Gulf Life Insurance Co. v. McDaniel , 75 Ga. App. 549 ( 1947 )

Under the facts of this case, I do not think that the defendant insurance agent was an agent of the company and in the course of his employment when the injuries occurred. The agent had gone outside of his debit area in off hours on a mission disconnected with his relationship of master and servant. He was not going outside of his geographical debit area by necessity to perform a duty ordinarily performed within it. He had not returned to his debit area, and his intention to go to the office and get papers with the intention of performing debit duties in the area would not put him on business for the company on debit business in the area. He went out of the debit area on a separate mission, and I think that his intention to go by the office to get the papers was a mere preparation to engage in debit business. Such preparation off the employer's premises, at least, is a private and not a company matter. If he had been a sales employee, and had driven his own automobile in off hours to the company's garage to get a company car to demonstrate to a customer, I do not think that he would have been in the course of his employment on his way in his own car to get another, and I think that the company would have not been liable for his negligence on the way to the garage. In Vert v. Metropolitan Life Ins. Co., 342 Mo. 629 (supra), it was held: "An employee may be an independent contractor as to certain work and yet be a mere servant as to other work for the same employer. . . Going outside of his debit district to sell old-line life insurance was purely permissive, and depended upon his own initiative, although, of course, it was to the company's interest to make it to Crowe's interest financially to do so. . . The decisive point is that Crowe was not on or returning from a trip which the company had directed him to make, nor which was made for the purpose of performing any duty the company required him to do. The trip was made to carry on another kind of activity, which was clearly separate and apart from his regular industrial insurance duties. . . A person who is ordinarily known as a life-insurance agent is certainly not within the classification of a servant or employee subject to direction as to how he shall attempt to accomplish results. His employment is solely for the purpose of bringing about contractual relations between his company and others. He works on his own initiative. His principal is properly held not to be liable for physical harm he causes because it has nothing to do with directing his physical movements. . . When Crowe left his debit district to engage in obtaining old-line life-insurance business outside of it, he left his regular employment, which occupied most of his time, and in which he had duties that did require him to make physical movements over a definite territory to find and collect from certain persons at the regular intervals as directed by the company or which it had no doubt the right to direct. In selling life insurance elsewhere, he was not running on such physical errands for his employer but became, while he was outside of his debit, solely what is ordinarily known as a life-insurance agent working on his own initiative solely for the purpose of bringing about contractual relations between his company and others. He then had an entirely different relationship with his principal than he did when performing his regular duties in his debit which included physical errands, which required his physical services to accomplish, and which we may assume the company had the right to direct. In the former relation his physical movements were only incidental and it made no difference to the company when or how they were made; while in the latter they were the direct method of accomplishing the result sought and the company had the right to direct them. Knowledge on the part of the company that Crowe used his car as a means of transportation when soliciting life-insurance business outside his regular debit district was not sufficient to impose liability upon it for damage done by its use because it was left to his own initiative and decision whether he ever went out of it to sell life insurance and if so when, where, and how. Selling life insurance was not accomplished by physical movements at a time and place and in a manner which it was intended that the company should have the right to direct, and it should not be liable for physical damage done by Crowe, while he was engaged in such business on his own initiative . . . We hold that Crowe's activity as a life-insurance agent was so entirely separate from his work in his industrial-insurance debit that it was no part of it; that when he went out of his debit for that purpose he wholly departed from his regular employment in which the company had the right to direct his physical activity for its accomplishment; that the company neither reserved the right to direct the manner in which Crowe should travel, outside of his debit for the purpose of selling old-line life insurance, nor expressly or impliedly directed his travel in such business; and that it is not liable for physical damage he did when making trips solely for such purpose wherever he desired to go in Illinois of Missouri, or in returning from such expeditions."