Mississippi Power & Light Co. v. Lembo

• Decision Date: 24 November 1947
• Docket Number: 36598.
• Citation: 202 Miss. 532,32 So.2d 573
• Court: Mississippi Supreme Court
• Parties: MISSIPPIPPI POWER & LIGHT CO. v. LEMBO.

32 So.2d 573

202 Miss. 532

MISSIPPIPPI POWER & LIGHT CO. v. LEMBO.

No. 36598.

Supreme Court of Mississippi

November 24, 1947

Pollard & Hamner, of Greenwood, for appellant.

Bell & McBee, of Greenwood, for appellee.

L. A. SMITH, SR., Justice.

Appellant on January 14, 1944, owned a passenger car, or coach, which had been in use at Indianola by its employees in the progress of what is denominated in the record as a 'Don't Waste Gas Check Up Campaign' referring to natural gas. The campaign was through and done at the time of the events of this case. The immediate managing representative of appellant had departed for Jackson, leaving the car in custody of another employee of the company, Miss Aldridge but, as far as we are able to gather from the record, without any instructions as to specific dealing with it. In it she had driven her said immediate superior to the bus station.

The company's business was over, as stated, and Miss Aldridge drove the car to a cafe, where Miss Waites, another employee of appellant, was eating supper. Miss Aldridge joined her, and the repast finished, they started to Itta Bena to pick up a personal friend, who telephoned that there had been a wreck, and asked them to come and get her. It is in the testimony that these two ladies used this car only 'to work with,' but on this occasion, it seems clear, that they were about their own private mission entirely apart from any errand for their employer, the appellant, and without its knowledge or direction.

Although the company had filled the car with gasoline the day before and it apparently had ample fuel at the time, the car stopped practically on the proper lane of the highway about half way between Indianola and Itta Bena because of fuel exhaustion. Only one front wheel was on the shoulder. It was a very dark and rainy night. In spite of the falling rain, Miss Waites who was driving, alighted and flagged a passing car, which stopped in its proper lane, after going about thirty yards beyond the stalled car, in order not to obstruct traffic. When this occurred, Miss Waites saw lights approaching from Indianola and she ran to stop whatever vehicle it was, if possible. These lights proved to be on the truck of appellee, driven by his employee, about the master's business, and was advancing at the rate of approximately thirty-five miles per hour. Miss Waites testified that both the tail and headlights of appellant's car were burning. The truck driver denied that they were. He said he did not discover the stalled car until he had crashed into it from behind, testifying that he was blinded by the headlights of still another car coming from the opposite direction.

Since the wrecked car was not being used about the master's business, or with its knowledge or direction on this mission but was manifestly being driven by the two women occupants on a personal errand to help their friend, appellant cannot be held to any negligence whatever for what happened at the scene of the wreck or the failure of the supply of gasoline. Bourgeois v. Mississippi School Supply Co., 170 Miss. 310, 155 So. 209, on suggestion of error. The case at bar is stronger for appellant than the case was for appellee there, since there appellee's employee was driving the master's truck to...