dissenting.
I respectfully dissent as I do not agree with the majority that the Fortunes and Etheridge are precluded (as a matter of law) from recovering based on a theory of respondeat superior. Specifically, I believe there is proof that would authorize a jury’s finding that Ernie Malcolm James was Principal’s actual agent or, alternatively, that Principal clothed James with (apparent) authority to act as an authorized agent. Furthermore, I do not believe that Principal’s liability for negligent hiring and retention is foreclosed by a finding that Ernie Malcolm James acted outside the scope of his agency or that James was an independent contractor. Unlike liability based on respondeat superior, a principal may be liable for negligent hiring and retention if there is proof that the principal failed to act reasonably in selecting *373or retaining an independent contractor or agent for a position of public or private trust.
Respondeat Superior: Actual Authority. In Gulf Life Ins. Co. v. McDaniel, 75 Ga. App. 549 (43 SE2d 784), cert. dismissed at 203 Ga. 95 (45 SE2d 64), this Court held that an insurance agent’s agreement to conform to all company rules and regulations, along with the company’s right to revoke the agency at any time, constitutes sufficient indicia of control to authorize a finding of agency. Id. at 554. Such circumstances stand unrefuted in the case sub judice. Principal not only had the right to terminate James at any time, James agreed to obey all of Principal’s rules, regulations and instructions.6 Nonetheless, the majority discounts this evidence by citing a term in the parties’ agency agreements which provides that James is only required to comply with Principal’s rules “to the extent that these were not inconsistent with his status as an independent contractor.” The problem with this logic is that the above exception means nothing if the parties’ agreement, relations and conduct exclude the possibility that James is an independent contractor. See Gulf Life Ins. Co. v. McDaniel, 75 Ga. App. 549, 554-558, supra. In other words, if the circumstances indicate that Principal had the right to exercise certain control over James, other than just to see that the general terms of the parties’ agreement were met, then a jury would be authorized in finding that an agency (rather than an employer-independent contractor) relationship existed. Quinan v. Standard Fuel Supply Co., 25 Ga. App. 47 (1) (102 SE 543). Accordingly, it is from this perspective that I observe that James agreed (in two agency contracts) “to devote [his] principal business activity to the solicitation of life and health insurance policies or annuity contracts for Principal”; that Principal provided James with material for marketing its products; that James was subject to the supervision and control of a Principal manager; that this manager monitored, graded and assisted James at least once a week, and that James utilized and was subject to Principal’s marketing techniques and sales goals.7 Under strikingly similar circum*374stances, this Court held in Franklin Life Ins. Co. v. Hill, 136 Ga. App. 128, 132 (4) (220 SE2d 707), that “[i]t is unrealistic to contend that under [such hierarchical methods of control] or organization [an insurance agent is] a mere independent contractor for whose actions the company had no responsibility. [Cits.]” Id. at 132-133 (4). For the same reason, I believe the majority in the case sub judice incorrectly characterizes James (as a matter of law) as an independent contractor for whose actions Principal has no responsibility. For the reasons stated, I stand “ ‘unequivocally committed to the doctrine that the jury are arbiters of [such] issues of fact.’ Hines v. Chappell, 1 Ga. App. 480, 482 (58 S. E. 220).” Gulf Life Ins. Co. v. McDaniel, 75 Ga. App. 549, 553, supra.
Respondeat Superior: Apparent Authority. In Jester v. Hill, 161 Ga. App. 778 (288 SE2d 870), this Court held that a jury may impute liability to insurance providers where there is evidence that the criminal acts of an independent insurance broker (i.e., retaining the plaintiff’s insurance premiums but not effecting issuance of an insurance policy) were accomplished because the insurance providers clothed the broker with apparent authority to issue their insurance policies. Id. at 780 (1). The basis of this holding was the maxim that “ ‘[a]n estoppel will arise when a principal places an agent in a position of apparent authority, so that a person of ordinary prudence conversant with business usages and the nature of the particular business is justified in assuming that such agent has authority to perform a particular act and deals with the agent upon that assumption. Commercial Credit Corp. v. Noles, 85 Ga. App. 392, 396 (69 SE2d 309).’ ” Id. at 780 (1), 783. And the circumstances authorizing application of this rule was mere proof that the insurance providers gave the brokerage firm the advertising flyer and the insurance application (with their respective names printed thereon) the unscrupulous broker used to compel the plaintiff to part with his premium. Id. at 780 (1), 781.
In the cases sub judice, Principal provided James with business cards characterizing him as an “Agent” of “the Principal Financial Group,” and advertising brochures describing Principal’s insurance *375and securities products, i.e., disability insurance, individual retirement accounts and various savings plans. These marketing brochures were embossed with the logo, “The Principal Financial Group,” and comic strip scenes portraying Principal’s products as a secure haven for customers’ foreseen and unforeseen hardships. Also inscribed on these advertising brochures (but not mentioned in the majority opinion) are portrait-type photographs of Ernie Malcolm James and a standardized greeting from James (designed to instill trust and confidence), James’ signature, and his business address and phone number. It is my view, that these circumstances, evidence that Principal was publicly marketed (at times pertinent to the case sub judice) as an established insurance and securities provider and that Evelyn Etheridge and John Fortune trusted James because of his association with Principal, raise genuine issues of material fact as to whether Principal is estopped to deny agency, and therefore liability based on respondeat superior.
