Crosby Lumber & Manufacturing Co. v. Durham

• Decision Date: 28 February 1938
• Docket Number: 33085
• Citation: 179 So. 285,181 Miss. 559
• Parties: CROSBY LUMBER & MANUFACTURING CO. et al. v. DURHAM
• Court: Mississippi Supreme Court

179 So. 285

181 Miss. 559

CROSBY LUMBER & MANUFACTURING CO. et al. v. DURHAM

No. 33085

Supreme Court of Mississippi

February 28, 1938

Division A

1. MASTER AND SERVANT.

A "servant" is a person employed by a master to perform services in master's affairs, whose physical conduct in performance of the service is controlled or subject to control by master.

2. MASTER AND SERVANT.

As distinguished from a "servant," with respect to his employer's liability for his negligence, an "independent contractor" is a person who contracts with another to do something for him, but is not controlled by the other nor subject to. right to control with respect to his physical conduct in performance of the undertaking.

3 AUTOMOBILES.

In determining whether trucker was a servant of lumber company employing him, so as to render lumber company liable for death of trucker's employee caused by trucker's negligence, provisions of the contract are conclusive, in absence of evidence of direct physical control by lumber company.

4 AUTOMOBILES.

Where contract between trucker and lumber company provided that trucker would haul logs which lumber company should cause to be cut and felled within six months, but expressly provided that lumber company should have no control over methods of hauling, trucker was an "independent contractor," and hence lumber company was not liable for death of trucker's employee caused by trucker's negligence.

5. MASTER AND SERVANT.

Whether truck owner was liable for death of truck driver when truck skidded because of flat tire held properly submitted to jury.

6. MASTER AND SERVANT.

In action against truck owner for death of truck driver caused by flat tire, refusal of instruction that owner was not liable if driver was fully aware of defect in tire and of danger therefrom was not error, under statute abolishing doctrine of assumption of risk (Code 1930, section 513).

7. MASTER AND SERVANT. Negligence.

In action against truck owner for death of truck driver caused by flat tire on truck, instruction that driver's contributory negligence in driving truck after one tire had been repaired after blow-out would not bar recovery was not erroneous, though it did not consider owner's knowledge of defect, or danger so imminent that no ordinarily prudent person would encounter it even under orders, and though it would warrant jury in believing that contributory negligence would reduce the award (Code 1930, section 511).

8 NEGLIGENCE.

Contributory negligence will not bar recovery for injuries or death, under statute, irrespective of its degree (Code 1930, section 511).

9. TRIAL.

In action for death occurring in logging operations, improper statement in counsel's argument to jury that a person present in courtroom was a cripple as result of logging operations did not require entry of mistrial, where court sustained objection thereto and directed jury to disregard the statement.

HON. R. E. BENNETT, Judge.

Appeal from the Circuit Court of Wilkinson County, HON. R. E. BENNETT, Judge.

Suit for wrongful death by Mrs. Kate Durham, administratrix of D. P. Durham, against the Crosby Lumber & Manufacturing Company, and C. C. Stockstill. From a judgment on a verdict for plaintiff, defendants appeal.

Judgment against the Crosby Lumber & Manufacturing Company reversed, and judgment against C. C. Stockstill affirmed.

On suggestion of error, suggestion of error overruled, March 28, 1938 (179 So. 854).

Judgment reversed as to Crosby Lumber & Manufacturing Company, and case dismissed as to it, affirmed as to Stockstill. Sugestions of error overruled.

Bramlette & Bramlette, of Woodville, for appellant.

We respectfully submit that C. C. Stockstill was an independent contractor and as much an independent contractor as the Illinois Central System who also hauled logs for Crosby Lumber and Manufacturing Company.

The relation of master and servant does not exist, unless the alleged master has some sort of substantial control over the means and methods of carrying out the contract.

McDonald v. Hall-Neely Lbr. Co., 165 Miss. 143; New Orleans, B. R. V. & M. R. R. Co. v. Norwood, 62 Miss. 565, 52 Am. Rep. 191.

There is no intimation here that Crosby Lumber and Manufacturing Company had the right to select D. P. Durham as a servant or even knew of his existence in working for the independent contractor, C. C. Stockstill; there is no intimation that Crosby Lumber and Manufacturing Company had the right to discharge D. P. Durham or the right to control D. P. Durham.

The burden was on appellee to prove that the alleged relationship of master and servant existed, which burden appellee wholly failed to meet.

