Great Southern Lumber Co. v. Hamilton

Decision Date10 November 1924
Docket Number24202
Citation101 So. 787,137 Miss. 55
CourtMississippi Supreme Court
PartiesGREAT SOUTHERN LUMBER CO. et al. v. HAMILTON. [*]

Division A

APPEAL from circuit court of Copiah county, HON. E. J. SIMMONS Judge.

Action by Ben Hamilton against the Great Southern Lumber Company and others. Judgment for plaintiff against named defendant, and named defendant appeals. Reversed and remanded.

Judgment reversed, and case remanded. Suggestion of error overruled.

J. S. Sexton, for appellant.

I have stated this case perhaps more at length than was necessary but I was anxious for the court to get a perfectly clear conception of the relations existing between the parties at the time the accident complained of occurred, because that is necessary to a proper understanding of the case. There can be no pretense based upon this record that Hamilton paid anything for the right to ride upon defendant's truck and I insist that he was a mere licensee and as there is nothing in the record to indicate any wilful or wanton injury to him there can be no liability in the case, and the peremptory instruction for the defendant should have been given. I know of no case in our own reports which exactly parallels the instant case. In other words, I know of no case where an inquiry occurred to one who was simply allowed to ride in another's automobile and while so riding was injured without any wilful or wanton negligence on the part of the driver which has been decided by our court. Of course, I know that our court has held time and again that for an injury to a mere licensee without wilful or wanton negligence, there can be no recovery, and it is not difficult to understand what care was due to Hamilton, plaintiff in the court below when we understand the true relation existing between him and the appellant at the time of the injury complained of.

There have been a number of automobile accident cases decided in other courts and when we remember that there never has been anything in the history of the state or nation to compare with the way in which automobile traffic has increased within the last few years, and when we further remember that we are just now entering upon a State Highway project contemplating a system of nearly five thousand miles of public highways in the state, it will be seen that the questions involved in this case are of very great importance, and the precedent to be established by it is likely to be very far reaching in its consequences. Crider v. Yolande Coal & Coke Co., 80 So. 285; West v. Poor, 196 Mass. 183, 124 Am. St. Rep. 541; Avery v. Thompson, 117 Me. 120; Ann. Cas. 1918E, 1125; Lutvin v. Dopkus (1920), 24 N. J. L. 64, 108 A. 862.

There is a class of cases dealing with the degree of care required of a person who invited another to ride in his automobile. Massaletti v. Fitzroy, 228 Mass. 487, 118 N.E. 168. The opinion in this case quotes Wharton on Negligence as follows: "A person who undertakes to do service for another is liable to such other for want of due care and attention in the performance of the service even though there is no consideration for such undertaking. The confidence accepted is an adequate consideration to support the duty." Beard v. Klusmeier, 158 Ken. 153. 164 S.W. 319. While the authorities generally declare that the owner of the vehicle must exercise ordinary care to prevent injury to a guest riding with him, it has been held in a case where a person was riding in another's vehicle on his way to perform a service for the latter, that evidence of gross negligence was necessary in order to render the owner of the vehicle liable for damages for an injury to the person so riding. Moffatt v. Bateman, L. R. 3 P. C. (Eng.) 115, 22 L. T. N. S. 140, 6 Mo. P. C. C. (N. S.) 369. Compare Pigeon v. Lane, 80 Conn. 237, 11 Ann. Cas. 317, 67 A. 866; Duhme v. Hamburg-American Packet Co., 184 N.W. 404, 77 N.E. 386, 112 Am. St. Rep. 615; Huddy on Automobiles, p. 888 note, 890, 891; Massaletti v. Fitzroy, supra; Flynn v. Lewis (Mass.), 121 N.E. 493; Berry on Automobiles (3 Ed.), sec. 551.

After the verdict was rendered in this cause there was a motion for a new trial, which contained among other causes alleged to support it, an allegation that the verdict was influenced largely by one of the jurors, who immediately upon the retirement of the jury proceeded to inform the same that "defendant or its counsel had offered five thousand dollars in settlement of the injury soon after it occurred." Another cause alleged was that "the verdict rendered is quotient or chance verdict arrived at by dividing the sum total of an amount suggested by each juror, by twelve, this method having been agreed before a verdict could be arrived at at all." Parham v. Harney, 6 S. & M. 55.

