Opinion
No. 36350.
March 17, 1947. Suggestion of Error Overruled April 28, 1947.
AUTOMOBILES.
Where truck driver had gone 30 miles beyond the territory in which lay his duties and authority, and was traveling in the opposite direction therefrom at time of collision resulting in death of plaintiff's intestate due to driver's negligence, the driver was not acting in the scope of his employment and the truck owner could not be held liable for his negligence.
APPEAL from the circuit court of Stone county. HON. L.C. CORBAN, J.
Carl Marshall, of Gulfport, Jackson Young, of Jackson, and Gordon Boswell, of New Orleans, La., for appellant.
The evidence introduced in the trial below manifested without conflict or contradiction conclusively that if the defendant and appellee Martin was the driver of the truck involved in the said accident, he was not then and there acting within the scope and furtherance of any employment by, or agency for, the appellant; and for that reason alone, the peremptory instruction requested by the appellant in the court below should have been granted.
Stovall v. Jepsen, 195 Miss. 115, 13 So.2d 229; Barmore v. Vicksburg, S. P.R. Co., 85 Miss. 426, 38 So. 210; Bourgeois v. Mississippi School Supply Co., 170 Miss. 310, 155 So. 209; Shell Petroleum Corporation et al. v. Kennedy, 167 Miss. 305, 141 So. 335; Brand et al. v. Tinnin, 190 Miss. 412, 200 So. 588.
As the scintilla rule is not recognized in Mississippi as a basis for sustaining verdicts and judgments, and as the plaintiffs' evidence in support of the verdict and judgment "tending to prove" that the defendant and appellee Martin was the driver of the truck involved in the said accident amounted to no more than a scintilla of evidence, as the term is applied in Mississippi, and as the overwhelming weight of the direct evidence below was to the effect that said Martin was not the driver of the truck involved in said accident, the appellant was entitled to a direction of the verdict in the lower court.
Fatherree et al. v. Griffin, 153 Miss. 570, 121 So. 119; Columbus G.R. Co. v. Coleman, 172 Miss. 514, 160 So. 277; Thomas v. Williamson, 185 Miss. 83, 187 So. 220; Yazoo M.V.R. Co. v. Lamensdorf, 180 Miss. 426, 178 So. 80.
The plaintiffs in their declaration alleging that the said accident was caused, or its causation contributed to, by negligence of the defendant and appellee W.O. Martin, then and there averred to have been acting within the scope and furtherance of employment by the appellant to drive said truck, and the action having been tried below on that theory and issue, in their efforts at recovery against the appellant are not permitted here to depart from that declared theory of action and endeavor to sustain the judgment appealed from on some other undeclared, unknown, speculative and unproved ground.
Ozen v. Sperier et al., 150 Miss. 458, 117 So. 117; Williams v. Lumpkin, 169 Miss. 146, 152 So. 842; Seward v. First Nat. Bank in Meridian, 193 Miss. 656, 8 So.2d 236.
The jury in the court below having acquitted the defendant and appellee W.O. Martin, on the overwhelming evidence establishing the fact that he was not the driver of the truck involved in the said accident, and on unconflicting and uncontradicted proof that he could not have been driving the said truck at said time and place as an agent or employee of the appellant, and the appellant in said action being sought to be held liable for the alleged negligence of said Martin only on the doctrine of respondeat superior, the verdict of the jury exonerating said Martin entitled the appellant to a judgment of acquittal; and it was prejudicial error for the learned court below to enter judgment against the appellant, and to discharge the said Martin from liability, on the said verdict of the jury.
