Hercules Powder Co. v. Westmoreland

• Decision Date: 25 May 1964
• Docket Number: No. 43065,43065
• Citation: 164 So.2d 471,249 Miss. 849
• Parties: HERCULES POWDER COMPANY v. Mrs. Tom (Juanita) WESTMORELAND.
• Court: Mississippi Supreme Court

Page 471

164 So.2d 471

249 Miss. 849

HERCULES POWDER COMPANY v. Mrs. Tom (Juanita) WESTMORELAND.

No. 43065.

Supreme Court of Mississippi.

May 25, 1964.

Wakins & Eager, Joe W. Hobbs, Jackson, for appellant.

George B. Grubbs, George G. Williamson, Thomas B. Alexander, Mendenhall, for appellee.

BRADY, Justice:

This suit arose out of an automobile accident which occurred on February 15, 1962, on a public gravel road in Simpson County, known as the Mendenhall-Bogan Ridge Road. A Negro by the name of John L. Hays was driving his truck, and riding with him in the truck were two other Negroes. An automobile driven by the appellee, Mrs. Tom (Juanita) Westmoreland, ran off the road and struck two pine trees, causing the injuries complained of. No collision between the two vehicles took place.

Suit was instituted in the Circuit Court of Simpson County on the 20th day of June, 1962, against Hercules Powder Company, a corporation, and John L. Hays, defendants. A judgment and verdict in the amount of $9,100 was obtained against said defendants. The defendant John L. Hays paid appellee the sum of $5,000 in return for a covenant not to sue, and this codefendant below, is not a party to this appeal from the judgment of the circuit court.

In the circuit court the liability of the appellant was predicated upon the alleged master and servant, or employer and employee, relationship between John L. Hays and the appellant. The appellee attempted to show that Hays was acting within the scope of his employment as a servant of appellant, Hercules Powder Company.

At the conclusion of the appellee's testimony, the appellant moved to exclude the testimony of the appellee and asked for a peremptory instruction, which was denied, and at the conclusion of the appellant's testimony, this same motion was renewed, which was likewise overruled. It is the principal position of the appellant that the relationship which existed between the codefendant Hays and the appellant herein at the time of the accident was that of a purchaser and seller, or an independent contractor, and, for this reason, the appellant's requested peremptory instruction should have been granted by the trial court. It is further contended by the appellant that, even if the relationship of independent contractor did not exist and that appellant was actually the employer and master of the codefendant, Hays, nevertheless, at the time the alleged accident occurred, the appellant was not engaged within the scope of his employment or in the furtherance of his master's business and, therefore, the appellant is not liable for the torts of the servant Hays.

As is to be expected in cases of this kind, the facts are very prolix. We will, however, endeavor to restrict the facts to essentials only, as much as possible.

On February 15, 1962, at approximately 7:15 A.M., the appellee, Mrs. Tom (Juanita) Westmoreland, was driving a 1955 Dodge automobile in a northerly direction along the Mendenhall-Bogan Ridge Road. At approximately the same time, the codefendant, John L. Hays, was driving a 1961 Chevrolet two ton truck in a southerly direction along said road. The road curves as it goes over a hill. As the truck, which was operated by Hays, topped the hill and was proceeding around the curve, the 1955 Dodge automobile, being operated by the appellee in a northerly direction, was seen approaching. This hill and curve is located approximately three miles south of Mendenhall, Mississippi. There is a sharp conflict in the testimony from this point onward, the appellee maintaining that the truck being driven by Hays was not on its side of the road but was partially across the center portion of said road and, in order to avoid a direct collision with the truck, the appellee was forced to turn her vehicle to the right and into a slight depression, causing her to leave the road, where she struck a pine tree near the road, resulting in severe damage to her automobile and personal injuries to herself. No claim for any sum is made on account of the damages done to the automobile, which the record disclosed belonged to appellee's husband. The appellee testified she was traveling around twenty to twenty-five miles per hour, or at some reasonable speed comparable to this, and that when she saw the truck it was some fifty feet away, and then she realized that she was not going to be able to pass the truck. Hays and his two Negro employees who were in the truck approximated the distance the appellee was from them as being as far as two hundred to three hundred feet away, and estimated the speed which the appellee was driving as between fifty and sixty miles per hour; that the appellee's vehicle left the road and entered a slight ditch before it had reached the spot where the truck belonging to the appellant was; that she lost control of the automobile and that it criss-crossed the road, missing the truck, and striking a pine tree or small sapling, then crossing back over the road and ultimately striking two other pine trees off the road, one of which was of some size, causing the aforesaid injuries.

Elmo Funchess and Willie Lee White were employees of John L. Hays and were riding with him in the truck at the time. The testimony of Hays and the two witnesses was that he was to his right side of the road, close to the edge of the road, varying in distance from three feet to six or eight inches therefrom, but not over the median line of the gravel road. The record clearly indicates that Hays and his two employees believed that it was the speed at which the appellee's car was traveling and her loss of control of the car which proximately caused the wreck. There is no doubt that the car and truck never collided. The width of the road varies in distance from fourteen feet to twenty and a half feet. The patrolman estimated the distance over which this accident took place was one hundred feet in length and that the road was between eighteen and a half and twenty and a half feet wide at this point. The width of the truck is undisputed as being between seven and a half to eight feet in width.

The appellee claimed damages in the sum of $60,000 for the personal injuries which she alleges to have sustained. The record discloses that from March 10, 1962 (the accident occurring on February 15th) through August 4, 1962, she had a drug bill of $34.75, most of which was for prescriptions which she alleged it was necessary for her to take on account of her injuries; that she was admitted to the Simpson County Hospital on February 15, 1962, at approximately 8:45 A.M., and that she was discharged from the hospital at 6:35 P.M. on February 17, 1962.

There are several reasons why the verdict for the appellee cannot stand in this case and for which this case will have to be reversed and remanded for trial in the court below, unless the appellant here was entitled to a peremptory instruction. It is to this fundamental question that we address ourselves, and if this question is resolved in favor of the appellant and judgment should be entered here for the appellant, then it is unnecessary to consider the other questions which relate solely to the reversal of the case and a remanding of the same for a new trial. For this same reason, it is unnecessary to consider any other errors assigned.

The fundamental question is whether or not, under the facts as disclosed in this record, John L. Hays was an independent contractor or whether or not John L. Hays was a servant and employee of the appellant. In order to determine this question, certain basic facts must be considered.

The record discloses that John L. Hays was the owner of the truck in question; that he was paying for this truck as he had paid for other trucks; that John L. Hays had in his employment two Negroes, named Elmo Funchess and Willie Lee White. The record further shows that all three of these persons were riding in the truck which belonged to John L. Hays and which was being driven by Hays. The record discloses they were en route to a Mr. Jim Peacock's place, where they proposed to dig, load and to haul stumps. The record discloses that on February 14th Hays had executed a wood purchase contract with Mr. Peacock for pine stumps located on his farm; that the contract form had been furnished by appellant. The record further discloses that the appellant had a substation or shipping station located at Weathersby, Mississippi, where there were located scales, a railroad siding and a dragline crane apparatus used for the unloading of stumps from the trucks of the sellers and onto railroad cars, and that at this substation Hercules Powder Company had four employees, who weighed...