Gulf Coast Motor Express Co., Inc. v. Diggs
| Decision Date | 13 January 1936 |
| Docket Number | 31971 |
| Citation | 165 So. 292,174 Miss. 650 |
| Court | Mississippi Supreme Court |
| Parties | GULF COAST MOTOR EXPRESS CO., INC., et al. v. DIGGS |
1 APPEARANCE.
Foreign corporation's entry of motion to continue case or set it for date during that term was tantamount to general appearance, and corporation was in court, at least after that, for trial either at that term or some subsequent term (Code 1930, section 2999).
2 AUTOMOBILES.
Truck driver whose alleged negligence caused collision, who owned truck and trailer, who was under contract with express company to deliver shipments to consignees, and who received as compensation percentage of proceeds, and who was under substantial control of express company over means and methods used in carrying freight, was a "servant" and not "independent contractor."
3. MASTER AND SERVANT.
"Independent contractor" is one rendering services in course of his occupation representing will of his employer as to results alone, and not as to means of accomplishing those results.
4 DAMAGES.
Five thousand dollars as reduced from eight thousand dollars verdict to man whose collarbone was broken and who sustained five other wounds, necessitating taking of nineteen stitches, and who was totally incapacitated for any work for six months, held not excessive.
5. APPEAL AND ERROR.
Judgment of trial court, which on motion for new trial for excessiveness of verdict required plaintiff to reduce verdict or submit to new trial, had material influence with Supreme Court in determining whether verdict was excessive.
APPEAL from the circuit court of Hancock county HON. W. A. WHITE, Judge.
Action by Holster Diggs against the Gulf Coast Motor Express Company, Inc., and another. From a judgment for plaintiff after ordering remittitur, defendant appeals. Affirmed.
Affirmed.
Leathers & Greaves, of Gulfport, for appellant.
It is appellants' contention that the action of the court in allowing the witness Kinney to testify concerning the plea, or answer, which was filed in the New Orleans court, over the objections of appellants, and the court's allowing this plea to be introduced in evidence, over appellants' objection, was highly prejudicial to appellants and constitutes reversible error.
49 C. J., sec. 121, page 122, sec. 123, page 125, sec. 126, page 126, and sec. 127; Hall v. Waddill, 78 Miss. 16; The Co-operative Life Assn. v. Leflore, 53 Miss. 1; Crump v. Gerock, 40 Miss. 765.
Our court has held that the statute under which appellee sought to bring the Gulf Coast Motor Express, Inc., into court, contemplates agents with general authority and discretion and not mere employees.
Saxony Mills v. Wagner, 94 Miss. 233, 47 So. 899.
If it could be said that Couvillon was an agent of the Gulf Coast Motor Express, Inc., at the time of the collision complained of, he was not the character of agent as contemplated by the statute and, therefore, process served upon him for the Gulf Coast Motor Express, Inc., would be void and of no effect.
The appellee also attempted to bring the Gulf Coast Motor Express, Inc., into court under the provisions of chapter 287 of the Laws of 1932 of the state of Mississippi. This attempt, we say, was wholly abortive, of no effect and void for the simple reason that it was amply shown by the evidence on the motion to quash of the Gulf Coast Motor Express, Inc., that the Gulf Coast Motor Express, Inc., was not in any sense of the word operating or causing to be operated the truck which Couvillon was driving at the time of the accident, nor was the Gulf Coast Motor Express, Inc., the owner of the truck. The action of the lower court in overruling the motion of the Gulf Coast Motor Express, Inc., to quash the service of summons on it was reversible error.
The appellee failed, as he had done already by his own witnesses, to establish by the appellants' witnesses any relation between Couvillon and the Gulf Coast Motor Express, Inc., which would bind the Gulf Coast Motor Express, Inc. We take it that it is unnecessary to argue the proposition that a plaintiff, in seeking to hold one he terms as "master" or "servant," must show that the relation existed. The ordinary rules of "master and servant" are to be applied to the relation of "owner and driver" of an automobile.
Appellee has not shown either that the truck was owned or operated by the Gulf Coast Motor Express, Inc., that Couvillon was a servant or agent of the Gulf Coast Motor Express, Inc., or that, if he was the latter, he was acting within the scope of his employment or agency.
