Delta Cotton Oil Co. v. Elliott

Citation172 So. 737,179 Miss. 200
Decision Date24 May 1937
Docket Number32547
CourtUnited States State Supreme Court of Mississippi
PartiesDELTA COTTON OIL Co. v. ELLIOTT

(Division B.)

1 AUTOMOBILES.

In action for injuries sustained in automobile collision evidence that defendant's employee who was driving defendant's automobile stopped at freight depot for bill of lading for defendant and then started toward rooming house where automobile was usually kept, and collision occurred two blocks from rooming house, held for jury as to whether employee was serving himself or defendant.

2 AUTOMOBILES.

In action for injuries sustained in automobile collision at street intersection, whether plaintiff's negligence in violating ordinance with respect to making left turn at intersection and with respect to speed proximately contributed to injury held for jury.

3 TRIAL.

In action for injuries sustained in automobile collision instruction that driver of defendant's automobile was employee of defendant, and automobile he was driving was owned by defendant, and that it was duty of employee to get bills of lading for defendant, and that on night of collision he secured bill of lading for defendant but a few minutes before collision, held proper where such facts were undisputed.

ON SUGGESTION OF ERROR. (Division B. May 24, 1937.) [174 So. 550. No. 32547.]

1. AUTOMOBILES. In action arising out of automobile collision, whether automobile was owned and controlled by defendant corporation was for jury under evidence. 2. APPEAL AND ERROR. An appellant must show error on original submission of appeal, and reviewing court will rarely consider new contention on suggestion of error, despite rule of court giving court option to consider plain errors overlooked by appellant (Rules of Supreme Court, rule 6, par. 2). 3. APPEAL AND ERROR. Contention that trial court erred in charging jury that automobile belonged to defendant, whereas ownership of automobile was for jury, would not be considered when raised for first time on suggestion of error, in view of facts that case was originally submitted as if such contention were not in real issue and that appellant referred to "defendant's automobile" in requested charges.

Division B

February 15, 1937

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

Action by James M. Elliott against the Delta Cotton Oil Company. Judgment for plaintiff, and defendant appeals. Affirmed.

On suggestion of error, suggestion of error overruled.

Affirmed. Suggestion of error overruled.

Watkins & Eager, of Jackson, for appellant.

Appellant was entitled to a directed verdict because the evidence was insufficient to show the relationship of master and servant between the driver and appellant at the time of the accident.

Merchants Co. v. Tracy, 175 Miss. 49, 166 So. 340; Bourgeois v. Miss. School Supply Co., 170 Miss. 310, 155 So. 209; Woods v. Franklin, 151 Miss. 635, 118 So. 450; Murphy v. Willingham, 160 Miss. 94, 133 So. 213; Hobson v. McLeod, 165 Miss. 853, 147 So. 778; Smith v. Dauber, 155 Miss. 694, 125 So. 102; Atwood v. Garcia, 167 Miss. 144, 147 So. 813.

It is certainly clear in this state, we submit, that proof of ownership is not sufficient to impose liability upon the owner when the owner is not present or driving the motor vehicle.

Woods v. Clements, 113 Miss. 720, 74 So. 422; Winn v. Haliday, 109 Miss. 691, 69 So. 685; Dempsey v. Frazier, 119 Miss. 6, 80 So. 341; Isaacs v. Prince & Wilds, 133 Miss. 206, 97 So. 558; Sharples v. Watson, 157 Miss. 241, 127 So. 779; 2 R. C. L. 1201, par. 35.

The use of a motor vehicle by a chauffeur or driver in going to and from his home and place of employment in nowise imposes liability upon the master for an injury occasioned while it is being so used, either with or without the owner's permission.

42 C. J., 1108, par. 868; 1 Restatement of Law of Agency, page 513; Shell Petroleum Corp. v. Kennedy, 167 Miss. 305, 141 So. 335; Primos v. Gulfport Laundry & Cleaning Co., 157 Miss. 770, 128 So. 507; Culpepper v. Holmes, 170 Miss. 235, 154 So. 726; 3 C. J. S. Agency, 187, par. 255; Hannis v. Driver, 68 Penn. 548.

Appellant requested the court for an instruction telling the jury that if they found for appellee they could not award him full compensation, but must diminish the amount of the verdict in proportion to appellee's own negligence.

Appellant also requested the court to instruct the jury that appellee was himself guilty of negligence proximately contributing to his own injuries, and if the jury believed from the evidence that such negligence "was the sole proximate cause of the collision" then their verdict must be for the defendant.

Both of these requested instructions were refused by the lower court.

