Buckley v. United Gas Public Service Co.

• Decision Date: 01 June 1936
• Docket Number: 32288
• Citation: 168 So. 462,176 Miss. 282
• Court: Mississippi Supreme Court
• Parties: BUCKLEY v. UNITED GAS PUBLIC SERVICE CO

168 So. 462

176 Miss. 282

BUCKLEY v. UNITED GAS PUBLIC SERVICE CO

No. 32288

Supreme Court of Mississippi

June 1, 1936

Division B

Suggestion Of Error Overruled September 28, 1936.

APPEAL from circuit court of Hinds county HON. J. P. ALEXANDER Judge.

Action by J. P. Buckley against the United Gas Public Service Company and another. From a judgment in favor of the United Gas Public Service Company, the plaintiff appeals, and from the adverse judgment, defendant Roy L. Stegall attempted to cross-appeal. Affirmed.

Affirmed.

Ross R. Barnett, P. Z. Jones, Arden Barnett, and J. Morgan Stevens, all of Jackson, for appellant.

Appellant was an invitee with interest, and, therefore, not a fellow servant, volunteer or licensee.

Hamilton Bros. v. Weeks, 155 Miss. 754, 124 So. 798; Belzoni Hardwood Lbr. Co. v. Langford, 127 Miss 234, 89 So. 919; 39 C. J. 554, sec. 664; McIntyre Ry. Co. v. Bolton, 43 Oh. St. 224, 1 N.E. 333; Eason v. S. & E. T. Ry. Co., 65 Tex. 577; Welch v. Maine Cent. R. Co., 30 A. 116; Meyer v. Kenyon-Rosing Machine Co., 104 N.W. 132; Kelly v. Tyra, 114 N.W. 750; Santa Fe P. & R. Ry. v. Ford, 85 P. 1072; Moffitt v. Grand Rapids Ry. Co., 200 N.W. 274; Ohm v. Miller, 31 Ohio App. 446, 167 N.E. 482; Lessard v. Kneeland, 154 N.E. 94.

The jury should have been allowed to decide the question of gross and reckless negligence.

Ellis v. Pelegrini, Inc., 140 So. 273; Trico Coffee Co. v. Clemens, 168 Miss. 748, 151 So. 175; Sections 511 and 512, Code of 1930; Marks v. Dorkin, 105 Conn. 521, 136 A. 83, 61 A. L. R. 1224; Y. & M. V. R. Co. v. Dees, 121 Miss. 439, 83 So. 613.

The evidence was sufficient to sustain the verdict of the jury on the first trial.

39 C. J. 1090; 18 R. C. L. 726 and 730; Tucker v. Missouri & K. Tel. Co., 112 S.W. 6; Burns v. R. L. McDonald Mfg. Co., 252 S.W. 894.

If appellant was a fellow servant he did not assume the risks incident to tim incompetency of the truck driver to the extent of barring recovery.

Hines v. Cole, 123 Miss. 254, 85 So. 199; 39 C. J., sec. 613, pages 526 and 527; Section 513, Code of 1930; 18 R. C. L. 720 and 721; Cecil Lbr. Co. v. McLeod, 122 Miss. 769, 85 So. 78; Warner v. Oriel Glass Co., 6 A. L. R. 448; Kirby Lbr. Co. v. Bratcher, 191 S.W. 700-704.

On the second trial of the case the jury should have been permitted to decide the question as to the defendant company's liability as charged in each county of the declaration.

Fore v. I. C. R. Co., 160 So. 903.

The verdict of the jury was not excessive in consideration of the damages sustained.

I. C. R. Co. v. Johnston, 205 Ala. 1, 87 So. 866, 254 U.S. 654, 255 U.S. 564; Galveston, H. & S. A. R.. Co, v. Butts, 209 S.W. 419.

The evidence as to notice to the company of the recklessness and incompetency of Stegall as a truck driver was enough to charge the company with liability for injury resulting from such recklessness and incompetency.

Roy Stegall was a foreman and vice principal having the right to control the plaintiff Buckley.

Gwin v. Carter, 158 Miss. 196, 129 So. 597.

This cross-assignment of errors was filed for the first time in the brief of appellee, and we have therefore had no time or occasion to file any motion to strike these cross-assignments.

