Opinion
44614, 44629, 44630.
ARGUED JULY 7, 1969.
DECIDED SEPTEMBER 3, 1969. REHEARING DENIED SEPTEMBER 22, 1969.
Action for damages. Gordon Superior Court. Before Judge Davis.
Wright, Walther Morgan, Clinton J. Morgan, O'Kelley, Hopkins Van Gerpen, Earl J. Van Gerpen, for American Family Life.
Mitchell Mitchell, Warren N. Coppedge, Jr., James B. Langford, for Welch.
Rogers, Magruder Hoyt, J. Clinton Sumner, Jr., for Pioneer American.
1. Case 44614. The court erred in overruling the motion by American Family Life Assurance Company for a judgment n. o. v. because the contract between the company and its representative consisted the latter an independent contractor and there was no evidence that the company assumed control of the time, manner and the method of the representative's work.
2. Case 44629. The court erred in granting the motion of Pioneer American Insurance Company for a judgment n. o. v. (a) because the contract between the company and its representative reserved the right in the company to control the time, manner and method of the latter's work, and (b) because the evidence authorized the finding that the agent was within the scope of his employment by the insurance company at the time of the collision which is the subject matter of this action.
3. Case 44630. There was no error in the overruling of the motion for a new trial filed by Pioneer American Insurance Company on the general grounds as shown in Headnote 2 above. There is no merit in any of the amended grounds of this motion.
ARGUED JULY 7, 1969 — DECIDED SEPTEMBER 3, 1969 — REHEARING DENIED SEPTEMBER 22, 1969 — CERT. APPLIED FOR.
Mrs. Ernest Lee Welch, Sr. brought an action to recover damages from the wrongful death of her minor son resulting from a two-car automobile collision caused by the defendants' alleged negligence. The parties defendant were Truman Hendrix, the driver of the allegedly family-purpose automobile in which the deceased was a passenger; Mrs. Nettie Y. Hendrix, Truman's mother; Raymond Ralston, the driver of the other automobile; American Family Life Assurance Co. and Pioneer American Insurance Co., of one or both of which companies defendant Ralston is alleged to have been the agent and to have been on company business at the time of the collision.
Defendant Ralston's contract with defendant American Family Life provided in part as follows: "The agent is hereby authorized to solicit applications for contracts of insurance to be issued by said company, to forward same to the company for approval or rejection, and to collect the first premiums due on such applications; the agent guarantees to hold such premiums in trust and to remit them to the company as directed by the company. The agent shall be free to exercise his own judgment as to the person from whom he will solicit applications and the time and place of solicitation. The relationship of agent toward company shall be that of an independent contractor and nothing contained herein shall be construed to create the relationship of employer and employee. The company may from time to time prescribe rules respecting the requirements for eligibility of applicants for insurance, not interfering with freedom of action of said agent, which rules shall be observed and conformed to by said agent. The general transactions of business will be governed by company rules which may be changed, altered, or amended from time to time by the company... The agent is not authorized to make any contract or incur any debt in the name of the company; ... nor to make, modify or amend any application for insurance or any policy of insurance; nor to extend the time for making any payment which may become due on the policy; nor to waive any of the company's rights or privileges under its policies or applications. The agent shall have no authority other than that expressly granted herein, and no forbearance or neglect on the part of either the agent or the company shall be construed as a waiver of any of the terms of this contract or imply the existence of any authority not expressly granted herein... The agent shall pay all expenses incurred by him in the performance of this contract, and shall be entitled to and shall receive as full compensation for such expenses and for his services [commissions and renewal commissions on policies]... The agent shall be authorized to solicit applications within the State of Georgia. The agent shall not solicit applications ... in any State in which both he and the company are not duly licensed... It shall be the sole responsibility of the agent ... to secure proper license(s) from the State in which he solicits applications for insurance ... [As to life insurance] all applications secured under this contract, as well as reports of medical examination, shall be delivered to the company whether reported on favorably or unfavorably by the medical examiner... All policies shall be delivered within thirty days after the date of issuance, and no policy shall be delivered until settlement for the first premium ... is secured while applicant is in good health... No circulars, advertisements or other matter shall be published, printed, distributed or used in any way by the agent until the same shall first have been approved in writing by the company. All ... books or papers of every kind used from time to time by the agent in connection with his agency, whether the cost thereof be paid by the company or by the agent, shall be and remain the property of the company, and the same shall be subject at all times to inspection by the company on demand. ... Any and all information obtained by the agent concerning any part of the business of the company ... [etc.] shall be considered confidential... The agent shall not [nor offer to] pay or allow ... any rebate of premium..."
