Eagle Motor Lines v. Mitchell, 39377

• Decision Date: 16 March 1955
• Docket Number: No. 39377,39377
• Citation: 223 Miss. 398,78 So.2d 482
• Parties: EAGLE MOTOR LINES, Inc v. Mrs. Pearl MITCHELL.
• Court: Mississippi Supreme Court

Page 482

78 So.2d 482

223 Miss. 398

EAGLE MOTOR LINES, Inc v. Mrs. Pearl MITCHELL.

No. 39377.

Supreme Court of Mississippi.

March 16, 1955.

Huff & Williams, Meridian, for appellant.

Snow & Covington, Meridian, for appellee.

ARRINGTON, Justice.

Mrs. Pearl Mitchell filed her suit in the Circuit Court of Lauderdale County against Eagle Motor Lines, Inc., an Alabama corporation, doing business in the State, and Joe Burnham, to recover damages for personal injuries. Her declaration, as amended, in effect charged negligence in two respects, namely, (1) that Joe Burnham, as agent and in the scope of his duty and employment for Eagle Motor Lines, negligently drove one of its large trucks into the intersection of Highways 11, 80, and 22nd Avenue in the City of Meridian and negligently collided with the automobile which she was driving, and (2) that Joe Burnham, at the time, was intoxicated, and that Eagle Motor Lines knew, or by the exercise of ordinary or reasonable diligence should have known, that prior to and during his employment, he drank intoxicating liquor to excess.

The answer of Joe Burnham amounted to a general denial of the allegations of the declaration. The answer of Eagle Motor Lines admitted that the truck, which was involved in the collision, belonged to it; and that Joe Burnham was a regular employee; but it averred that, at the time and on the occasion in question, he was on a mission of his own, and was not in the business of Eagle Motor Lines and was not acting within the scope of his employment. It also denied that it knew, or that in the exercise of reasonable or ordinary care, it should have known, that Joe Burnham drank intoxicating liquor to excess.

The jury returned a verdict for the plaintiff in the sum of $20,000 against both defendants; but only Eagle Motor Lines has appealed.

On the morning of June 21, 1951, Mrs. Mitchell, who lived south of Meridian, was proceeding to town in her Chevrolet automobile. Her grandson and a little Negro boy were also in the car. She approached the intersection of Highways 11, 80 and 45, or 22nd Avenue, on the Tom Bailey Drive, which is equipped with signal lights, namely, green to go, and red to stop. The red light was on and she stopped. When she got the green light, she started across. However, before she could get over the intersection, a large truck, coming west on Highway 80, ran through the red light, and collided with her car before she could stop or get out of the way. The truck passed Sylvester Taylor in a dump truck about 100 yards east of the intersection. At that time the brakes were on and the wheels were screeching. It skidded, ran through the red light, and struck the Chevrolet car in the right side, throwing Mrs. Mitchell out upon the pavement.

When Robert L. Birdsong, with the Police Department, arrived shortly afterwards, he opened the truck door, and Joe Burnham, who was under the steering wheel, fell out. Burnham's tongue was thick, he could not hold himself up, and the witness had to lead him to the police car. Birdsong was positive that Burnham was drunk. Skid marks appeared on the pavement for a distance of 87 1/2 yards, from the place where the brakes were applied to where the truck stopped. Sam Keller, another traffic officer, gave full corroboration as to the distance of the skid marks, that Burnham was drunk, and as to preferring charges against him. Burnham posted a bond in the sum of $10.50, for running a red light, and plead guilty and paid a fine of $50.50 for driving while intoxicated.

Joe Burnham's home was at Hanceville, Alabama, about 35 miles from Birmingham, the home office of Eagle Motor Lines. Miss Ruth Lovelace, who lived at Hanceville, by deposition, testified that she was acquainted with Burnham, and that she knew his general reputation for drinking intoxicating liquor on and prior to June 21, 1951, and that such reputation was that he was a drunkard. Likewise another neighbor, Conrad Howse, testified that it was the general talk that Burnham drank. Another neighbor, Grover Roberts, testified that Burnham had the general reputation of getting under the influence of, and becoming intoxicated from, drinking intoxicating liquor.

It was shown by Ocie Cook, an agent of the company, called as an adverse witness, that Burnham, about 5:30 on the afternoon of June 19, 1951, was dispatched with the truck to deliver a load of freight to Waynesboro, Mississippi, about 175 miles away. The gross weight of the truck, loaded, was 52,100 pounds. He was to drive for ten hours and then sleep, and of course could not return that night. The truck was in his care, and admittedly it was his duty to see that it had gas and oil and was properly serviced. This witness was in full charge of selecting and firing drivers. About 1947, Burnham drove a truck of the company for about a year, and the witness considered him a good driver. He went back to work the latter part of 1950. The witness testified that he had never heard of Burnham's using liquor or driving under its influence. But he knew that Burnham lived at Hanceville and admitted that he had never inquired of Burnham's neighbors, or talked to anyone at Hanceville about him. He also admitted that the company had a charge account with the Ross Service Station in Meridian.