Appellant by his notice and bond did not indicate Roy Stegall as an appellee or a party to this appeal.

The appellant has not appealed from the judgment against Stegall.

Stegall has given no notice of appeal and has filed no bond assuming the burdens of any direct appeal from the judgment obtained against him.

It is only when the appellee is a party to the appeal in the Supreme Court and is before the Supreme Court as a party that he is permitted to file cross-assignments of errors.

Watkins & Eager, of Jackson, for appellee.

Appellant and Stegall were fellow servants.

Beale & Strayhorn v. Clayborn, 152 Miss. 681, 120 So. 812; Life & Casualty Ins. Co. v. Curtis, 165 So. 435; 39 C. J. 554; Baynes v. Billings, 30 R. I. 53, 73 A. 625; Heasmer v. Pickford's Ltd., 36 T. L. R. 818; Flower v. Pa. R. R. Co., 69 Pa. St. 210, 8 Am. Rep. 254; Osborne v. Knox & Lincoln Railroad, 68 Me. 49, 28 Am. Rep. 16; Brooks v. Central Sainte Jeanne, 228 U.S. 688, 33 S.Ct. 700, 57 L.Ed. 1025; Y. & M. V. R. Co. v. Stansberry, 97 Miss. 831, 53 So. 389; Greer v. Pierce, 167 Miss. 56, 147 So. 303; Great Southern Lbr. Co. v. Hamilton, 137 Miss. 55, 101 So. 787; Hamilton Bros. v. Weeks, 155 Miss. 762, 124 So. 798; Tallahala Lbr. Co. v. Holliman, 125 Miss. 308, 87 So. 661; Petroleum Iron Works v. Bailey, 124 Miss. 11, 86 So. 644; Lagrone v. Mobile, etc., R. Co., 67 Miss. 592, 7 So. 432; Morris v. Brookhaven, etc., R. Co., 88 Miss. 539, 41 So. 267; N. O. J. & G. N. R. Co. v. Hughes, 49 Miss. 258; Givens v. Southern Ry. Co., 94 Miss. 830, 49 So. 180; Hercules Powder Co. v. Hammack, 145 Miss. 304, 110 So. 676; 39 C. J. 579.

The evidence was insufficient to show that Stegall was an incompetent driver as such term is defined by the law.

Hamilton Bros. v. Weeks, 155 Miss. 762, 124 So. 798; Vanner v. Dalton, 172 Miss. 183, 159 So. 558; 18 R. C. L., 727, 728 and 729; Jones v. Harris, 210 P. 23.

Even assuming for the sake of the argument, which otherwise is expressly denied, that Stegall was an incompetent driver, the proof is insufficient to show that appellant's injury was the proximate result of any act of incompetence.

39 C. J. 535; N. O. J. & G. N. R. Co. v. Hughes, 49 Miss. 258; Cecil Lbr. Co. v. McLeod, 122 Miss. 767, 85 So. 78; Anderson v. Daniel, 136 Miss. 456, 101 So. 498; Hermann v. Maley, 159 Miss. 538, 132 So. 542; Hines v. Cole, 123 Miss. 254, 85 So. 199; Barbour v. Smeallis, 117 N.E. 611; 39 C. J. 535; 18 R. C. L. 727, 728, 729; First National Bank of Montgomery v. Chandler, 39 So. 822; Allen v. Quercus Lbr. Co., 182 Mo.App. 280, 168 S.W. 794; Brunner v. Blaisdell, 170 Pa. 25, 32 A. 607.

Appellant selected his own place to push and chose to push from behind, knowing the exact condition and situation of the work as it changed and progressed, and in violation of the order of Stegall not to push from behind, and under such circumstances neither Stegall nor his employer are liable.

Seifferman v. Leach, 161 Miss. 858, 138 So. 563; Barron Motor Co. v. Bass, 167 Miss. 786, 150 So. 202; Newell Cont. Co. v. Flynt, 172 Miss. 719, 161 So. 298; 39 C. J. 505; Yellow Pine Co. v. Clark, 163 Miss. 661, 142 So. 443; Cybur Lbr. Co. v. Erkhart, 118 Miss. 401, 79 So. 235.

