Bourgeois v. Mississippi School Supply Co

Decision Date05 June 1934
Docket Number30994
CourtMississippi Supreme Court
PartiesBOURGEOIS v. MISSISSIPPI SCHOOL SUPPLY CO

Division A

1. APPEAL AND ERROR.

On reviewing peremptory instruction, everything which evidence established, either directly or by reasonable inference, must be considered as proven against party in whose favor instruction was granted.

2 AUTOMOBILES.

Where uncontradicted evidence showed that truck which collided with plaintiff's automobile was owned by defendant and that defendant's servant drove truck for defendant, defendant had burden to prove that its servant had abandoned duties of employment and gone about some purpose of his own in which defendant's business was not concerned, and which was not incident to employment.

3 AUTOMOBILES.

Where evidence leaves in doubt question whether automobile owner's servant abandoned duties of employment and went about some purpose of his own at time of collision, question is for jury.

4 AUTOMOBILES.

Evidence that truck involved in collision was owned by defendant and was driven by law defendant's servant created presumption that relation of master and servant existed.

5. AUTOMOBILES.

Truck driver employed to deliver truck owner's goods who drove truck to his home for lunch, and on way back departed from direct route to call for another of truck owner's employees, held not engaged in master's business so as to render truck owner liable for injuries and damage resulting when truck, while on way to such other employee's home, collided with automobile.

6. AUTOMOBILES.

Mere lending of one's automobile to another does not create liability of owner to any one injured by negligent driving thereof, though if owner places automobile in hands of incompetent driver, he may or may not be liable according to the circumstances.

HON. W. H. POTTER, Judge.

APPEAL from circuit court of Hinds county HON. W. H. POTTER, Judge.

Action by Mrs. Marie E. Bourgeois against the Mississippi School Supply Company. From an adverse judgment, plaintiff appeals. Reversed and remanded.

On suggestion of error.

Former opinion withdrawn, suggestion of error sustained, and cause affirmed.

Suggestion of error sustained and cause affirmed.

W. A. Shipman and S. C. Broom, both of Jackson, for appellant.

The court below erred in holding as a matter of law that the servant of the appellee whose negligence is alleged to have been the proximate cause of appellant's alleged injuries, was not in and about appellee's business nor in and about anything incidental thereto, or in furtherance thereof.

Slaughter v. Holsomback, 147 So. 318.

The rule is declared in the Slaughter case that the doctrine of "respondeat superior" is that he who acts through another is himself the actor.

Richie v. Waller, 63 Conn. 155, 38 A. S. R. 361; Barmore v. A. & V. R. R. Co., 85 Miss. 426, 38 So. 210; Loper v. Y. & M. V. R. Co., 145 So. 745; 39 C. J. 1282; A. L. I. Restatement, Agency, Tent. Draft No. 5, page 53, section 454.

It is perfectly manifest that the question, was the servant engaged about his master's business, or in doing something incidental thereto, vel non, should have been submitted, under proper instructions, to the jury, as any other fact in issue.

Southern Bell Tel. & Tel. Co. v. Quick, 149 So. 107; Barmore v. V. S. & P. Ry. Co., 85 Miss. 426, 38 So. 210; Slaughter v. Holsomback, 147 So. 318; Ritchie v. Waller, 63 Conn. 155, 38 Am. St. Rep. 361; Loper v. Y. & M. V. Ry., 145 So. 743; 39 C. J. 1282; A. L. I. Restatement, Agency, Tent. Draft No. 5, page 53; Riley v. Standard Oil Co., 231 N.Y. 301, 132 N.E. 97; Bryan v. Burns, 203 N.Y.S. 634; Pallocco v. Lehigh Ry. Co., 236 N.Y. 110, 140 N.E. 212; Sundines case, 218 Mass. 1, 105 N.E. 433; Erie R. Co. v. Winfield, 244 U.S. 170, 61 L.Ed. 1057; Bush v. Sinclair Rooney & Co., 201 N.Y.S. 804; Butler v. Hyperion Theatre, 100 Conn. 551, 124 A. 220; Wagnitz v. Shareteg, 89 Cal.App. 511, 265 P. 318; Behrens v. Hawkeye Oil Co., 151 Minn. 478, 187 N.W. 605; Boehmer v. Short, 184 Ark. 672, 43 S.W.2d 541; Kavale v. Morton Salt Co., 329 Ill. 445, 160 N.E. 752; Crowell v. Duncan, 145 Va. 489, 134 S.E. 576; American Piano Co. v. Dackweller, 94 Misc. 712, 160 N.Y.S. 270; Perry v. Haritos, 100 Conn. 476, 124 A. 44; Barney v. Magenis, 241 Mass. 268, 135 N.E. 142; Dennis v. Miller Auto Co., 73 Cal.App. 293, 238 P. 739; Kruse v. White Bros., 81 Cal.App. 86, 253 P. 178; Edwards v. Ernest, 208 Ala. 539, 94 So. 598; Barz v. Fleischman Yeast Co., 308 Mo. 288, 271 S.W. 361; Peterson v. R. R. Co., 265 Mo. 462, 178 S.W. 182; Drake v. Norfolk Steam Laun. Corp., 135 Va. 354, 116 S.E. 668; Loomis v. Hollister, 75 Conn. 718, 56 A. 561; Steffen v. McNaughton, 142 Wis. 49, 124 N.W. 1016; Nord v. W. Mich. Flooring Co., 238 Mich. 669, 214 N.W. 236; Jordan-Stabler Co. v. Taukersly, 146 Md. 454, 126 A. 65; Gulf Refining Co. v. Texarkana, etc., R. Co., 261 S.W. 169; Fleischman Yeast Co. v. Howe, 213 Ky. 110, 280 S.W. 496; Blaker v. Phil. Elec. Co., 60 Pa. S.Ct. 56.

