Ling v. Bryant, 39360
| Decision Date | 15 November 1954 |
| Docket Number | No. 39360,39360 |
| Parties | Edgar Charleston LING, a minor, by next friend Henry Ling, v. F. C. BRYANT, Sr. and F. C. Bryant, Jr. |
| Court | Mississippi Supreme Court |
Joseph E. Wroten, Greenville, for appellant.
Wynn, Hafter, Lake & Tindall, Greenville, for appellees.
The appellant, a minor, brought suit by his next friend in the County Court of Washington County for the recovery of damages for personal injuries, consisting principally of a fracture of one of the bones in his ankle, while employed at a place of business owned by F. C. Bryant, Sr. and managed by F. C. Bryant, Jr. He recovered a judgment for $650 in the county court and on appeal therefrom the circuit court held that the defendants were entitled to a peremptory instruction in the county court and accordingly reversed the judgment of the county court and entered a judgment in favor of the defendants, from which action the employee appeals.
The appellant at the time of the injury was about 16 1/2 years of age and attended school but worked three or four days a week after school hours and also worked on Saturdays. F. C. Bryant, Sr. owns a plantation and devotes most of his time to its management. He also owns a place of business which is divided into two sections and is in charge of F. C. Bryant, Jr. The front section is a retail business for the sale of ice cream, sandwiches, etc, to drivein customers. Mrs. F. C. Bryant, Jr. worked inside the front part of the building and the customers were served by 'car hops.' In the rear section of the building is a wholesale ice cream business, and it is not clear from the record whether the ice cream is manufactured on the premises. The minor plaintiff was employed to work in connection with this wholesale business. On the occasion in question he had taken a Chevrolet pick-up truck from the premises, near the lunch hour, and was en route to his home to change his clothes and to get lunch, his trousers having been torn in the course of his work. He had no driver's license and had not had much experience in the operation of motor vehicles and in the changing of tires. While en route to his home one of the front tires went flat and he undertook to change the tire. There were two jacks in the pick-up truck and he testified that neither of the jacks was in working condition. Mr. F. C. Bryant, Jr. testified that one of the jacks would work while the other would not. At any rate, the plaintiff went to a nearby garage and borrowed a hydraulic jack and proceeded to jack up the front end of the truck and to remove the flat tire therefrom. When he started to put the good tire on the wheel he discovered that it was necessary to jack the truck a little higher and while he was engaged in doing this the truck slipped from the jack and fell to the ground and the bumper caught his leg, and as a result one of the bones in his ankle was fractured. His suit is predicated on the allegation that he was inexperienced in the use of jacks and in the changing of tires and also in driving. It was admitted that on a few occasions at least he had driven this truck in the course of his employment with the knowledge and consent of the defendants. The defendants contended that on most of these occasions F. C. Bryant, Jr. was riding in the cab with him. There was a direct conflict in the evidence as to whether or not on the occasion in question the employee was using the truck with the consent of F. C. Bryant, Jr., and there was also a sharp conflict in the evidence in other material matters. In short, the plaintiff's evidence was sufficient to make a question of fact for the jury, and the defendants' evidence was sufficient to justify a verdict in...
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