Illinois Cent. R. Co. v. Clark, 85 Miss. 691, 38 So. 97; St. Louis S.F.R. Co. v. Sanderson, 99 Miss. 148, 54 So. 885; Nelson v. Illinois Cent. R. Co., 98 Miss. 295, 53 So. 619; Granquist v. Crystal Springs Lumber Co., 190 Miss. 572, 1 So.2d 216; Vicksburg Gas Co. v. Ferguson, 140 Miss. 543, 106 So. 258; Shell Petroleum Corporation v. Kennedy, 167 Miss. 305, 141 So. 335; Bourgeois v. Mississippi School Supply Co., supra; Walker v. St. Louis-San Francisco R. Co., 214 Ala. 492, 108 So. 388; Southern Railway Co. v. Lockridge, 222 Ala. 15, 130 So. 557; Williams v. Hines, 80 Fla. 690, 86 So. 695; McInnis v. Chicago, etc., R. Co., 200 Mo. 347, 98 S.W. 590; Nashville C. St. L. Ry. Co. v. Byars, 252 Ky. 507, 67 S.W.2d 497; Illinois Cent. R. Co., v. Applegate's Adm'x., 268 Ky. 458, 105 S.W.2d 153; Chesapeake O. Ry. Co. v. Williams Adm'x., 300 Ky. 850, 190 S.W.2d 549.
The appellant in the plaintiff's theory of action, and in the entire evidence introduced below, being sought to be held liable to the plaintiff for the alleged negligence of the defendant and appellee W.O. Martin only on the principle of respondeat superior, and the action being prosecuted and tried to conclusion by the plaintiffs against the said Martin and the appellant jointly on that theory, the judgment rendered by the learned trial court acquitting, exonerating and discharging Martin, but awarding the plaintiffs damages against the appellants alone by reason only of the alleged fault of the said Martin, annihilated the appellant's chose in action against the said Martin for indemnification, and thereby deprives the appellant of its property without due process of law; the rendition of said judgment by the trial court being erroneous, as violative of the provisions of Section 14 of the Constitution of 1890, and as being contrary to the "due process" clause of Article XIV, Section 1, of the Amendments to the Constitution of the United States.
Granquist v. Crystal Springs Lumber Co., supra; Teche Lines, Inc., v. Pope, 175 Miss. 393, 166 So. 539; Central Surety Ins. Corp. v. Mississippi Export R. Co. (5 Cir.), 91 F.2d 125; Southern Railway Co. v. Carson, 48 U.S. 907; Code of 1942, Sec. 1988; Constitution of 1890, Sec. 14; Constitution of United States, Article XIV, Amendments; 39 C.J 1313, 1314; 16 C.J.S. 1196, Sec. 599; 14 R.C.L. 42; 18 R.C.L. 502; A.L.I., Restitution, Sec. 96; 40 L.R.A. (N.S.) 1147, 1153, 1154, notes; Cooley on Torts (4 Ed.), 292, 293, cases cited under note 88, 7 Labatt Master Servant (2 Ed.), p. 8011.
U.B. Parker, of Wiggins, and R.A. Wallace, of Gulfport, for appellees, Mrs. Lillie Robinson and Eldon Robinson.
The trial court correctly submitted the case to the jury. The judgment appealed from is supported by ample evidence and should not be disturbed.
Merchants Co. v. Tracy, 175 Miss. 49, 166 So. 340; Delta Cotton Oil Co. v. Elliott, 179 Miss. 200, 172 So. 737; Southern Bell Telephone Co. v. Quick, 167 Miss. 438, 149 So. 107; Primos v. Gulfport Laundry Cleaning Co., 157 Miss. 770, 128 So. 507; Callas v. Independent Taxi Owners Ass'n., 66 F.2d 192; Standard Coffee Co. v. Trippet (5 C.C.A.), 108 F.2d 161; Code of 1942, Secs. 8192, 8193, 8194; Laws of 1938, Ch. 200, 5 Am. Jur. 657, Sec. 281.
Under the evidence showing the duties of Martin's employment, the truck he operated for appellant could not have been detached from appellant's business, so long as it remained in operation in appellant's selling territory as it did.
