I respectfully dissent. The record in this case negatives and destroys the essential element of agency.
If the evidence could be said by any extreme construction to raise a presumption of agency (by the mere fact that the driver of his own automobile at times solicited insurance applications for the insurance company, and at the time of the accident had application forms and sales material of the company in his car), that presumption was rebuttable, and when rebutted, as it was here, the presumption vanishes and raises no issue of fact. Mitchell v. Ellis, Tex.Civ.App., 374 S.W.2d 333, 335, writ refused.
As in the dissent in Great National Life Insurance Co. v. Chapa, Tex.Civ.App., 373 S.W.2d 280, 283, id., (Tex.Sup. 1964)377 S.W.2d 632, where there was a similar question in a plea of privilege case, there is here no vicarious liability of appellant for the independent tort of MacDonald.
MacDonald had been to Houston where he spent two or three days selling insurance. He was an independent commission salesman, taking applications for appellant's policies. He was paid no salary; he was paid no bonus, mileage or traveling expense; he furnished his own car in which appellant had no interest and paid for his own gasoline. He attended no sales meetings. Appellant made no withholding deduction for income tax or social security from his commission check, gave MacDonald no instructions as to where to sell, who to sell, or how, where, or when to drive. It was immaterial to the company whether MacDonald even used an automobile. It designated no route for him to travel; he selected his own. He went by the company's Dallas office once each week where he was furnished 'leads', which he could follow up or not as he chose, and he was not required to report his use or the results of these leads. He was not required to go to the office, and did not 'operate out of the office'. He paid the company for 'leads' resulting in sales. *Page 761 He signed a contract with appellant but was 'not sure exactly what it was' except he 'knew what percentage' he was to receive. He was simply, as he said, 'self-employed', an 'independent insurance commission agent'. He was his 'own boss'.
On the occasion of the accident MacDonald was on his way home from Houston to Hurst in Tarrant County. He 'cut off from that route' he usually took in order to come through Hillsboro to visit his father-in-law, after which he planned to continue to Hurst. He was not going to Hillsboro to 'sell insurance or solicit'. No prima facie case of agency having been presented, it would be anomaly to hold there was a presumption, or that appellant had a burden under Art. 1995.
The evidence does not raise the agency issue. I would reverse. Burt v. Lochausen, 151 Tex. 289, 249 S.W.2d 194. American Nat. Ins. Co. v. Denke, 128 Tex. 229, 95 S.W.2d 370,376, 107 A.L.R. 409.