H. Weston Lumber Co. v. Hibbens
| Citation | 182 So. 115,182 Miss. 669 |
| Decision Date | 20 June 1938 |
| Docket Number | 33256 |
| Court | United States State Supreme Court of Mississippi |
| Parties | H. WESTON LUMBER CO. et al. v. HIBBENS |
Suggestion Of Error Overruled July 25, 1938.
APPEAL from the circuit court of Hancock county, HON.W. A. WHITE Judge.
Action by Amelia Hibbens against H. Weston Lumber Company and others for injuries sustained in a collision between an automobile and a gasoline railroad engine. From the judgment, named defendant and defendant Hubert Pearson appeal, and plaintiff cross-appeals. Affirmed.
Affirmed.
Robert L. Genin, of Bay St. Louis, for appellant, H. Weston Lbr. Co.
There are several questions which are used to determine whether or not work is performed as master and servant or as an independent contractor. The law is well settled as to what these questions are. Our Supreme Court in the case of New Orleans, B. R. V. & M. R. R. Co. v. Norwood, 62 Miss. 565, 52 Am. Rep. 191, phrased the questions to decide whether or not work was being performed as master and servant or as an independent contractor, and phrased these questions as follows: "(1) The right of selecting the servant; (2) the right to discharge the servant; (3) the right to control the servant;" and the court further said "that he is not a master who is interested in the ultimate result of the work done as a whole, but not in the details of its performance."
Our court in the case of Callahan Construction Co. v. Rayburn, 110 Miss. 107, 69 So. 669, 670, said: "An 'independent contractor' is one who renders service in the course of an occupation, representing the will of his employer only as to the result of his work, and not as to the means by which it is accomplished."
Crescent Baking Co. v. Denton, 147 Miss. 639, 112 So. 21; Hutchinson-Moore Lbr. Co. v. Pittman, 154 Miss. 1, 122 So. 191; Louis Werner Sawmill Co. v. Northcutt, 161 Miss. 441, 134 So. 156.
The defendant's testimony, and the rebuttal thereof, magnifies the errors of the court below in refusing to direct a verdict for the H. Weston Lumber Company. Pearson, the man operating the car with the rails loaded thereon, was under a contract with David J. Joseph to do the work, as testified to by plaintiff's own witnesses. The rails, car, motor car and cross-ties were all the property of persons other than the H. Weston Lumber Company, and the employees were all employees of Pearson. The defendant, the H. Weston Lumber Company, had no employee or servant around the accident, and the defendant, the H. Weston Lumber Company, cannot, by the greatest stretch of the imagination, be charged with any negligence.
T. J. Weaver, of Picayune, for appellant, Hubert Pearson.
It was clearly the duty of the (plaintiff) appellee, to warn and caution the driver of the car, if there was any apparent danger, and as this duty is imposed upon the plaintiff, the burden of proving the compliance with the law, and the performance of this duty rests solely upon the plaintiff.
A. & V. Ry. v. Davis, 13 So. 693; I. C. R. R. Co. v. McLeod, 29 So. 76.
In the case at bar there was a man at the crossing frantically waving for the car to stop, and was seen by the driver of the vehicle in which (plaintiff) appellee, was riding, and should have been seen by the appellee.
In the case of Illinois Central v. McLeod, the court plainly states that the passenger or occupant of a vehicle is chargeable with the negligence of the driver, in an action against a third party, when the plaintiff does not show that she did all in her power to prevent the driver from committing the negligence complained of, and this is the law consistently followed by our Supreme Court, including the late case of Sternberg Dredging Co. v. Screws, 166 So. 754, and the cases therein cited.
The plaintiff, by all of her testimony, which is undisputed, shows a voluntary, unconstrained, noncontractual surrender of all care for herself to caution of the driver, and under these conditions the negligence of the driver is imputed to her, and she becomes charged therewith, and the jury should not have been instructed that the negligence of the driver cannot be imputed to the plaintiff unless it was shown by the preponderance of the evidence that the plaintiff had failed to caution or warn the driver of the vehicle.
Schultz v. Old Colony Street R. R. Co., 193 Mass. 309, 179 N.E. 873, 118 A. S. R. 502, 9 Ann. Cas. 402, 8 L.R.A. (N.S.) 597.
Gardner & Backstrom, of Gulfport, for David J. Joseph Company.
Admitting for the sake of argument, but not as a fact, that plaintiff had made out a case against Hubert Pearson for the jury's consideration by the testimony of herself, her mother, and her sister, when she rested her case, still there could be no case for the jury's consideration against David J. Joseph Company until it was further shown that Pearson was the servant or employee of David J. Joseph Company at the time and place of the accident in question.
