Hamilton Bros. Co. v. Weeks

• Decision Date: 09 December 1929
• Docket Number: 28183
• Citation: 155 Miss. 754,124 So. 798
• Court: Mississippi Supreme Court
• Parties: HAMILTON BROS. CO. v. WEEKS

124 So. 798

155 Miss. 754

HAMILTON BROS. CO. v. WEEKS

No. 28183

Supreme Court of Mississippi

December 9, 1929

Division B

Suggestion of Error Overruled January 6, 1930.

APPEAL from circuit court of Harrison county. HON. W. A. WHITE Judge.

Action by J. H. Weeks against the Hamilton Bros Company. From a judgment for plaintiff, defendant appeals. Affirmed.

Affirmed.

W. L. Guice, of Biloxi, and Jno. L. Heiss and J. L. Taylor, both of Gulfport, for the appellant.

An employee who is being transported to and from his work, as in this case, is a servant while thus being transported, because the transportation is incidental to, and is so closely connected with, the main employment as to be a part of it.

Great Southern Lumber Co. v. Hamilton, 101 So. 788; Dayton Coal & Iron Co. v. Dodd, 37 L.R.A. (N.S.) 456; Kilduff v. Boston Elev. R. Co. (Mass.), 9 L.R.A. (N.S.) 873; 39 C. J., 555-6.

The duty of the master as to the competency of his servants is to exert due care in making the appointment, and not to negligently or knowingly retain in his service an incompetent servant.

Hines v. Cole, 85 So. 199 at 200; Ingram Day Lumber Co. v. John, 64 So. 934; N. O. & G. N. R. R. Co. v. Hughes, 49 Miss. 259.

If the driver's incompetency was established by the evidence, the appellee would not be heard to complain against the appellant as he is estopped by his own knowledge of things unknown to the master to whom he does not give the information.

N. O. & G. N. R. R. Co. v. Hughes, 49 Miss. 259.

The appellee and the driver of appellant's truck were fellow-servants and appellee cannot recover for the driver's negligence.

Corpus Juris, page 555-6; 4 R. C. L., par. 476.

Mize, Mize & Thompson, of Gulfport, for appellee.

The appellee was not a servant of appellant in the performance of his duties at the time of the accident, but simply an invitee of the appellant and the appellant owed him the duty to exercise reasonable care in driving the conveyance upon which the appellee was riding.

Great Southern Lumber Company v. Hamilton, 101 So. 787; 4 Labatt on Master and Servant (1 Ed.), page 1832; Vol. 4 (2 Ed.), pp. 4677 to 4683; McNulty v. Penn. R. R. Co., 182 Penn. 479, 38 L.R.A. 376; Chattanooga Rapid Transit Co. v. Venable, 105 Tenn. 460, 51 L.R.A. 886, 58 S.W. 861; Peterson v. Seattle Traction Co., 23 Wash. , 53 L.R.A. 586; 25 Wash. 643; 53 L.R.A. 596; Sullivan v. New York, N. H. & H. R. Co., 73 Conn. 203, 47 A. 131; G. & S. I. R. R. Co. v. Sullivan, 119 So. 501; Lynch v. Texas & Pacific R. R. Co., 133 S.W. 523. Kindall Lumber Co. v. State, 103 A. 141; Williams v. Union Switch & Signal Co., 158 N.W. 901; 4 R. C. L., par. 476; Dickerson v. West End Street Railway Company, 52 L.R.A. 326; 39 Corpus Juris, page 555-6; Harris v. City Co., 50 L.R.A. (N.S.) 706; Gregory v. Ga. Granite Co., 132 Ga. 587; Hass v. St. Louis Ry. Co., 90 S.W. 1155; Klinck v. Chicago Ry. Co., 52 L.R.A. (N.S.) 70; William v. Barnes Lbr. Co., 32 So. 460; Pigeon v. Lane, 11 Ann. Cas. 371.

Argued orally by John L. Heiss, for appellant, and by S. C. Mize, for appellee.

OPINION

Anderson, J.

Appellee brought this action in the circuit court of Harrison county against appellant to recover damages for an injury received by him while being transported on one of appellant's trucks from his place of work at Gulf Hills to the city of Gulfport, alleged to have been caused by the negligence of Walter Wood, appellant's truck driver. Appellee recovered a judgment in the sum of five thousand dollars, from which judgment appellant prosecutes this appeal.

