Isaacs v. Prince & Wilds

• Decision Date: 15 October 1923
• Docket Number: 23476
• Citation: 97 So. 558,133 Miss. 195
• Parties: ISAACS v. PRINCE & WILDS
• Court: Mississippi Supreme Court

97 So. 558

133 Miss. 195

ISAACS v. PRINCE & WILDS

No. 23476

Supreme Court of Mississippi

October 15, 1923

Division B

(Division B.) January 1, 1920

1. MASTER AND SERVANT. Servant in general employment of one when performing work for another held servant of latter.

A servant in the general employment of one person who is temporarily in the employment of another to do the latter's work, and who is subject to the control and direction of the third person is the servant of such third person, though he may be paid by the general employer, and in such case the person whose work the servant is doing and who has the right at the time to control the servant is alone responsible for the negligence of the servant, unless the facts make both the original employer and the third person joint tort-feasors.

2. MASTER AND SERVANT. Owner of motor truck hired by day with driver to work for another not liable for negligence of driver.

To make the owner of an automobile liable for injuries inflicted by a chauffeur operating the automobile, the servant must be engaged in and about his master's business at the time of the injury, and where a motor truck was hired by the day, together with a driver, the driver being paid by the owner, but working for and subject to the direction of another, the owner is not liable for the negligence of the driver.

HON. E L. BRIEN, Judge.

APPEAL from circuit court of Warren county, HON. E. L. BRIEN, Judge.

Suit by Mrs. Isabelle Isaacs against Prince & Wilds. From a judgment for defendant, plaintiff appeals. Affirmed.

Judgment affirmed.

Hirsh Dent and Landau, for appellant.

In presenting this case we shall discuss only two propositions (a) The court below erred in excluding the plaintiff's evidence and peremptorily instructing the jury to find for the defendant. (b) The court erred in not sustaining plaintiff's motion for a new trial.

NO CONFLICT OF EVIDENCE. There is no conflict of evidence in this case. No evidence was offered for the defendant. On the evidence of plaintiff the court held that the defendant was not liable for the damage to plaintiff's automobile, and therefore gave the defendant the affirmative charge to the jury to find for the defendant.

The evidence disclosed that the defendant owned and operated the motor truck which struck and practically demolished the plaintiff's automobile. The defendant had procured license for the truck and paid the driver his wages for running the truck in the livery business in the city of Vicksburg. The truck and its driver were doing livery business for the Cumberland Telephone Company at the time of the collision and damage to plaintiff's automobile. The defendant was being paid ten dollars per day by the telephone company for the use of the truck and the driver. The court below took the position that defendant, Prince & Wilds, was not liable to plaintiff for damage done by the collision of its truck with plaintiff's automobile, and this, too, notwithstanding the fact that the truck was being run in open and flagrant violation of the law of the state and the city of Vicksburg.

DRIVER OR OWNER OF MOTOR VEHICLE IS LIABLE FOR DAMAGES PRODUCED BY FAILURE TO OBSERVE THE STATUTE WITH REFERENCE TO DRIVING ON STREET OR HIGHWAY. See Flynt v. Fondren, 122 Miss. 249, construing sections 5775, 5781, and 5785, Hemingway's Code (Laws of 1916, chapter 116).

We submit, that under such facts, the defendant, Prince & Wilds, was liable for the damage negligently done in the operation of the truck. Standard Oil Company v. Anderson, 212 U. S. ; Little v. Hacket, 116 U.S. 371.

WHERE THE OWNER OF A TEAM OR AUTOMOBILE HIRES IT TO ANOTHER PERSON AND FURNISHES A DRIVER, THE OWNER AND NOT THE HIRER IS LIABLE FOR DAMAGES CAUSED BY THE NEGLIGENCE OR MISCONDUCT OF THE DRIVER. 20 Am. and Eng. Enc. Law (2nd Ed.), 178; Huff v. Ford, 30 Am. Rep. 645; Joslin v. Ice Co., 45 Am. Rep. 54; Stewart v. California Improvement Company, 52 L. R. A. 205; Deiscall v. Towell, 181 Mass. 416, 63 N.E. 922; Frekker v. Nicholson, 13 L. R. A. (N. S.) 1122, and note.

Under the law liability in this case was established against the defendant, and the learned circuit judge in the court below erred in directing a verdict for the defendant. We do not believe this court will hold that a truck confessedly owned and licensed to do a livery business on the streets and public highways in charge of a chauffeur employed and paid by it, which negligently and in open violation of law, ran into and destroyed an automobile, which was being properly and carefully operated, is not liable.

Brunini & Hirsh, for appellee.

The sole question for consideration in this case is simply this: "Was appellee responsible for the damage done to the car of appellant?"