Negligent Hiring and Retention. Unlike liability based on respondeat superior, an employer may be liable under a theory of negligent hiring and retention if an employee injures a third party while acting outside the scope of his employment. Henderson v. Nolting First Mtg. Corp., 184 Ga. 724, 733 (2) (193 SE 347). Further, this Court has held that an insurance provider may be liable for negligent selection of an independent insurance broker if it is unrefuted that such an independent contractor “had a poor general reputation in the insurance community.” Jester v. Hill, 161 Ga. App. 778, 783 (2), supra. Indeed, this holding is consistent with the Georgia Supreme Court’s ruling that an employer may be liable for the negligent acts of an independent contractor if public policy demands imposition of such a duty. Peachtree-Cain Co. v. McBee, 254 Ga. 91 (1) (327 SE2d 188). And in this vein, it is relevant in the cases sub judice that Georgia’s public policy has long required insurance providers to investigate the background and qualifications of any person who applies for an insurance agent’s or subagent’s license or certificate of authority. See OCGA § 33-23-8 (e) and former OCGA § 33-23-8 (a) (3) (A) (Code 1933, § 56-811a, enacted by Ga. L. 1960, pp. 289, 293, § 1, p. 420, Ga. L. 1980, pp. 1163, 1164, § 4, p. 1165). In fact, since 1992 Georgia law has required insurance providers to document the extent of such investigations and certify that their applicants are trustworthy and qualified to act as insurance agents. OCGA § 33-23-8 (e).
In the cases sub judice, there is no conclusive proof that Principal complied with its public duty to make its own reflective inquiry into James’ character and ability as a professional insurance agent.8 Spe*376cifically, Principal cites no evidence that it checked the personal references James provided when he applied to serve as a Principal insurance representative, and it appears that Principal failed to make a deeper inquiry when one of James’ former employers noted (in response to a letter of inquiry) that James is not eligible for reappointment. It also appears that Principal never attempted to resolve an apparent discrepancy between a report from a private investigator, indicating that James sold “Herbalife” products in 1984, and a statement James made on a “Personal History” form, dated June 1990, indicating that he has no “selling experience” outside insurance and securities. Further, Principal fails to explain why no inquiry was made when James failed to answer the following question on his “Personal History” questionnaire: “Can you remain at [your current] job?” And it does not appear that Principal made inquiry in response to the following notation on a report on James submitted by a private investigator: “We have attempted to contact Mr. James in this investigation on numerous occasions but he has not been available.” It is my view, that these circumstances, along with proof that Principal was aware of James’ prior financial difficulties, his termination by another insurance carrier for alleged misapplication of policy premiums, and his failure to measure up to Principal’s own quality standards (as gleaned from standardized agent-evaluation procedures), raise genuine issues of material fact as to Principal’s liability for negligent hiring and retention of James. To say otherwise (in my view) diminishes the legislative mandate that insurance providers document and certify that their agents are trustworthy and qualified insurance professionals. See OCGA § 33-23-8 (e).
Decided November 17, 1995 Reconsideration denied December 6, 1995 Taylor & Roberson, Leah 0. Taylor, Ted Taylor, Jerry D. Roberson, John P. Tucker, Jr., for appellants. Carter & Ansley, Ben Kingree III, Elizabeth J. Bondurant, for appellees.I am authorized to state that Presiding Judge Pope joins in this dissent.
It is not only undisputed that Principal had the right to terminate James at any time, but there is little doubt that such termination was inevitable had James proved to be an unproductive sales agent or had he disobeyed Principal’s rules, regulations and instructions.
While the majority states that “Principal allowed James to sell the products of other companies,” two of the agency contracts James executed were entitled, “Career Agent’s Contract,” and required James “to devote [his] principal business activity to the solicitation of life and health insurance policies or annuity contracts for Principal Mutual Life Insurance Company.” These contracts referred to James as a “full-time” agent and provided in a section entitled, “AFFILIATION WITH COMPANY,” as follows: “You agree, in exchange for the issuance of this full-time agent’s contract and the valuable incidents to which it entitles you, to submit all of your applications for policies, except for [group plans of employer sponsored life and health insurance benefits, known as PEP (Planned Employee Program)], to us for underwriting and approval. You are free to sell the applicant a policy issued by *374another company if we decline the application or the applicant does not accept the policy as issued. You are not required to submit applications for PEP to us first.” Similar language appeared in another agency contract James executed entitled, “Career Assessment Phase.”
The majority also incorrectly concludes (as a matter of law) that “Principal did not require James ... to attend scheduled training for company agents.” There is proof that James was contacted (at least once a week) by a Principal supervisor who monitered and encouraged James, gave James direction on how to improve his skills and graded each and every contact James made on behalf of the company. In fact, there is proof that Principal offered James training for developing his skills as an insurance agant and provided James with materials aimed at marketing Principal’s insurance products and financial planning services.
Indeed, a “Personal History Form” from Ernie Malcolm James in Principal’s employ*376ment records indicates that Principal was more concerned with James’ ability to develop business with friends and acquaintances (via detailed inquiry into James’ civic and social activities) than with his personal character and his ability as a professional insurance agent.