Primos v. Gulfport Laundry Cleaning Co., supra; Indianola Cotton Oil Co. v. Crowley, 121 Miss. 262, 83 So. 409; Walters v. Stonewall Cotton Mills, 136 Miss. 361, 101 So. 495; Alden Mills v. Prendergaft, 149 Miss. 595, 115 So. 713; Gill v. L.N. Dantzler Lumber Co., 153 Miss. 559, 121 So. 153; S. W. Const. Co. v. Bugge, 194 Miss. 822, 13 So.2d 645, 146 A.L.R. 1190.
Appellant is chargeable, personally, with active and actionable negligence for breach of duty imposed by law, on account of defective condition of truck making it impossible for driver to give stop signal required by statute.
Walker v. Dickerson, 183 Miss. 642, 184 So. 438; Harper v. Wilson, 163 Miss. 199, 140 So. 693; Teche Lines v. Bateman, 162 Miss. 404, 139 So. 159; Wheat v. Wheat, 162 Miss. 595, 139 So. 849; Friis v. Gahan, 139 Miss. 375, 104 So. 170; Lucedale Automobile Co. v. Daughdrill, 154 Miss. 707, 123 So. 871; Slaughter v. Holsomback, 166 Miss. 643, 147 So. 318; Code of 1942, Secs. 8192, 8193, 8194; Laws of 1938, Ch. 200, Secs. 67, 68, 69.
Appellant's truckdriver (whoever he was) breached a legal duty to give stop signal, although truck was so defective he could not give it; therefore, he and appellant, the truck owner, are joint tort-feasors and are jointly and severally liable.
Collins Baking Co. v. Wicker, 166 Miss. 264, 142 So. 8; Russell v. Williams, 168 Miss. 181, 150 So. 528; Mississippi Power Light Co. v. Smith, 169 Miss. 447, 153 So. 376; Wesley v. English (5 C.C.A.), 71 F.2d 392; Cardell v. Tennessee Electric Power Co. (5 C.C.A.), 79 F.2d 934; Dixie Motor Coach Corporation v. Lane (5 C.C.A.), 116 F.2d 264; Code of 1942, Secs. 8192, 8193, 8194; Laws of 1938, Ch. 200, Secs. 67, 68, 69; 5 Am. Jur. 657, Sec. 281.
Appellant and its truckdriver being joint tort-feasors, plaintiffs had the right to sue one or both of them and there can be no contribution between them.
Oliver v. Miles, 144 Miss. 852, 110 So. 666, 50 A.L.R. 357; Thomas v. Rounds, 161 Miss. 713, 137 So. 894; Moore v. Foster, 182 Miss. 15, 180 So. 73; Mississippi Cent. R. Co. v. Roberts, 173 Miss. 487, 160 So. 604, 296 U.S. 536, 56 S.Ct. 107, 80 L.Ed. 381.
Under Section 1988, Code of 1942, failure of the jury to render verdict against more than one of several co-defendants does not affect the validity of the judgment against one of such defendants (appellant), especially where, as here, all defendants are joint tort-feasors and are jointly and severally liable.
Illinois Cent. R. Co. v. Clark, 85 Miss. 691, 38 So. 97; Nelson v. Illinois Cent. R. Co., 98 Miss. 295, 53 So. 619, 31 L.R.A. (N.S.) 689; St. Louis S.F.R. Co. v. Sanderson, 99 Miss. 148, 54 So. 885; Mississippi Power Light Co. v. Smith, supra; Code of 1942, Sec. 1988.