The lower court excluded the plaintiff's testimony at its conclusion and directed a verdict for the defendant upon the sole ground that appellant failed to show any liability whatever on the part of appellee for the damage done.

The truck was delivered over by Prince & Wilds, appellee, to the telephone company. The latter had exclusive control both of the truck and the driver. It simply paid at the end of the week, ten dollars per day for the use of the truck and the only connection that Prince & Wilds had with the driver was to pay him, out of the ten dollars, so much per day for driving the truck. The truck was not even returned by the telephone company at the end of the day to Prince & Wilds, but it was kept during the whole time in the possession of the telephone company. Prince & Wilds did not even know the use that was being made of the truck by the telephone company.

Furthermore, they didn't even know anything about the competency of young Richey to drive the truck. "It may be stated as a general rule in the law of automobile operation, that, conceding the negligence of the operator of an automobile, the owner thereof when not riding in the car is not liable for injuries arising from such negligence, merely because he is the owner of the vehicle." Huddy on Automobiles (6th Ed.), page 789.

The authorities are uniform in holding that the owner of the vehicle is not responsible for the acts of the driver for the reason that the hirer is the master. In some cases the facts presented make it exceedingly difficult to determine whether the owner or the hirer is the master at the time of the accident. It would be well to review some of the decisions of the courts covering this narrow and particular point in order to get a comprehensive conception of what in one instance will make the owner the master and in another instance the hirer the master. Carr v. Burke, 169 N.Y.S. 981 (App. Div., April 12, 1918); McNamara v. Leipzig, 180 A.D. 515, 167 N. Y.S. 981; Diamond v. Steinberg Truck Company, 149 N.Y.S. 1000; Spellacy v. Haggerty Motor Trucking Company, 185 N.Y.S. 355; Baum v. Link, 180 N.Y.S. 468; Braxton v. Mendelson, 179 N.Y.S. 845; Grastataro v. Brodie, 179 N.Y.S. 324; Finegan v. H. C. & A. I. Piercy Contracting Co., 178 N.Y.S. 785; Burns v. Southern Pac. Co., et al., 185 P. 875; Burns v. Jackson, 200 P. 80; Stewart v. California Imp. Co., 131 Cal. 125, 63 P. 177, 724, 52 L. R. A. 205; Billig v. Southern Pacific Co., 209 P. 241; Burns v. Jackson, 211 P. 821; Coughlan v. Cambridge, 166 Mass. 277, 44 N.E. 218; Campbell v. New York, N. H. & H. R., 102 A. 597; Greenberg & Bond Co. v. Yarbrough, 106 S.E. 624; Sargent Paint Co. v. Petrovitzky, 124 N.E. 881; Baker v. Magnolia Petroleum Co., 207 P. 789; Hill v. Poindexter, et al., 188 S.W. 851; Grothmann v. Hermann et al., 241 S.W. 461; Puhlman et al. v. Excelsior Express and Standard Cab Company, 103 A. 218; Badertcher v. Independent Ice Co. et al., 184 P. 181; Core et ux. v. Resha, 204 S.W. 1149; Olson et ux. v. Clark et ux., 191 P. 810; Ash v. Century Lumber Company, 133 N.W. 888; W. S. Quinby Co. v. Estey, 108 N.E. 908; Philadelphia & R. Coal & Iron Co. v. Barrie, 179 F. 50; "The Satilla," 235 F. 58; The Louise Rugge, 239 F. 458; Central R. R. Co. v. De Busley, 261 F. 561; George A. Fuller Co. v. McCloskey, 35 App. D. C. 595; Standard Oil Company v. Anderson, 212 U.S. 215.

The masters' responsibility cannot be extended beyond the limits of the master's work. If the servant is doing his own work or that of some other, the master is not answerable for his negligence in the performance of it.

It sometimes happens that one wishes a certain work to be done for his benefit, and neither has persons in his employ who can do it nor is willing to take such persons into his general service. He may then enter into an agreement with another. If that other furnishes him with men to do the work and places them under his exclusive control in the performance of it, those men become pro haec vice the servants of him to whom they are furnished. But, on the other hand, one may prefer to enter into an agreement with another than that other, for a consideration, shall himself perform the work through servants of his own selection, retaining the direction and control of them. In the first case, he to whom the workmen are furnished is responsible for their negligence in the conduct of the work, because the work is his work, and they are, for the time, his workmen. In the second case, he who agrees to furnish the completed work through servants over whom he retains control is responsible for their negligence in the conduct of it, because, though it is done for the ultimate benefit of the other, it is still, in its doing, his own work. To determine whether a given case falls within the one class or the other we must inquire 'whose is the work being performed' . . . a question which is usually answered by ascertaining who has the power to control and direct the servants in the performance of their work. Here we must...