Dallas Light drove another Eagle truck on the same trip to Waynesboro. He and Burnham did not arrive at their destination until about 1:30 the next morning, and did not complete unloading until 3:30 or 4 o'clock that afternoon. They then returned to Meridian about 7 o'clock in the evening, driving to the Ross Service Station, where Light 'gassed up' his truck. Burnham simply parked his. They ate, loitered about town, and finally drove out to the Log Cabin in Burnham's truck. Later they returned to the Ross Service Station, and then, after getting into their separate trucks, they drove to the Blue Top, another tavern, several miles east of Meridian, to eat breakfast. Light then went on to Birmingham. Burnham met up with Claude Johnson at the Blue Top and left his truck there during an hour or so, and went with Johnson and his woman companion to several other taverns. They had several drinks and returned to the Blue Top. Johnson and his companion then started to Meridian, thinking that Burnham was going to Birmingham. However, when they were in about three and one-half miles of Meridian, Burnham passed them in his truck, going west. He and Johnson recognized each other at the time, but neither stopped.

Burnham testified that he and Johnson had drunk about a half pint of liquor but that he was not drunk. When he left the Blue Top and was traveling west toward Meridian, he said that he was going back to the Log Cabin southwest of Meridian, to see Johnson with whom he had been going about for an hour or so. He had made no further engagement with Johnson, knew that he had left in an automobile, and knew when he overtook and passed Johnson. He admitted that he made no effort to stop Johnson at the time. He said that he had some personal business with Johnson, but declined to tell what it was. He said that he was going 45 or 50 miles an hour and that he was caught at the intersection as the green light switched to red, and that although he did everything he could, his truck struck the car. He admitted that he had drunk liquor before and after he began to work for Eagle Motor Lines, but declined to say how often. He did say that he never drank while at work. He admitted that Miss Lovelace, Green Roberts and Conrad Howse should know his reputation. On cross-examination, he was asked if he did not, in the summer of 1952, have a conversation with Attorney Ed Snow and Charlie Mitchell, husband of the appellee, in which he said that he was drunk on the occasion of the collision, and that he did not know just exactly where he was going, but that he reckoned he was going back to the filling station. He admitted a conversation, but denied that he made that statement.

Fred Grimmett, driving a truck which he had leased to Eagle Motor Lines, testified that Burnham had a general reputation for sobriety in the community of Hanceville up to June 21, 1951. Claude Johnson had seen Burnham take a drink on four different occasions in Birmingham.

In rebuttal, Charlie Mitchell testified that Burnham made the statement about which he was questioned and which appears above.

The record is bare of proof that oil or gas was put in the truck at any time on the trip. There was proof that it could not be serviced with oil or gas at the Blue Top. It was admitted that Eagle had a charge account at the Ross Service Station.

It was admitted that Joe Burnham was a regular driver for Eagle, and that the truck which he was driving and which collided with the Chevrolet belonged to Eagle. From those facts it is presumed that Burnham was then engaged in the furtherance of Eagle's business and in the line of his appointed duties. Barmore v. Vicksburg, S. & P. Ry. Co., 85 Miss. 426, 38 So. 210, 70 L.R.A. 627; Slaughter v. Holsomback, 166 Miss. 643, 147 So. 318; Southern Bell Telephone & Telegraph Co. v. Quick, 167 Miss. 438, 149 So. 107; Bourgeois v. Mississippi School Supply Co., 170 Miss. 310, 155 So. 209; Merchants Co. v. Tracy, 175 Miss. 49, 166 So. 340.

The burden, therefore, was on Eagle to prove that Burnham had abandoned the duties of his employment, and had gone about some purpose of his own, in which Eagle's business was not concerned, and which was not incident to his employment. Barmore v. Vicksburg, S. & P. Ry. Co., supra; Slaughter v. Holsomback, supra; Southern Bell Telephone & Telegraph Co. v. Quick, supra; Bourgeois v. Mississippi School Supply Co., supra; Merchants Co. v. Tracy, supra.

Where the testimony leaves this question in doubt, the issue must be submitted to the jury. Barmore v. Vicksburg, S. & P. Ry. Co., supra; Southern Bell Telephone & Telegraph Co. v. Quick, supra; Bourgeois v. Mississippi School Supply...