We most earnestly submit that, assuming for the sake of the argument only, the court was correct in submitting the case to the jury, nevertheless, fatal error was committed in refusing these requested instructions because the evidence shows conclusively, and as a matter of law, that appellee's own conduct was unquestionably negligent, and it is inescapable that such conduct proximately contributed to his own injuries.

Section 511, Code of 1930; McLaurin v. McLaurin Furniture Co., 166 Miss. 180, 146 So. 877; Pounders v. Day, 118 So. 299; McDonald v. Collins, 144 Miss. 825, 110 So. 663; Billingsby v. I. C. R. R. Co., 100 Miss. 624, 56 So. 796; Aycock v. Burnett, 157 Miss. 510, 128 So. 100; Terry v. Smylie, 161 Miss. 31, 133 So. 662; Rhodes v. Fullilove, 161 Miss. 41, 134 So. 841; Ripley v. Wilson, 140 Miss. 845, 105 So. 446; Van v. Tankersby, 164 Miss. 748, 145 So. 642; 42 C. J. 890, sec. 592; Daniel v. Livingston, 168 Miss. 311, 150 So. 662; Gough v. Harrington, 163 Miss. 393, 141 So. 280; Abel v. Gulf Refining Co., 143 So. 82.

The driver who intends to turn across the path of another vehicle must have sufficient time to cross in safety, or, otherwise, give the approaching car time to pass.

Dietrich & Wiltz v. H. T. Cottam & Co., 9 La. App. 740, 120 So. 262.

A driver intending to turn off right-of-way street on left necessitating crossing street, and interfering with two lines of through traffic, must use utmost care.

Payne v. Prestridge, 16 La. App. 479, 133 So. 512.

Where automobiles traveling in opposite directions reach intersection at approximately same time, driver intending to make left turn should let other car pass before turning.

Michels v. Oser, 19 La. App. 24, 139 So. 497; Lucas v. Andress, 17 La. App. 329, 136 So. 207; Thoman v. Deliberto, 17 La. App. 574, 136 So. 904; Driefus v. Levy, 140 So. 259; Thibodeaux v. Star Checker Cab Co., 143 So. 101; Scaife v. Clifton, 160 So. 142; Reid v. McDevitt, 163 Miss. 226, 140 So. 722.

In an instruction the jury was told peremptorily that Trammell was an employee of appellant; that the automobile "was owned and controlled by the defendant, Cotton Oil Company;" that one of Trammell's duties was to take bills of lading to the freight office, and "at times (Trammell) used defendant's automobile in question in performing that service for the defendant;" and that on the night of the collision "Trammell did secure a bill of lading for defendant, Cotton Oil Company, only a few minutes before said collision."

Based on this peremptory charge of facts the court then told the jury that if they believed from the evidence "that at the time of the collision Trammell was returning from the depot where he secured the bill of lading to his room, if you further believe from a preponderance of the testimony that the car was kept at Trammell's residence to be used in the company's business, then Trammell was the agent and servant of the defendant, Cotton Oil Company, at the time of the collision," and appellant would be liable "for any negligence of Trammell."

We submit that the greatest deference, but with the utmost sincerity, that the mere reading of this instruction is sufficient to stamp it as highly improper, wholly unjustified by the evidence, misleading and prejudicial.

Y. & M. V. R. R. Co. v. Hawkins, 159 Miss. 775, 132 So. 742.

Watkins & Eager, of Jackson, for appellant on Suggestion of Error.

With the evidence absolutely silent as to whose car it was that was involved in the collision, the court peremptorily told the jury that the car was owned by the appellant Oil Company; and not only owned but controlled by said Oil Company. Unless the proof was sufficient to show ownership of the automobile in the Oil Company, then under no possible logical theory can it be said that any inference could be drawn that the car was at the time controlled by the appellant Oil Company.

It is our humble opinion that in the state of the record, appellant is entitled to a reversal and dismissal; if not, certainly to a reversal and new trial under appropriate instructions, not an instruction peremptorily telling the jury that the automobile was both owned and controlled by the appellant Oil Company when there is not one word of evidence to justify such conclusion.

In Merchants Co. v. Tracy, 175 Miss. 49, this court said that while the majority rule in this country is that proof of ownership of an automobile is prima facie evidence that it was being driven by the agent of the owner and in the course and furtherance of the owner's business, further said, "this court does not follow that rule. We have held that the plaintiff must show the relation of master and servant existing at the time of injury directly and not by presumption."

Woods v. Clements, 113 Miss. 720; Woods v. Franklin, 151 Miss. 635; Bourgeois v. Miss. School Supply, 170 Miss. 310.

This court has never gone as far as to say that a prima facie case can be made out without at least showing the ownership of the car in the defendant.

In the case at bar the...

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