Dr. Pepper Bottling Co. v. Gordy

• Citation: 164 So. 236,174 Miss. 392
• Decision Date: 18 November 1935
• Docket Number: 31913
• Court: United States State Supreme Court of Mississippi
• Parties: DR. PEPPER BOTTLING CO. v. GORDY

164 So. 236

174 Miss. 392

DR. PEPPER BOTTLING CO. v. GORDY

No. 31913

Supreme Court of Mississippi

November 18, 1935

Division A

Suggestion Of Error Overruled January 6, 1936.

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

Action by W. J. Gordy against the Dr. Pepper Bottling Company. From an adverse judgment, the defendant appeals. Judgment reversed and rendered.

Reversed, and judgment here for appellant.

Butler & Snow, of Jackson, for appellant.

Plaintiff was in the employ of the defendant. He was a more experienced salesman than was Dorman. Having in mind undertaking to increase the business on Dorman's route, plaintiff was sent out on Dorman's route with him for the purpose of trying to increase the sales on the route, contact new customers, and, generally, help the business on the route. The accident happened on the first day the plaintiff had been on the route with Dorman. They had worked the territory together and were coming back to Jackson, Dorman driving and the plaintiff seated with him in the truck. Undoubtedly, they were fellow-servants.

Hercules Powder Co. v. Hammack, 145 Miss. 304, 110 So. 676; Great Southern Lbr. Co. v. Hamilton, 137 Miss. 55, 101 So. 787; Bealle & Strayhorn v. Clayborn, 152 Miss. 681, 120 So. 812; Greer v. Pierce, 167 Miss. 65, 147 So. 303; Continental Casualty Co. v. Pierce, 170 Miss. 67, 154 So. 279; Harper v. Public Service, 170 Miss. 39, 154 So. 266.

The proof fails to show that the brakes were, in fact, defective. The proof, even if the brakes were defective, fails to show the nature of the defect and that the same was such defect as might have been ascertained by the exercise of reasonable care. The proof fails to show that the master had knowledge, actual or constructive, of the defect, if any, in the brakes at the time of the injury. The proof fails to show that any defect in the brakes contributed to the accident and resulting injury.

It was necessary that the plaintiff prove all of these elements before he had made out his case.

Gulfport Creosoting Co. v. White, 157 So. 87, 171 Miss. 127; Columbus & Greenville R. R. Co. v. Coleman, 160 So. 277; G. M. & N. R. R. Co. v. Brown, 143 Miss. 890, 108 So. 503; Lampton v. Atkins, 129 Miss. 660, 92 So. 638; Miss. R. R. Co. v. Bennett, 111 Miss. 163, 71 So. 310; A. & V. Ry. Co. v. White, 106 Miss. 141, 63 So. 345; Hope v. Railroad Co., 98 Miss. 822, 54 So. 369; Newell v. Flynt, 161 So. 298; N. O. & N. E. R. R. Co. v. Holsomback, 168 Miss. 493, 151 So. 720; Berryhill v. Nichols, 158 So. 470, 171 Miss. 769; Masonite Corp. v. Hill, 154 So. 295; Jabron v. State, 159 So. 406; Owen v. R. R. Co., 77 Miss. 142, 24 So. 899; I. C. R. R. Co. v. Cathey, 70 Miss. 332, 12 So. 253; Hattiesburg Chero-Cola Co. v. Price, 141 Miss. 892, 106 So. 771; Lumber Co. v. Garner, 117 Miss. 825, 78 So. 776.

It is the universal rule that a master is not charged with notice by reason of notice to a fellow-servant, or to a servant or agent who has no control or supervision over the place of work, machinery, or appliances, the defective condition of which is the cause of the injury complained of.

39 C. J. 438; Hughes v. Russell, 104 A.D. 144, 93 N.Y.S. 307; Gulfport Creosoting Co. v. White, 157 So. 87; C. & G. R. R. Co. v. Coleman, 160 So. 277; Hope v. Railroad Company, 98 Miss. 822, 54 So. 369; A. & V. R. R Co. v. White, 106 Miss. 141, 63 So. 345.

Where the accident might have been due to one of several causes, for only one of which the defendant was responsible, the jury cannot be permitted to guess between those causes and find that the negligence or fault of the defendant was the real cause where there is no satisfactory foundation in the evidence for that conclusion.

Glass v. Virgin Pine Lbr. Co., 50 F.2d 29; T. & P. R. R. Co. v. Patton, 179 U.S. 658, 45 L.Ed. 361.

Broom & Shipman, of Jackson, and Swalm & Swalm, of Brookhaven, for appellee.

This truck was equipped with two independent brakes, all right, but the trouble was one of them was not effective. One brake held too effectively, the other not at all. In other words, not properly adjusted, and therefore not effective within the meaning of the statute.