Defendant Ralston was appointed a "general agent" of the American Family Life Assurance Co. by a supplement to the "Agent's Contract Agreement," which provided additionally, in part, as follows: "The service commissions and application bonus shall be allowed only so long as: (a) the [general agent] complies fully with all the terms and conditions of the agent's contract ... (c) the [general agent] services the company business as directed by the company. Each [general agent] is responsible for his office rent, telephone and other expenses..."
Defendant Ralston's "Regional Manager's Contract" with defendant Pioneer American contained provisions materially similar to the contract with the other defendant company with two controlling exceptions.
In addition to the documentary evidence, including the above contracts, defendant Ralston testified that he had no agreement with American Family Life to pay his office rent; the company did not furnish anyone to supervise the training of agents or instruct him as to the kind of people he could hire as agents; his telephone expense was to be paid by himself out of his draw from American Family Life; he bought his business cards from said company, which never furnished him anything except selling aids; he never hired any other personnel and never had anyone to supervise; his business bank account was in his own name; he never worked a debit for American Family Life; the automobile he was driving at the time of the collision was his own — the company had no connection with it and paid none of his automobile expense; he rented to his own office space and, as far as the company was concerned, he was free to rent or not; his telephone listing in the name of the company was done by himself, not by any requirement of the company; the company had no control over his working hours or whom he was to solicit; the company did not even require that he work and he did not work at all for them for an approximately three-month period; he was free to sell the policies of other insurance companies and was doing so, and held the position of regional manager for defendant Pioneer American.
With respect to his relation with defendant Pioneer American, the contract was, as stated, very similar to the American Family Life contract with the two controlling exceptions. One is that the Pioneer contract does not contain the provision that defendant Ralston shall not be considered an agent of Pioneer, but was intended to be an independent contractor. The other difference in the Pioneer contract is a provision (Section 25) that the agent shall comply with all rules the company may have established, or may hereafter establish and shall perform all necessary duties as required in connection with the general business of the company without any additional compensation other than provided in the contract. The jury rendered a verdict against Raymond Ralston, Truman Hendrix and the two insurance companies named above. Mrs. Welch appeals from the judgment granting the motion of Pioneer American for a judgment n. o. v. (44629); American Family Life appealed from the judgment denying its motion for a judgment n. o. v. (44614); Pioneer American cross appealed from that part of the order of the trial court denying this appellant's motion for a new trial as amended (44630).
1. Case 44614. The court erred in overruling the motion for a judgment n. o. v. filed by American Family Life Assurance Company. The contract shows clearly on its fact that it does not give the employer the right to control the time, manner and method of executing the work as distinguished from the right merely to require certain definite results in conformity with the contract; nor did the contract reserve the right of control. Blair v. Smith, 201 Ga. 747, 748 ( 41 S.E.2d 133); American Cas. Co. v. Smith, 116 Ga. App. 332 (2) ( 157 S.E.2d 312). The was no evidence whatever to show that the employer assumed, outside of the contract, control of the time, manner and method of executing the work. Where the contract of employment clearly denominates the other party as an independent contractor, that relationship is presumed to be true unless the evidence shows that the employer assumed such control. Morris v. Constitutions Publishing Co., 84 Ga. App. 816, 819 ( 67 S.E.2d 407). Gulf Life Ins. Co. v. McDaniel, 75 Ga. App. 549, 560 ( 43 S.E.2d 784) is distinguishable from this case by reason of the obvious provisions in that case showing the right to control and exercise of control by the insurance company.
2. Case 44629. The court erred in granting the motion for a judgment n. o. v. filed by Pioneer American Insurance Company. The provisions of the contract closely resemble those of the contract discussed in Division 1 with two vital exceptions. The contract dealt with here does not expressly provide that the agent be considered an independent contractor. Such a provision will not necessarily control as to what the relationship between the parties is. But regardless of this difference the contract itself reserves to the insurance company the right in the future to make rules binding on the agent which might give the company the right to control the time, manner and method of executing the work and this alone constitute the party contracting with the employer an agent rather than an independent contractor in the absence of a clear provision that the future rules would not give the employer the control which would result in the agency relationship. The evidence authorized the finding that the agent was within the scope of his employment when the accident occurred. At the time of the accident the agent Ralston was on his way to Redbud High School primarily to talk with prospects for policies issued by American Family Life, with which company he occupied the status of an independent contractor. He testified that he was working in the furtherance of his business of selling insurance and that he had already formulated in his mind a program to sell insurance for Pioneer American to the same people he was negotiating with for American Family Life, and that he had already talked to the school superintendent about it. He also testified that at the same time that he was discussing American Family Life insurance he was cultivating their good will toward himself with the idea of selling a Pioneer American policy in addition to an American Family Life Policy. The jury was authorized to find that at the time of the accident Ralston was also acting as agent for Pioneer American in the prosecution of its business.