Appellant knew more about Stegall's characteristics as a truck driver than did the United Gas Public Service Company and continued to ride in said truck, and without the slightest protest either to Stegall or the United Gas Public Service Company or any of its officers, or anybody else, and, in such an event, the master is not liable.

N. O. J. & G. N. R. R. Co. v. Hughes, 49 Miss. 258; First National Bank of Montgomery v. Chandler, 39 So. 822; Cecil Lbr. Co. v. McLeod, 122 Miss. 767; 18 R. C. L., 724, pars. 201 and 203; Consolidated Coal & Mining Co. v. Clay's Admr., 38 N. E, 610; Brown v. Levy, 108 Ky. 163, 53 S.W. 1079; Gray v. Red Leak Falls Lbr. Co., 85 Minn. 24, 88 N.W. 24; Enright v. Oliver, 69 N. J. L. 357, 55 A. 277, 101 Am. St. Rep. 710; Lake Shore & M. S. Ry. v. Stupak, 8 N.E. 630; 39 C. J. 499 and 503; Hines v. Cole, 123 Miss. 254.

Respecting appellee's cross-appeal, the learned trial court erred further on the second trial in peremptorily instructing the jury to find for the plaintiff and to award the plaintiff full compensation for his alleged damages, and also doctors' bills, and "for the injuries sustained by him as alleged in the declaration."

Southern Railway Co. v. Ganong, 99 Miss. 540, 55 So. 355; Y. & M. V. R. R. Co. v. Cornelius, 131 Miss. 37, 95 So. 90; Lanham v. Wright, 164 Miss. 1, 142 So. 5; Gurley v. Tucker, 170 Miss. 565, 155 So. 189; Gill v. Dantzler Lbr. Co., 153 Miss. 559, 121 So. 153; Chapman v. Powers, 150 Miss. 687, 116 So. 609; Greyhound Lines, Inc. v. Silver, 155 Miss. 765, 125 So. 340; St. Louis & S. F. Ry. v. Trice, 202 Ala. 352, 80 So. 434; Mobile Light & R. Co. v. Fuller, 180 Ala. 301, 92 So. 89; Atlantic Coast Line R. Co. v. Watson, 215 Ala. 254, 110 So. 316.

The lower court erred as to the appellee Stegall, in the first trial, in submitting the case to the jury under both counts of the declaration as to Stegall, after having directed a verdict for his co-defendant under the first count, and permitting the case to go to the jury as to Stegall on both counts but as to Stegall and his co-defendants only on the second count; and therefore Stegall's motion for a new trial should have been sustained both as to damages and liability.

Bank of Hickory Flat v. Burt & Croley, 219 Ala. 100, 121 So. 93; Gilliland v. Harris, 25 Ala.App. 549, 150 So. 184; McMahan v. Western Union Tel. Co., 209 Ala. 319, 96 So. 265; Board of Supervisors of DeSoto County v. Jones, 103 Miss. 602, 60 So. 655; Ozen v. Sperier, 117 So. 118; McIntyre R. R.. Co. v. Bolton, 43 Ohio. St. 224, 1 N.E. 333; Eason v. S. & E. T. Ry., 65 Tex. 577; Welch v. Maine Central R. R. Co., 30 A. 116; Kelly v. Tyra, 114 N.W. 750; Santa Fe P. & P. R. R. Co. v. Ford, 85 P. 1072; Moffit v. Grand Rapids Ry., 200 N.W. 274; Ohm v. Miller, 31 Ohio App. 446, 167 N.E. 482; Phillips Pet. Co. v. Jenkins, 80 Adv. Op. 642, 56 S.Ct. 611, American Bar Association Journal XXII, page 332; Lessard v. Kneeland, 154 N.E. 94; Ellis v. Pellegrini, 140 So. 273; Trico Coffee Co. v. Clemens, 168 Miss. 748, 151 So. 175; Marks v. Darkin, 105 Conn. 521; Hines v. Cole, 123 Miss. 254; Cecil Lbr. Co. v. McLeod, 122 Miss. 767.

If appellant's learned counsel is of the opinion that Stegall cannot cross-appeal without the filing of a bond, we respectfully request them to read what this court has already announced as the law in the case of ...