In reply to appellant's brief, see: Merchants Co. v. Tracy, supra; Southern Bell Telephone Telegraph Co. v. Quick, supra; Delta Cotton Oil Co. v. Elliott, supra; Primos v. G.L. C. Co., supra; Mississippi Power Light Co. v. Smith, supra; Teche Lines v. Bateman, supra; Slaughter v. Holsomback, supra; C. R. Stores, Inc. v. Scarborough, 189 Miss. 872, 196 So. 650; Graves v. Johnson, 179 Miss. 465, 176 So. 256; Jefferson v. Yazoo M.V.R. Co., 194 Miss. 729, 11 So.2d 442; Illinois Cent. R. Co. v. Price, 72 Miss. 862, 18 So. 415; Yazoo M.V.R. Co. v. Schraag, 84 Miss. 125, 36 So. 193; Anderson v. Daniel, 136 Miss. 456, 101 So. 498; Louisiana Oil Corporation v. Davis, 172 Miss. 126, 158 So. 792; Weis v. Aaron, 75 Miss. 138, 21 So. 763; Illinois Cent R. Co. v. Clark, 85 Miss. 691, 38 So. 97; Nelson v. Illinois Cent. R. Co., supra; Ulmer v. Pistole, 115 Miss. 485, 76 So. 522; Collins Baking Co. v. Wicker, 166 Miss. 264, 142 So. 8; Russell v. Williams, 168 Miss. 181, 150 So. 528; Hardware Dealers Mutual Fire Ins. Co. of Wisconsin v. Glidden Co. et al., 284 U.S. 151, 76 L.Ed. 714; Anderson National Bank et al. v. Luckett et al., 321 U.S. 233, 88 L.Ed. 692; Bowman v. Lewis et al., 101 U.S. 22, 25 L.Ed. 989; Iowa Central R. Co. v. State of Iowa, 160 U.S. 389, 40 L.Ed. 467; West et al. v. State of Louisiana, 194 U.S. 258, 48 L.Ed. 965; Southern R. Co. v. Carson, 194 U.S. 136, 48 L.Ed. 907; Union Stock Yards Co. of Omaha v. Chicago B. Q.R. Co., 196 U.S. 525, 49 L.Ed. 453; Code of 1942, Secs. 1511, 1512, 1544, 1988, 8192, 8193, 8194; Laws of 1938, Ch. 200, Secs. 67, 68, 69.
Joe H. Daniel, of Jackson, for appellee, W.O. Martin.
Appellee Martin submits that the verdict of the jury in this cause, being in accord with the overwhelming weight of the evidence, is final and conclusive, and appellant is estopped from raising any question in relation thereto. Appellee Martin further submits that this Court should affirm the verdict and judgment of the trial court insofar as this appellee is concerned.
Gulf S.I.R. Co. v. Simmons, 153 Miss. 327, 121 So. 144; Illinois Cent. R. Co. v. Smith, 102 Miss. 276, 59 So. 87; Louisville Nashville R. Co. v. Jones, 134 Miss. 53, 98 So. 230; Brotherhood of Railroad Trainmen v. Walker, 165 Miss. 698, 147 So. 655; Teche Lines, Inc., v. Pope, 175 Miss. 393, 116 So. 539; Central Surety Insurance Corporation v. Mississippi Export R. Co., 91 F.2d 125, 127.
Argued orally by Carl Marshall, for appellant, and by U.B. Parker, for appellees.
Apellees, Mrs. Lillie Robinson and her minor son Eldon Robinson, wife and child respectively of Roy L. Robinson, deceased, brought an action against Tri-State Transit Company of Louisiana, Inc., and its alleged servant, Pat Havens, and against Kramer Service, Inc., and its alleged servant, W.O. Martin, to recover damages for the death of Robinson caused, as claimed by plaintiff, by the negligence of said defendants. The declaration set out that a Kramer truck, driven by Martin, and a Tri-State bus, driven by Havens, were proceeding in a southerly direction some three miles south of Wiggins, Mississippi, the bus being behind and near the truck. As ground of liability against Tri-State and Havens, it asserted that Havens, as such driver and servant, was driving in a fast and reckless manner; that rain was falling and the weather foggy, and he negligently undertook to pass the Kramer truck and crossed into the left lane of the road; that Robinson was proceeding north in that lane, where he had a right to travel, and that there was a head-on collision between the automobile being driven by Robinson and the bus driven by Havens, resulting in the death of Robinson. As ground of liability against Martin and Kramer, it was alleged that Martin suddenly, and without warning, decreased his speed, making it necessary for Havens to either pull into the left lane or strike the truck, and that the truck had over its top a tarpaulin which was loose and flapping on the left side of the truck, rendering it impossible for Havens to see a signal had Martin given one. In other words, liability of Tri-State and Kramer rests upon the negligence of their respective employees while such employees were acting within the scope of their employment and about the business of their employers.