Section 5588, Code of 1930.

Where defendant, after denial of a motion to exclude all the evidence offered by plaintiff when he rested his case in chief, introduced evidence, the correctness of the judgment rendered must be determined by the whole evidence on appeal.

Hauer v. Davidson, 113 Miss. 696, 74 So. 621; A. & V. R. R. Co. v. Kelly, 126. Miss. 276, 88 So. 707.

Full faith and credit has been accorded the motor vehicle prima facie statute, section 5588, Code of 1930, by this court.

Flynt v. Fondren, 122 Miss. 248, 84 So. 188; Lucedale Auto Co. v. Daughdrill, 154 Miss. 707, 123 So. 871.

It becomes an affirmative defensive matter incumbent upon the defendant to show that he exercised due and reasonable care to provide a safe vehicle and that is likewise true with reference to their contention that the defendant had no notice of the defect, either actual or constructive.

Argued orally by C. B. Snow, for appellant, and by Stewart Broom, for appellee.

OPINION

McGowen, J.

Appellee, Gordy, sued the appellant, the Dr. Pepper Bottling Company, for damages for personal injuries sustained by him in a motortruck wreck. A substantial verdict was rendered by the jury, judgment thereon Was entered by the court, motion for a new trial was overruled, and appeal is prosecuted here therefrom.

The declaration was in two counts, one sought a recovery from the appellant on the ground of the negligence of its servant, the driver, in the operation of the motortruck. This count was disposed of in the lower court by a peremptory instruction in favor of appellant after all the evidence was in, and no appeal is prosecuted here from that action of the court. The second count charged negligence of the appellant in that the motortruck was then and there equipped with defective, unsound, and unfit brakes, which fact was then and there well known to the appellant, or by the exercise of reasonable care and inquiry might have been so known to it, but was unknown to the appellee, and on this count the cause was submitted to the jury.

The facts necessary to state are about as follows: At the time of the alleged injury, the Dr. Pepper Bottling Company was engaged in the business of manufacturing, bottling, and selling a beverage, and in transporting and delivering its product to retail dealers in various places in this state. These deliveries were usually made by the use of motortrucks. Gordy testified that at about five o'clock in the afternoon of February 21, 1934, he was injured in a motortruck wreck about twenty miles south of Jackson on United States highway No. 49, as he and the driver of the truck were returning to Jackson. Appellee had been in the employ of the appellant since 1932, and at first had been employed as a "motortruck salesman," transporting the beverage in the motortruck, selling and delivering it. At the time of the injury Gordy had ceased to be a "motortruck salesman;" he then traveled in his car and took orders for the company but did not usually make deliveries. At this time Dorman was the driver of the truck and was the truck salesman. The manager of the company, being dissatisfied with results obtained by Dorman in sales of the product, instructed Gordy to accompany Dorman on his route from Jackson to Magee and investigate and stimulate sales. In pursuance of these instructions, Gordy, in company with Dorman, left Jackson on that morning in the motortruck; after they left town Dorman delivered the products of the company to his customers on the route, and Gordy interviewed customers and prospective purchasers.

Gordy testified that he noticed that when Dorman put on the brakes the truck swerved, and that this occurred while they were on their way down to Magee in the morning; that something was wrong, and that he remarked about it to Dorman. How many times the truck swerved is not stated. He further testified that as they were returning to Jackson they met a car coming in the opposite direction from that in which they were going, and in passing Dorman checked the truck, and that was the last thing he remembered until he was getting up. Gordy stated: "I observed him apply the brakes and I could feel it swerving. . . . That is all that I know that happened -- I do not -- did not remember anything else, until I was getting up out of the ditch." Appellee testified that the truck had changed ends as it turned over an embankment and had fallen on the left-hand side of the road, and that "the motor was headed back to Magee." At the time of the injury, Dorman was driving about thirty-five miles an hour and had reached a slight left-hand curve on a gravel road. A slow drizzling rain had been falling all day and the road was wet. Gordy was thrown from the truck, rendered unconscious for a brief time, and when he regained consciousness Dorman was running up and down the road crying, and the witness was permitted to testify that Dorman said then, "I knew that it was going to happen." Other declarations by Dorman were excluded by the court. Gordy secured a flash-light and examined the ground and said, when questioned as to signs on the highway, "you could see where the car turned and toppled over and turned over in the middle of the road and slid into the ditch, is the only way it could have been done. . . . I observed the place where the brakes were applied; just dug a hole as the car turned over, and we observed the brakes-- where they had skidded on one side.

"Q. Where one side of the brakes held and the other side did not? A. Yes sir, and we observed the torn up place in the road where it had...