employee of Vestal & Vernon Agency or an independent contractor; and if an employee, whether or not his injury and death arose out of and in the course of his employment; and also the amount of his average weekly wage at the time.

There is no concern here in regard to the status of insurance agents generally. The sole question is the determination of the status of the particular agent here.

Vestal & Vernon Agency were general agents for two insurance companies. They advertised for salesmen to act as subagents. During April 1951, Pittman answered one of the ads in a Jackson newspaper, and was appointed. He was trained by Louis Sutherland, a salaried employee of the Agency. For the first time, the Agency set up the 'crew' method of solicitation. It functioned in this manner: A county would be circularized in advance by sending information to prospective purchasers, who, in turn, would signify their interest by mailing the 'tell me more' coupons to the home office of the insurance company. Such replies were then forwarded to the Agency and were called 'leads'. Following the circularization and the accumulation of leads, the crew of four would be sent into that county.

Pittman and the other members of the crew lived in the Jackson area. Usually they went out on their work Monday morning and returned Friday evening. They lodged at the same hotel or tourist court, kept the Agency informed as to where they could be located, received mail and telephone calls, and occasional visits from Sutherland. They were expected to mail, within a reasonable time, preferably daily, the applications which they obtained for policies. They customarily reported to the office of the Agency on Saturday morning, when they would settle their accounts for the business of that week, talk shop, and receive their leads for the next week. Considerable expense was incurred in obtaining leads, and the members of the crew were expected to work them although they were at liberty to call on other prospects. One crewman depended on the leads for 99% of his calls. The crew members furnished their own transportation and paid for their meals and lodging. They could be fired by the Agency, or could quit voluntarily, at any time. They collected the initial premium and received their pay from a 60% commission of the quarterly, 40% of the semiannual, and 30% of the annual, premiums.

Pittman, because of his personality, energy, enthusiasm and success as a solicitor, was appointed the crew leader. As such, he was expected to keep the other members in good spirits, 'pat them on the back' and help the other agents, especially the new ones, with their applications. Crewman J. E. Weathersby testified that if anything had come up, about which he did not know, he would have asked Pittman. When crewman John E. Gribble started to work, Pittman helped him to correct errors in applications and showed him how to make out daily reports. On a number of occasions Pittman distributed the leads for the week. For his compensation as leader, he was given a 5% 'over-ride' on the policies sold and delivered by the other members of the crew. This amount was not paid by the other agents from their commissions, but was paid by the Agency out of its part from the sale of insurance.

The foregoing facts are without substantial conflict.

Mrs. Ernestine Pittman testified that she went with her husband to the office of the Agency practically every Saturday morning, and that the other members of the crew were also present. They went to Sutherland's office to find out where they were to work the next week and for their instructions. Sutherland was her husband's boss, and would give the leads to her husband, who would, in turn, divide them up. Her husband was required to inform the Agency where the crew was staying, and to make daily reports. On one occasion, Sutherland 'reamed out' her husband for not sending daily reports. On another occasion, her husband wanted to work in the Delta but Sutherland told him that the area was not ready. They were instructed to sell hospital insurance only at Corinth. Sutherland told her husband to give the crew members only so many leads as they could call on, and instructed him to tell them to 'spit where they spit; if they talk country, talk country.' Sutherland instructed her husband about his dress, to keep himself neat, and his automobile clean, and to get letters of introduction from prominent people. The agency also gave her husband a batch of delinquent reneweals, and asked him to call on those people about reinstating their policies.

E. C. Vernon, one of the partners, called as an adverse witness, admitted that the Agency furnished a brief case and sales kit, but did not know whether Pittman paid for the same. Sometimes he furnished agents with money for personal needs. The crew was instructed not to sell health and accident insurance in Alcorn and Tishsomingo Counties. Pittman had no authority to hire an assistant. He was expected to follow the rules of the home office. He did not say whether Pittman would have been paid the over-ride if he had laid off on his own volition. While testifying repeatedly that the agents were independent contractors, yet when in an effort to show control, counsel questioned him about Sutherland's giving instructions, his reply was, 'We like to think we advise with them rather than demand or instruct.'

Other witnesses for the appellants testified in detail to establish the contention that Pittman was no different from its other agents, and that he was an independent contractor and not an employee. Running through all of this testimony, which was calculated to show that Pittman, in the performance of his service, was an independent contractor rather than an employee, was the theme that he usually did thus and so, or that it was customary to do so, or that he was expected to do this or that, or that good business would require such a course, or other like synonyms. In view of the fact that one of the partners admitted that 'We like to think we advise with them rather than demand or instruct', the trier of facts was well warranted in concluding that those expressions were in fact euphemisms for the words instruct, command and order; that the right of...