3. Case 44630 (Cross appeal to 44629). The ruling herein before made to the effect that the court erred in granting Pioneer American's motion for a judgment n. o. v. covers the general grounds of Pioneer's motion for a new trial on the general grounds and we proceed to a consideration of the other special grounds of the motion for a new trial which Pioneer contends should have been sustained in the alternative, the motion for judgment n. o. v. having been granted.
It was not error for the court to refuse to admit in evidence a State Patrol accident report which contained objectionable matter. The mere offer, by the party seeking to introduce the report, to delete the objectionable material from the report, is not sufficient for the purpose of obtaining a ruling by the court. To be good, the record must show exactly what was intended to be introduced. Whether the court's ruling was correct for additional reasons is not decided.
These grounds of the amended motion complain that the court erred in failing to charge on comparative negligence as between the plaintiff's deceased and Raymond Ralston. This issue was not raised both by the pleadings and the evidence and it was not error to fail to charge on the subject without a request, and an objection to the charge later made does not preserve the complaint. Any other conclusion would nullify the law as to when a written request to charge is required before an objection can be made to a failure to charge.
There was no error in failing to charge on contributory negligence as it related to the conduct of the plaintiff's deceased. This defense was not pleaded and the charge was not required, even assuming that the evidence alone authorized it. The cases cited by cross appellee holding that the charge was required without a request are based on different factual situations which do not exist in this case. These cases are: Central of Ga. R. v. Prior, 142 Ga. 536 ( 83 S.E. 117); Beadles v. Smith, 106 Ga. App. 31 ( 126 S.E.2d 250) and Reynolds v. Rentz, 98 Ga. App. 4 ( 104 S.E.2d 608).
It was not error to fail to charge on the law relating to the failure of the plaintiff's deceased to exercise care for his own safety. There was no pleading raising this issue and since the court did not charge on comparative negligence it was not required to charge the avoidance rule.
It was not harmful error to charge the jury that if they found that Pioneer American exercised control over the time, manner and method of Ralston's work, agency would exist. We have ruled in Division 2 that as a matter of law Pioneer American reserved the right to exert control. The charge was harmless.
Under the circumstances shown by the record the court did not err in refusing to declare a mistrial. Immediately after the jurors returned to the jury room after having had their supper it was reported to the court that some of them made telephone calls with a bailiff's permission. The judge called the jury in and inquired how many had made such calls. Five jurors answered that they had. The judge then inquired whether on such calls the jurors had discussed the case. the record shows that one juror stated that he called his wife and notified her that he did not know what time he would be home. After this statement by the juror the record shows as follows: "The Court: `But you did not discuss the case?' Mr. Juror: `No Sir.' (All jurors indicate they did not discuss the case by either saying no or nodding head no)."
The judge did not err in denying Pioneer's motion for a mistrial the ground of which was that keeping the jury out beyond midnight constituted an attempt by the court to coerce the jury. the judge completed his charge to the jury at about 6:45 p. m. on December 3, 1968. He then excused the jury for supper and asked them if they felt too sick or ill to begin their deliberation of the case. There being no response, the judge stated that he assumed that all jurors were in good health and feeling well. The jury returned from supper about 8:00 p. m. At about midnight the judge called the jury into the courtroom and asked if they were having any problem. They desired a recharge as to the form of the verdicts. This indicated that they had reached a verdict in matters of substance and were concerned about the forms of the verdicts. Within 40 minutes the jury had returned to the courtroom with a verdict in favor of the plaintiff. The jury then returned to its room and considered the verdict on the cross action and at 12:56 made a verdict thereon. Before the jury went back to its room after the recharge as to form of verdicts the judge stated: "I will say this to you... I don't want to say anything that might coerce or unduly influence you... [Y]ou are just as well qualified as any jury ever will be in Gordon County to make a verdict in this case... I would say that no juror is required to surrender his honest and sincere convictions in any case, but I will let you go back and see if you can make a verdict." The vote was 10 to 2, and the judge stated also: "The ten should strive to see it in the light of the two and the two should strive to see it in the light of the ten and make an honest and conscientious effort to reach a verdict. I would say that no juror is required to surrender his honest and sincere convictions in any case." We see no coercion generally or for one side or the other. As to holding court where the trials did not start at night, see Atlanta B. C. R. Co. v. Thomas, 64 Ga. App. 253 ( 12 S.E.2d 494) and McBrayer v. Ballenger, 94 Ga. App. 620, 623 ( 95 S.E.2d 718).
The court did not err in overruling the amended motion for a new trial filed by Pioneer American Insurance Company.
Judgment affirmed in part; reversed in part. Pannell and Quillian, JJ., concur.