Opinion
No. 32006.
January 27, 1936.
1. AUTOMOBILES.
In action for injuries received by plaintiff when struck by automobile, evidence held to support judgment for plaintiff against insurance company based on finding that driver was agent of company for whose negligence in operation of automobile company was liable.
2. MASTER AND SERVANT.
Whether person is agent or servant of another or an independent contractor is determined by facts shown.
APPEAL from the circuit court of Lauderdale county; HON. ARTHUR G. BUSBY, Judge.
Bozeman, Cameron Bozeman, of Meridian, for appellants.
As we understand it, the position of the plaintiff below is based entirely on the contention that it was absolutely necessary that the solicitors use cars, and that the company knew that they were using them, and that liability resulted from those two facts.
It is submitted that this question of law is ruled directly against the plaintiff in the decisions of this court and of courts of our nearby states.
N.O., etc., R.R. Co. v. Norwood, 62 Miss. 565; Southern Express Co. v. Brown, 67 Miss. 260; Callahan v. Rayburn, 110 Miss. 107, 69 So. 669; Crescent Baking Co. v. Denton, 147 Miss. 639, 112 So. 21; Hutchinson, etc., Co. v. Pittman, 154 Miss. 1, 122 So. 191; Kisner v. Jackson, 159 Miss. 424, 132 So. 90; Werner v. Northcutt, 161 Miss. 441, 134 So. 156; McDonald v. Hall-Neely Co., 165 Miss. 143, 147 So. 315; Income Life Ins. Co. v. Mitchell, 79 S.W.2d 572.
In order that the relation of master and servant may exist, the employee must be subject to control by the employer, not only as to the result to be accomplished, but also as to the means to be used.
Khoury v. Edison Co., 164 N.E. 77; Birmingham Post Co. v. Sturgeon, 149 So. 74; Great Atlantic Pacific Tea Co. v. Donaldson, 156 So. 859.
The thing we are all trying to do, of course, is to determine what was Pace's contract with the company. There was a contract of employment, and it was a verbal contract. Like most verbal contracts, all of the terms were not definitely or finally expressed at the time of the making, and we must look both to the terms then agreed upon and to the construction placed on the contract by the parties during its fulfillment.
It clearly appears from the testimony that under the contract, as originally made, nothing was said about any automobile and nothing that was said would indicate that it was in the contemplation of the parties that one would be used.
We submit that it is equally clear that the conduct of the parties in the performance of the contract does not give rise to the implication that the use of the car was a part of Pace's contract of employment.
Even if it should be conceded that the company knew that on certain days Pace customarily went to certain parts of town, this would not amount to the control necessary to fix liability on the employer.
The testimony shows clearly that Pace acted of his own independent choice and will as to the handling of money, his own movements and actions, his use of automobile or not, and all other things, except with respect the risks the company would insure and the records and papers it required in writing policies. These details were of no consequence. In the matters that really counted, the company exercised no control and Pace was a free agent.
M.V.B. Miller, of Meridian, for appellee.
Appellant Pace admitted that at the time he struck appellee's car he was on duty for the appellant company and was performing his duties as he was required to do by it. Pace testified that in performing his duties he followed the details laid down for him by Mr. Wardlaw and the rules of the company, and that the company had a right to hire and fire as they saw fit.
Larke v. John Hancock Mutual Life Ins. Co., 90 Conn. 303, 97 A. 320, L.R.A. 1916E, 584.
There are no Mississippi cases directly in point. The nearest in point are the cases of Natchez Coca-Cola Co. v. Watson, 160 Miss. 173; and Caver v. Eggerton, 157 Miss. 88, 127 So. 727.
Postal Tel. Co. v. Murrell, 180 Ky. 52, 201 S.W. 462, L.R.A. 1918D, 359; Burgess v. Garvin, 219 Mo. App. 162, 272 S.W. 108; Auer v. Sinclair Refining Co., 103 N.J. Law, 372, 137 A. 555, 54 A.L.R. 623.
The question of appellant company's liability was for the jury.
American National Ins. Co. v. Denke, 65 S.W.2d 523; Dillon v. Prudential Life Ins. Co., 242 P. 737; Fidelity Union Ins. Co. v. McGinnis, 62 S.W.2d 186; Hall v. Sera, 152 A. 150; George v. Chaplin, 279 P. 487.
There is not even a hint in the evidence that the insurance company could not have had its agent Pace walk to do his work instead of using an automobile. The most reasonable and compelling inference one would draw from reading the record is that the insurance company had a right, which both Pace, its agent, and Wardlaw, its district manager, recognized, to require its agents, including Pace, to conform to any rule, regulation or order it saw fit to make. If the company could and would fire Pace for driving his car on duty while intoxicated, where is any evidence that would warrant one from drawing the inference that it had the same right and power to compel Pace to obey the law in other respects while driving his car.
Mitchem v. Shearman Concrete Pipe Co., 165 S.E. 889; Postal Tel. Co. v. Murrell, 201 S.W. 462; Burgess v. Garvin, 272 S.W. 108; Kisner v. Jackson, 132 So. 92.