Hutchinson-Moore Lbr. Co. v. Pittman, 154 Miss. 1; Louis Werner Sawmill Co. v. Northcutt, 161 Miss. 441; Bear Creek Mill Co. v. Fountain, 130 Miss. 436; Cook v. Wright, 177 Miss. 644; Cox v. Dempsey, 177 Miss. 678; Regan v. Foxworth Veneer Co., 178 Miss. 654; Kisner v. Jackson, 159 Miss. 424; Gulf Refining Co. v. Nations, 167 Miss. 315; Texas Co. v. Jackson, 174 Miss. 737.

The closing argument of counsel for appellee is not authorized by any law of Mississippi; if it is authorized by any law of Mississippi, or jurisprudence, such law or authority is violative of Article XIV to the Constitution of the United States, known as the Fourteenth Amendment, in that it deprives appellant, Crosby Lumber and Manufacturing Company, of its property without due process of law; in addition, such argument is in violation of Section 14 of the Constitution of the State of Mississippi.

In the closing argument to the jury appellee's counsel, as shown by the special bill of exceptions, said: "As a result of this logging operation, Elwyn or Boo Carter is crippled today."

Whereupon, counsel for Crosby Lumber and Manufacturing Company objected to such statement in the closing argument and called attention of the court to the fact that Elwyn or Boo Carter was sitting in the court room, directly across the aisle from the jury during said argument and had been sitting there with his crutches during the course of the trial; whereupon, counsel for Crosby Lumber and Manufacturing Company moved the court to direct the jury to disregard the remarks of appellee's counsel in regard to Elwyn or Boo Carter with reference to his injury.

This motion was sustained by the trial court who directed the jury to disregard said remarks, but the mischief being ineradicable, counsel for Crosby Lumber and Manufacturing Company moved that a mistrial be entered in the case, which the trial court overruled.

In Brush v. Laurendine, 168 Miss. 7, this Honorable Court, at page 12, said in regard to an improper statement in a closing argument, that the trial court's instructing the jury to disregard the remarks may in some cases suffice but ". . . if the mischief be ineradicable, the objector must then and there move for a mistrial."

Berger v. U.S. 295 U.S. 78, 79 L.Ed. 1314; "The Court and Due Process of Law," Mississippi Law Journal, December, 1937.

The demurrer of Crosby Lumber and Manufacturing Company to the declaration should have been sustained, the seventh ground of which was that the declaration fails to allege that D. P. Durham, alleged to have been an employee, was acting within the scope of his employment, which was fatal.

Petroleum Iron Works v. Bailey, 124 Miss. 11.

The declaration did not allege that Crosby Lumber and Manufacturing Company had knowledge, actual or constructive, of the defective truck tire.

Hope v. Railroad Co., 98 Miss. 822; Lampton v. Atkins, 129 Miss. 660; Railroad Co. v. Bennett, 111 Miss. 163; Austin v. M. & O. R. Co., 134 Miss. 226; Crossett Lbr. Co. v. Land, 121 Miss. 834; Y. & M. V. R. Co. v. Hullum, 119 Miss. 229.

In Brown v. Coley, 168 Miss. 778, this Honorable Court laid down the principal of law that when obvious danger to an alleged servant is so imminent that no person of ordinary prudence should encounter it, even under orders, there is no liability.

If it had been true as contended by appellee that Stockstill was not an independent contractor but that both Stockstill and Durham were employees of Crosby Lumber and Manufacturing Company, which we deny, there is not a scintilla of evidence that Stockstill and Durham would have been more than fellow servants, there is no evidence that Stockstill was a foreman or a superior of Durham in any way. With the existence of this undeniable situation, then had it been true, which we deny, that beth Durham and Stockstill were employees of Crosby Lumber and Manufacturing Company, there is no evidence to show any authority on the part of Stockstill that would bind Crosby Lumber and Manufacturing Company by any report made by Durham to Stockstill; in other words, there was no effort to show that Stockstill had any authority to bind Crosby Lumber and Manufacturing Company by telling Durham to proceed with the use of his truck or to use the tire that blew out. Telling Stockstill would be no more than telling any other fellow worker. Of course, the burden was on appellee throughout to show the proper relationship of employer and employee which did not exist and it was impossible for appellee to prove same.

Buckley v. United Gas Public Service Company, 176 Miss. 282; Hercules Powder Co. v. Hammack, 148 Miss. 304; Petroleum Iron Works v. Bailey, 124 Miss. 11; Harper v. Public Service Corporation, 170 Miss. 39; Buckeye v. McMorris, 172 Miss. 99.

Clay B. Tucker, of Woodville, for appellee.

We submit that the contract here, in issue is plain and unambiguous, and that evidence, had it been offered by plaintiff to the effect that Crosby Lumber and Manufacturing Company did exercise, or attempt to exercise, some supervision over Stockstill or his assistants in the...