Brown v. John Hancock Mutual Life Insurance

263 A.D. 872, 32 N.Y.S.2d 171, 1942 N.Y. App. Div. LEXIS 7150

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: January 5, 1942
• Status: Published

Opinion

In an action brought by the plaintiff-wife to recover damages for personal injuries sustained through the negligent operation of an automobile by defendant Moe Feffer, and by the plaintiff-husband for loss of services and for medical expenses, judgment in so far as appealed from, dismissing the complaint against defendant John Hancock Mutual Life Insurance Company, unanimously affirmed, with costs. (Dunne v. Contenti, 256 App. Div. 833; Braice v. Saunders, 262 id. 968.) This case is distinguishable from Burdo v. Metropolitan Life Ins. Co. (254 App. Div. 26; affd., 279 N. Y. 648), where the employer exercised control over the movements of the agent, even to the extent of prescribing the route to be followed by him in calling upon its policyholders. Here the agent was free to choose his own method of performing his work. The territory he was required to cover was of greater extent than in the Dunne and Braice cases (supra), but that fact did not invest the insurance company with control over the vehicle owned by his wife and operated by him. In the absence of any reservation by the insurance company of the right to control the vehicle, the agent, in operating it, was an independent contractor, and the rule of respondeat superior does not apply. (Hexamer v. Webb, 101 N. Y. 377, 383; Haykl v. Drees, 247 App. Div. 90; Malloy v. Scott, 248 id. 882.) Present — Lazansky, P. J., Hagarty, Carswell, Taylor and Close, JJ.