Baking Co. v. Denton, 147 Miss. 639, 112 So. 21; Kisner v. Jackson, 159 Miss. 424, 132 So. 90; Lumber Co. v. Pittman, 154 Miss. 1, 122 So. 191; Caver v. Eggerton, 157 Miss. 88, 127 So. 727.
Liability in this case as against David J. Joseph Company must arise, if at all, out of the relationship of master and servant, not agency.
Crescent Baking Co. v. Denton, 147 Miss. 639, 112 So. 21.
The main essential required to constitute relationship of master and servant is that servant be subject to control of employer in operation of business or doing of thing at time in question.
Lbr. Co. v. Pittman, 154 Miss. 1, 122 So. 196; Sawmill Co. v. Northcutt, 161 Miss. 441, 134 So. 156; Construction Co. v. Rayburn, 110 Miss. 107, 69 So. 669; McDonald v. Lumber Co., 165 Miss. 143, 147 So. 315; Till v. Fairbanks Co., 111 Miss. 123, 71 So. 298; Railroad Co. v. Denton, 160 Miss. 850, 133 So. 656, 284 U.S. 305, 52 S.Ct. 141, 76 L.Ed. 310.
The true rule was admirably stated by Mr. Chief Justice SMITH in Texas Co. v. Jackson, 174 Miss. 737, 165 So. 546, as follows: There is no testimony in the record from which even an inference may be drawn that Hubert Pearson was controlled or was subject to the right of control by David J. Joseph Company at any time, or had ever entered into any contract, express or implied, with said David J. Joseph Company, and the directed verdict was proper.
Y. M. V. R. R. Co. v. Lamensdorf, 178 So. 80; Sawmill Co. v. Northcutt, 161 Miss. 441, 134 So. 156.
Section 6125 of the Code of 1930, commonly known as the whistle and bell statute, applies only to railroad companies and not to a logging railroad operated by a lumber company. There was no negligence attributable to Pearson in approaching the crossing, and there was manifest negligence on the part of the plaintiff and her mother in approaching the crossing.
Gex & Gex and Evelyn Hunt Conner, all of Bay St. Louis, and Grayson B. Keaton, of Picayune, for appellee.
From all the testimony it is apparent that the H. Weston Lumber Company both for itself and the David J. Joseph Company, exercised constant supervision over the work being done by Pearson; almost daily they gave instructions to Pearson as to the method in which the work should be done; they told him the sizes and kind of stuff to load into each car; they, through Pearson as their agent, signed a number of the bills of lading under which the cars moved; they advanced money for Pearson's payrolls; the contract was an oral one, and the details are not testified to; the only presumption which could be drawn, therefore, was that the contract itself provided for the work to be done under the supervision of the H. Weston Lumber Company, since they in truth and in fact exercised that supervision. Pearson never had any contractual relations whatever with the Weston Sand & Gravel Company, but the H. Weston Lumber Company arranged with the Weston Sand & Gravel Company to permit them to use their tractor, which they in turn furnished to Pearson. No charge was made for that whatever, which in itself is significant of the fact that the work was being done for the H. Weston Lumber Company. If Pearson had in fact been an independent contractor, it is safe to assume that an additional charge for rental of the tractor would have been made. No charge was made for the use of the Weston road; that was furnished by H. Weston Lumber Company, and in fact all the instrumentalities with which Pearson worked were the property of the H. Weston Lumber Company, with the exception of the actual rail itself. We submit that under the foregoing facts, and all the authorities on this point, Pearson was the servant of the H. Weston Lumber Company, as well as of the David J. Joseph Company.
Finkbine Lbr. Co. v. Cunningham, 101 Miss. 292; D'-Antoni v. Albritton, 126 So. 836; Kisner v. Jackson, 159 Miss. 424; 14 R. C. L. 67-76; 31 C. J. 473-475; 39 C. J. 13161323; Gulf Refining Co. v. Nations, 167 Miss. 315; Express Co. v. Diggs, 174 Miss. 650; Texas Co. v. Jackson, 174 Miss. 737; 45 C. J. 868, sec. 292; Southern Electric Securities Co. v. State, 44 So. 785, 92 Miss. 195; Boyd v. C. & N.W. Ry., 75 N.E. 496; 14 R. C. L. 97, sec. 34.
As in the case of independent contracts in general, if the thing contracted to be done, involves, as a direct consequence, a danger which the owner of the premises is bound to avoid or to provide against, then the delegation of the work to an independent contractor will not relieve from liability for consequences proximately resulting from negligence in doing the thing thus contracted to be done....
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