In the course of the trial, plaintiffs took a non-suit as to Tri-State, having reached a settlement with that defendant. The case proceeded against Havens, Martin and Kramer. The jury returned a verdict in favor of Havens and Martin, thereby exonerating them from negligence, but found against Kramer in the sum of $19,500, from which verdict, and the judgment entered thereon, Kramer appeals here.
A number of serious questions are raised on the appeal, but we deem it necessary for us to pass upon only one of them, which will dispose of the case. And that is whether or not Martin was about Kramer's business and acting within the scope of his employment at the time and place of the accident, assuming, but not deciding, that the truck involved was owned by Kramer and was being driven by Martin. And, in this connection, it should be stated that under the pleadings and proof of plaintiffs, Martin cannot be separated from the truck. Plaintiff's assert that the truck was being driven by Martin and that it was his negligence that caused the accident, and they seek a personal judgment against him because of such negligence. Their proof is directed to identifying him as such driver. There is no intimation that it was Kramer's truck being driven by some one else.
The record discloses that Kramer had the exclusive right to distribute and deliver certain brands of beer in a designated territory, which territory, it may be assumed, although it is not entirely clear, included the place of the accident. Martin was employed by Kramer to drive one of its trucks and deliver beer in a specified territory. That territory was within the confines of Camp Shelby, some ten miles south of Hattiesburg. At times he was especially directed to deliver within Hattiesburg, but these were special individual assignments in particular cases. It is further shown that during the course of his rather extended employment he, by special direction in emergencies, had assisted a Mr. Stokes in making one or two deliveries at Wiggins, this being within Stokes' exclusive territory, on which occasions Stokes drove his own truck, which was an International truck, color red, whereas the truck always driven by Martin was a blue Chevrolet truck. But, it is not intimated that Martin had any such special assignment on this occasion. On the contrary, it is shown without dispute that he did not have. It is further shown, without any conflict, that Martin had no authority to be at this place at this time in the discharge of any duty as employee of Kramer, and if he were there he was on a private mission of his own. He had entirely abandoned his master's business and was far from the scene of his duties. The scene of the accident was some 30 miles south of Camp Shelby. It might be added that this tragedy occurred about 8:30 on the morning of Monday, September 1, 1941, which was Labor Day. Martin and a number of disinterested persons, who were operating canteens within Camp Shelby, to whom Martin regularly delivered beer, testified, positively and unequivocally, that Martin was continuously within Camp Shelby from about 7:30 o'clock in the morning to around noon of the day in question, delivering beer to these canteens, using for that purpose the truck claimed to have been in the accident. But, aside from that, it is uncontradicted, that if he were present and involved in this accident, he was not about Kramer's business and had no right, authority or duty to be there as a representative of Kramer. He had gone some 30 miles beyond the territory in which lay his duties and authority, and was traveling in the opposite direction therefrom. In such case, the master is not liable for the acts of the servant. Thomas-Kincannon-Elkin Drug Co. v. Hendrix, 175 Miss. 767, 168 So. 287; Bourgeois v. Mississippi School Supply Co., 170 Miss. 310, 155 So. 209; Shell Petroleum Corp. et al. v. Kennedy, 167 Miss. 305, 141 So. 335; Brand et al. v. Tinnin, 190 Miss. 412, 200 So. 588; Stovall v. Jepsen, 195 Miss. 115, 13 So.2d 229.
Reversed and judgment here for appellant.