Atlas Life Ins. Co. of Tulsa v. Foraker , 196 Okla. 389 ( 1946 )

As disclosed by the record in this case and the majority opinion there was definite evidence that one Hewitt was not only a soliciting insurance agent of the defendant company but was also, by special contract with the company, a supervisor and obliged by such agreement to contact, supervise, and "straighten out" local agents of the company when directed by the company so to do; that prior to the death of Foraker by reason of Hewitt's alleged negligence he had received instructions from the general supervisor of the defendant to go to St. Louis, Okla., and contact one Hewes, a local agent of the company, who was not procuring a justifiable volume of business and attempt to "straighten" him out. Just before he made the trip in pursuance of said direction by the defendant his compensation for supervising activities was, for economy reasons, discontinued but with the understanding that he would thereafter continue to perform such service; that he did continue to perform such service; that the entire arrangement with the defendant company had existed and he had performed his duties thereunder in a large designated territory, mostly rural in character, for many months; that the use of an automobile was a practical necessity in the performance of the duties imposed by his contracts with the company; that the company well knew this and knew that he was using his automobile in the performance of his duties as a solicitor of insurance and supervisor of local agents. He was returning by automobile from a supervising mission and going directly to see a prospect whom he had theretofore contacted with reference to the purchase of an insurance policy.

The question of whether or not Hewitt, a general and special agent of the defendant company, was an independent contractor was, in my judgment, properly submitted to the jury. Its determination of the question was adverse to the company, and since there was competent evidence reasonably tending to support the finding in this respect, the case should not be reversed for this reason.

It is conclusively shown that until compensation for the services of Hewitt as a special supervisor was discontinued it was his duty to go where and when the company directed him to go in the performance of this duty. After that there is a conflict in the testimony of Hewitt and the company as to whether he was to perform such service.

The right to control the time, place, manner, and means of the performance of an employee's duties is an essential test of the existence of the relationship of master and servant. If an employer retains such right, though never exercised, the relationship is not that of independent contractor but is that of master and servant. Magnolia Petroleum Co. v. Pierce,132 Okla. 167, 269 P. 1076; Ottinger v. Morris et al.,187 Okla. 517, 104 P.2d 254.

The facts in the instant case are so dissimilar from those in the cases cited by the majority from this court, I think it unncessary to point out specifically the material dissimilarity.

The majority opinion concedes, as I do, that we have not heretofore passed upon the exact question presented, but it says that other courts have. To this I agree. The cases cited by the majority opinion, towit: Vert v. Metropolitan Life Insurance Co., 342 Mo. 629, 117 S.W.2d 252, 116 A.L.R. 1381, and note; American National Insurance Co. v. Denke et al., 128 Tex. 229,95 S.W.2d 370, 107 A.L.R. 409, and note; American Nat. Ins. Co. v. Kennedy, 130 Tex. 155, 107 S.W.2d 364, 112 A.L.R. 916; and Stockwell v. Morris, 46 Wyo. 1, 22 P.2d 189, involved, in my judgment, very dissimilar fact situations that accounts for the determination in those cases that the insurance agent was an independent contractor. Generally they involved situations wherein the agent was assigned and operated in a small, well defined, area of a city where various means of transportation were available and practicable and the use of an automobile in the performance of his duties of soliciting insurance would not be necessary and no contract existed to supervise other agents at the specific direction of the insurance company.

An insurance company that assigns to an agent the extra duty of supervising and directing local agents in a large territory, largely rural, where the use of an automobile would be a practical necessity, with knowledge of such use, should be held to have impliedly authorized the use of such means of conveyance in the furtherance of its business and duties imposed. The relationship in such a case is that of master and servant. Chatelain v. Thackeray, 98 Utah, 525, 100 P.2d 191; Wooten v. Dragon Consol. Min. Co., 54 Utah, 459, 181 P. 593; 39 C. J., 316. I know of no case, nor have we been cited any, holding to the contrary. To hold otherwise would be to say that if an insurance company controls every other detail of the performance of an agent's duties in the furtherance of its business, but does not specifically authorize or direct the means of conveyance, the relationship would be that of independent contractor.