The juror Deaton was never produced to explain when, where and how he ever learned that the appellant or its counsel had made the five thousand dollar offer, and no other juror was ever produced to deny the statement made by Wade, the Bailiff, and C. M. Grafton, the juror, so that these bald undisputed facts now confront the court. One juror falsely stated to his fellow-jurors a most damaging circumstance, calculated to increase out of all proportion any verdict which could justly have been rendered in the case, and certainly calculated to make it certain that a verdict would be rendered for plaintiff in the court below. That the jury instead of deliberating upon the case and returning a verdict which their individual consciences could approve, took a gambler's chance with Deaton and those who were influenced by his false and malicious statements, and in this way only can this verdict be understood. That it ought not to be allowed to stand in a court of justice seems to be an inevitable conclusion.

M. S. McNeil, for appellee.

The record affirmatively shows and it is admitted in counsel's brief: First: That Hamilton was an employee of the Great Southern Lumber Co., appellant. Second: That the lumber camp was some distance from the sawmill; that a truck and driver had been provided for the purpose of transporting the laborers to and from this lumber camp to the sawmill by the appellant, the Great Southern Lumber Co. Third: That while these facts are true, there was no actual money paid by appellee for his transportation, nor was there any difference in the wages paid the employees who rode on the truck and those who furnished their own means in going to and from the mill. Fourth: That Hamilton was riding to his place of work on the truck so furnished by the appellant at the time he received his injuries. With these admitted facts before us, it occurs to us that there is no room for dispute on the question of the legal status of the appellee at the time he received his injuries. The relation of master and servant began when appellee took a seat on the truck to be transported to his work. 26 Cyc. 1087; Tallahalla Lumber Co. v. Holliman, 125 Miss. 308; Eliza Magee v. Miss. Central R. R. Co., 95 Miss. 678; Wilson v. Banner Lumber Co., 32 So. 460; Bowles v. Indiana Railway Co., 87 Am. St. Rep. 279; Simpson v. Carter Coal Co., 91 S.E. 1085; Whalen v. Union Pacific Coal Co., 168 P. 99; Salabrin v. Ann Arbor R. R. Co., 160 N.W. 552; Mitchell v. Southern Ry. Co., 97 S.E. 628; Atlantic Coast Line Ry Co. v. Williams, 284 F. 262; Matthison v. Payne, 118 A. 771; Arkansas Land & Lumber Co. v. Cook, 247 S.W. 1071; Producers' & Refiners' Corp. v. Castile, 214 P. 121; Stone-Webster Engineering Corp. v. Collins, 199 F. 581; Ala. Great Southern R. R. Co. v. Brock, 49 So. 453; Self v. Adel Lbr. Co., 64 S.E. 112, 5 Ga.App. 846.

If it was the purpose of counsel to advance the contention under the second sub-division of his brief "invited Guest" that the appellee was an invited guest on the occasion in question, then we are unable to see how he can escape this conclusion that this case was submitted to the jury upon the proper test of liability. The instructions in this case were drawn upon the idea that the appellant owed the appellee the duty of reasonable or ordinary care. 29 Cyc. 453.

The evidence does not disclose such irregularities in the jury-room as to vitiate the verdict. Buckeye Cotton Oil Co. v. Owen, 122 Miss. 15, 16.

J. S. Sexton, in reply for appellant.

Evans and Hamilton were follow servants and this reminds me of a fact that I had momentarily overlooked and that is that the legislature in the broad sweep abolishing the fellow-servant rule which is found in section 6684, Hemingway's Code limited the operation of the act to such agencies therein mentioned as those "running on tracks." It seems to me therefore that the full answer to the cause of action in this case and the reason why the peremptory instruction should have been given, was that the doctrine of fellow servant is not abolished as to the operation of automobiles along the highway, but only to the operation of the agencies therein named only when "running upon tracks." This leaves the common-law rule as to fellow servants still applicable to the case at bar. The evidence shows that the car was in good condition; that the chauffeur was competent, and was a fellow servant of Hamilton. It further shows that the injury occurred upon the highway and by reason of a projecting log over the edge of the highway over which the road commissioners have exclusive jurisdiction, and over which the Great Southern Lumber Company had no jurisdiction, nor was it under any duty to remove. Under the well-established rule "where the master furnishes a safe place for the servant to work, proper appliances with which he is to work, competent servants with whom he is to work, and proper regulations for the conduct of his business to the end of promoting the safety of his servants, then he is not liable to...

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