Appellee was an employee of appellant, but claimed that at the particular time he received his injury, the relation of master and servant did not exist between himself and appellant; that he was being transported on one of appellant's trucks as a mere invited passenger, and therefore the fellow-servant rule did not apply, and appellant was liable for the negligence of its truck driver, resulting in injury to appellee.

Appellee claimed further that, if at the time of his injury the relation of master and servant did exist, nevertheless appellant was liable for the injury, on the ground that the injury was brought about by the incompetency of appellant's truck driver, which unfitness of the truck driver was known to appellant, or could have been known by the exercise of reasonable care on the part of appellant. By appropriate instructions the question of the liability of appellant for the injury was submitted to the jury on both of these grounds.

Appellant's position is that the court should have granted its request for a directed verdict for the reasons (1) that the evidence showed without conflict, at the time appellee was injured, the relation of master and servant existed between him and appellant, and therefore appellant was not liable for the negligence of appellant's fellow servant, Walter Wood, which negligence brought about the injury; and (2) that the evidence showed without conflict that appellant was guilty of no negligence in selecting its truck driver, Walter Wood.

There was little conflict in the evidence as to many of the material facts of the case. Appellant was engaged in the roofing and plumbing business, with its office and warehouse in Gulfport. In its business it employed a large number of men, among whom was appellee. On out of town contracts it furnished free transportation to its employees, carrying them to their jobs in the morning, and bringing them back after the day's work was completed. In returning from their work, employees who desired to do so were allowed to get off of the truck on which they were being transported at any point before reaching Gulfport. Appellant had a notice posted at its plant in Gulfport, informing its employees on out of town jobs of the hour they should be at the plant to take advantage of this transportation. However, it was not compulsory on employees to avail themselves of the transportation furnished by the appellant; they could use their own cars in going to out of town jobs if they desired, and they often did so. Frequently appellee used his car in going to such jobs. Appellant carried its employees to out of town jobs on its trucks which carried materials to be used in the work. These trucks were driven by appellant's regular drivers. In returning from their work they were on their own time; their day's work was over. While being so carried they received no compensation from appellant, nor were they under any duty to serve appellant in any manner whatever.

On the day of the injury, Walter Wood was driving one of appellant's trucks, having been sent out to pick up its various employees who were working on jobs around Ocean Springs and Biloxi and bring them back to Gulfport. Wood drove the truck to Gulf Hills, east of Biloxi, where appellee and several of his fellow employees were found after the day's work was over. The appellee and others got on the truck, which proceeded toward Biloxi, picking up other employees of appellant, and one not an employee, until there were sixteen on the truck. At a point between Biloxi and Gulfport the truck skidded and turned over, crushing appellee's leg, resulting in his serious and permanent injury. The evidence tended to show that the injury was the result of the negligence of the truck driver, Walter Wood.

On the morning of the injury, appellee appeared, at appellant's plant in Gulfport, to go out on a job which appellant had at Gulf Hills. Appellee had his own car on that day, in which he intended to go to and from his work, as he had often done before. Appellant insisted, however, that appellee avail himself of one of the trucks which were ready to go to Gulf Hills; appellee accepted the invitation, and went and returned in the truck as above stated.

The evidence tended to show that appellant made no contract to transport appellee and its other employees to and from its out of town jobs on which they were engaged; that there was no understanding, express or implied, between them and appellant that the latter, as a part of his contract of employment, was under obligation to carry its employees to and from out of town jobs, and that the means of transportation offered by appellant were solely for the convenience of its employees, who were free to avail themselves of such means, or to use their own cars in going to and from their work.

We will first consider whether the court erred in submitting to the jury the question whether the relation of master and servant existed between appellant and appellee at the time of the latter's injury. If that relation did not exist, appellant was liable for the negligence of his truck driver, Walter Wood, resulting in the injury. On the other hand, if the relation of master and servant did exist at the time of the injury, appellant is not liable for the injury, because appellee and the truck driver, Walter Wood, were fellow-servants, and the fellow-servant doctrine would apply.

Appellant contends that the case of the Great Southern Lumber Co v. Hamilton, 137 Miss. 55, 101 So. 787, 788, is decisive of this question in appellant's favor. Hamilton, the plaintiff in that case, was employed by the defendant lumber company as a sawyer out in the woods; his duties were to cut and saw logs for transportation to the mill site of the lumber company, which operated a large motortruck between the mill site and the camp in the woods where the logs were sawed and cut. Its employees were transported to and from their work on this truck. The evidence in that case showed that it was a part of the contract of service between the plaintiff and the lumber company that the former was to be furnished conveyance by the latter to and from his daily work; the means of transportation being...