Everything must be considered as proved which the evidence establishes either directly or by reasonable inference against the party asking for the peremptory instructions.

Dean v. Brannon, 139 Miss. 312, 104 So. 173; McKinnon v. Braddock, 139 Miss. 434, 104 So. 154; Wise v. Peugh, 140 Miss. 165, 106 So. 81; N. O., etc., R. Co. v. Jackson, 140 Miss. 375, 105 So. 770; N. O. etc., R. Co. v. Martion, 140 Miss. 410, 105 So. 864; St. L., etc., R. Co. v. Nixon et al., 141 Miss. 677, 105 So. 478; Yates v. Houston, 140 Miss. 881, 106 So. 110; Gulf, etc., R. Co. v. Hales, 140 Miss. 829, 105 So. 458.

A vice principal is the representative of the master, for whose acts and negligence the master is responsible.

So. Ry. Co. v. Cheaves, 36 So. 691, 84 Miss. 565; Barron Motor Co. v. Bass, 150 So. 202; Burkard v. A. Leschen Rope Co., 117 S.W. 35; Smith v. Am. Car. & Fdy. Co., 99 S.W. 122; Benak v. Paxton, etc., Iron Works, 124 N.W. 461, 85 Neb. 836; Dean v. Brannon, 104 So. 175, 139 Miss. 312.

Where the master delegates to an employee the performance of any duty devolving upon him, such employee stands in his place and becomes a vice principal, and the master is liable for his negligence.

Stearns-Culver L. Co. v. Fowler, 50 So. 680, 58 Fla. 362; Faren v. Sellers, 3 So. 363; Savant v. Goetz, 107 So. 621, 160 La. 916; 39 C. J., page 1297, sec. 1494, and page 1298, sec. 1495, and page 1305, sec. 1503.

Watkins & Eager, of Jackson, for appellee.

Even if the employer gives his permission to the use of his automobile by an employee to go to lunch, such use being in no way connected with the business of the employer, he is not liable for the acts of the employee at such time.

2 Berry on Automobiles (6 Ed.), page 1139, par. 1375.

The use by the chauffeur of the owner's vehicle for the purpose of going to and from his place of employment is a use for the purpose of the chauffeur, and the owner is not liable for an injury occasioned while it is being so used, either without his knowledge or consent or with his permission, as, for example, where he is going to or returning from a meal.

42 C. J. 1108, par. 868.

There is not one scintilla of evidence that the driver was using the appellee's truck for any purpose, even remotely, connected with the business of the master.

There was no relationship of master and servant.

Woods v. Clements, 113 Miss. 720, 74 So. 422; Winn v. Haliday, 109 Miss. 691, 69 So. 685; Woods v. Franklin, 151 Miss. 635, 118 So. 450; Dempsey v. Frazier, 119 Miss. 6, 80 So. 341; Isaacs v. Prince & Wilds, 133 Miss. 206, 97 So. 558.

The rule is that the mere lender of an automobile is not liable to one who is injured by the negligence of the driver of such automobile.

2 R. C. L. 1201, par. 35; Sharples v. Watson, 157 Miss. 241, 127 So. 779; Smith v. Dauber, 155 Miss. 694, 125 So. 102.

There is absolutely no evidence in this case that Woodson was a reckless and careless driver, and so known to the appellee, although one count of the declaration so alleged. The proof is to the opposite effect.

McLaurin v. McLaurin Furniture Co., 166 Miss. 180, 188, 146 So. 877.

The evidence conclusively showed that the servant was not engaged in the master's business, but upon a mission of his own, and which mission was not incident to the employment for which the servant was hired.

1 Restatement of the Law of Agency, page 508.

The fact that the act is done at an unauthorized place or time or is actuated by a purpose not to serve the master indicates that the act is not within the scope of the employment.

1 Restatement of the Law of Agency, page 513.

An act of a servant is not within the scope of employment if it is done with no intention to perform it as a part of or incident to a service on account of which he is employed.

Isaacs v. Prince & Wilds, 133 Miss. 206, 97 So. 558; Smith v. Dauber, 155 Miss. 694, 125 So. 102.

ON SUGGESTION OF ERROR.

McGowen, J., delivered the opinion of the court on suggestion of error.

OPINION

McGowen, J.

After a thorough re-examination of this case on suggestion of error, aided by counsel on both sides, we have decided that the suggestion of error should be sustained, the former opinion, reported in 152 So. 642, withdrawn, and this opinion substituted therefor.

Mrs. Bourgeois sued the Mississippi School Supply Company for personal injuries sustained by her and for damages to her automobile caused by a collision with the appellee's truck, and, at the conclusion of the evidence, the court below sustained a motion to exclude the evidence of the plaintiff, and directed a verdict for the defendant. Mrs. Bourgeois appeals therefrom.

John Woodson, a negro employee of the appellee, the Mississippi School Supply Company, drove its truck for the...

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