It must certainly be concluded from the evidence in this case on the question with which we are dealing, that the evidence, without any dispute, shows that the Gulf Coast Motor Express, Inc., was interested in the ultimate result, as a whole, of the work done by Couvillon, but not in the details of the performance of that work nor as to the means of accomplishing that work; and that the Gulf Coast Motor Express, Inc., had no control whatsoever over the manner, method or means employed by Couvillon in delivering freight.
Isaacs v. Prince & Wilds, 97 So. 558, 133 Miss. 195; Woods v. Franklin, 118 So. 450, 151 Miss. 635; Vicksburg Gas Co. v. Ferguson, 106 So. 258, 140 Miss. 543; McDonald v. Hall-Neely Lbr. Co., 147 So. 315, 165 Miss. 143.
The verdict as rendered by the jury is in such an excessive amount as to show bias, prejudice and passion on the part of the jury in favor of the plaintiff and against the defendants.
B. Kullman & Co. v. Samuels, 114 So. 807; Shell Petroleum Corp. v. Kennedy, 141 So. 335, 167 Miss. 305; City of Vicksburg v. Scott, 151 So. 914, 168 Miss. 572; Beard et al. v. Williams, 161 So. 750.
Gex & Gex, of Bay St. Louis, for appellees.
On the return date without filing any other pleading the Gulf Coast Motor Express, Inc., filed its motion to quash which motion was solely on behalf of the Gulf Coast Motor Express, Inc.
After the court overruled the motion to quash, appellants filed motion to require plaintiff to make his declaration more specific, which motion was sustained, and an amendment allowed; whereupon pleas of the general issue were filed on behalf of both appellants.
By virtue of section 2999 of the Mississippi Code of 1930, it is provided that a motion to quash when overruled constitutes a general appearance.
Fisher v. Insurance Co., 112 Miss. 30.
Certainly by its motion to quash the defendant submitted itself to the jurisdiction of the court even though the testimony adduced on the motion to quash which the defendant contends was objectionable had been erroneously admitted. The appellant was not harmed thereby because the only effect thereof was to place the defendant in court at the next term, if it had properly moved for a continuance, and since defendant's motion for continuance was in the alternative, either for the term, or to a later date at the pending term, the motion having been granted, certainly the defendant cannot complain at this time that the court failed to give it more than it requested in its motion.
As a matter of fact personal service was had on the defendant through its agent C. C. Couvillon and on that service of process no attack was made whatever by the defendant.
Mayfield, Admr., v. Barnard, Admr., 43 Miss. 270; Railroad v. Swanson, 92 Miss. 485; Lamb v. Russell, 81 Miss. 382.
The evidence was sufficient to justify the finding that the defendants herein were liable to the plaintiff.
It was established beyond any doubt that C. C. Couvillon was solely an agent of the Gulf Coast Motor Express, Inc. The fact that he was employed on a commission basis under an oral contract, the terms of which were not fully shown did not in any way change the relationship of master and servant, between the Gulf Coast Motor Express, Inc., and C. C. Couvillon.
Texas Co. v. Mills, 171 Miss. 231; Gulf Refining Co. v. Nations, 167 Miss. 315; Southern Express Co. v. Brown, 67 Miss. 260; Finkbine Lbr. Co. v. Cunningham, 101 Miss. 292; D'Antoni v. Albritton, 126 So. 836.
There is nothing now before this court from which it could assume that the amount of the judgment was the result of prejudice, passion, or corruption on the part of the jury.
M. J. & G. N. R. R. Co. v. Hurst, 36 Miss. 600; Miss. Central R. R. Co. v. Lott, 118 Miss. 816; Y. & M. V. R. R. Co. v. Dees, 121 Miss. 438; Laurel Light & Ry. Co. v. Jones, 137 Miss. 143; Bateman v. Teche Lines, 163 Miss. 417; Gulf Refining Co. v. Moody, 172 Miss. 377.
Argued orally by P. D. Greaves, for appellant, and by W. J. Gex, Sr., for appellee.
Appellee brought this action in the circuit court of Hancock county against appellants, Gulf Coast...
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