The general rule laid down by the United States Supreme Court as early as 1852, as to the master's liability for the torts of the servant is: "If it be done in the course of his employment, the master is liable; and it makes no difference that the master did not authorize, or even know of the servant's act or neglect, or even if he disapproved or forbad it, he is equally liable, if the act be done in the course of his servant's employment."
Philadelphia R.R. Co. v. Derby, 14 How. 468, 14 L.Ed. 502; Singer Mfg. Co. v. Rhan, 132 U.S. 518, 10 S.Ct. 175, 33 L.Ed. 440; Texas Power Light Co. v. Denson, 45 S.W.2d 1002.
Argued orally by Ben F. Cameron, for appellant, and by M.V.B. Miller, for appellee.
The appellee, Lewis Curtis, filed suit in the circuit court of Lauderdale county against the Life Casualty Insurance Company of Tennessee and Vernon Pace, its agent, alleging that Pace, while in the course of his duties as an employee of appellant, and in the scope of his authority as such agent, inflicted a personal injury upon Lewis Curtis, appellee. There was a judgment in the court below in favor of the appellee for six thousand dollars, from which this appeal is prosecuted. The insurance company executed a bond, but Pace prayed for an appeal without executing any bond.
The principal assignment of error by the appellant is that Pace was not an agent of the insurance company, but was an independent contractor, for whose acts the insurance company was not liable.
The injury occurred in the city of Meridian at the intersection of a street and avenue therein. The proof is sufficient to show that Pace was negligent in the operation of the car, and the extent of Curtis' injury was sufficient to sustain the verdict of the jury.
Without setting out a statement of the case in extenso, it is sufficient to say that Pace was employed by the insurance company to collect premiums weekly upon certain policies issued by the company, and to write new business within the territory contiguous to Meridian, Mississippi, which extended as far south as Quitman, to the north and west as far as Electric Mills and Louisville, and east to the Alabama line. It appears that there was a superintendent, Mr. Wardlaw, in charge of that territory, and that he had several agents or collectors and writers of new insurance under his supervision, who were required to meet with him for instructions and to report to him the amounts collected and give reasons for not collecting. These agents were required to turn over the amounts collected, but were allowed to retain a limited amount for expenses of travel, etc. There was a premium given for new business in certain amounts to encourage extraordinary efforts. Pace owned his own automobile, which he used in making his collections and writing new business, and some of the agents either walked or took busses or taxis.
The insurance company had rules and regulations to govern the people engaged in its business, and Wardlaw testified that it was his duty to enforce same, and that he did so to the best of his ability. He claimed that he had no authority over how Pace should go to and from his work, and that he could write new business anywhere in the assigned territory.
Pace testified that there were about seven people doing the same kind of work he was, and that, under the rules of the insurance company, Wardlaw was the "boss" of them all, and that all the work was under his supervision, that on several occasions Wardlaw had accompanied Pace in his automobile, and that it was well known by the insurance company that he used his own automobile, and that this automobile, so used, hit the plaintiff, appellee here, while Pace was on business for the insurance company.
There was other testimony tending to show that Pace could go when he pleased in making collections, which would have warranted the jury in believing that he was not an employee of the insurance company, but was doing business in his own way. There was also evidence to show that the company could discharge Pace or abrogate the contract whenever it desired, and likewise that Pace could quit when desired.
The evidence is voluminous, and there is considerable conflict therein, but we think there is sufficient evidence to warrant the jury in finding for the appellee, and that Pace was an employee of the insurance company, subject to its control and direction, and was not an independent contractor. In other words, the testimony was such that the jury could have found for the appellee had it believed facts favorable to his contention, or could have found for the appellant if it had believed the evidence tending to show that Pace was an independent contractor. The question was submitted to the jury, which decided facts favorable to the appellee.
We are of the opinion, after a careful reading of the record, that there was sufficient evidence to warrant the finding of the jury.
In numerous cases this court has held that the facts shown govern the principle for determination as to whether or not a person is an agent or servant of a party, or an independent contractor. Caver v. Eggerton, 157 Miss. 88, 127 So. 727; Texas Company v. Mills, 171 Miss. 231, 156 So. 866; Natchez Coca-Cola Bottling Co. v. Watson, 160 Miss. 173, 133 So. 677; Kisner v. Jackson, 159 Miss. 424, 132 So. 90; McDonald v. Hall-Neely Lbr. Co., 165 Miss. 143, 147 So. 315, and the authorities cited in these cases. The governing principles have been fully settled in this state, and the only difficulty in the varying cases that arise is the application of these principles to the facts involved.
We see no need to go outside of Mississippi for cases of other jurisdictions, as so much has been written here upon the questions involved. It is often more confusing than helpful to go into foreign jurisdictions, since it is difficult to tell how much these decisions are affected by statutes and prior decisions. In this state, when there is confusion, it grows out of the difference in the facts involved in the several cases, and it has been settled here that each case must be determined on its own facts.
We have examined the instructions and find no error therein. We have also examined the evidence and find no reversible error. It follows, therefore, that the judgment of the court below should be affirmed.
Affirmed.