Long v. Woollard, 43054

• Decision Date: 11 May 1964
• Docket Number: No. 43054,43054
• Citation: 249 Miss. 722,163 So.2d 698
• Parties: Lexie McKnight LONG, Administratrix of the Estate of James B. Long, Deceased, v. Guy WOOLLARD and Farmers Elevator, Inc.
• Court: Mississippi Supreme Court

Page 698

163 So.2d 698

249 Miss. 722

Lexie McKnight LONG, Administratrix of the Estate of James B. Long, Deceased, v. Guy WOOLLARD and Farmers Elevator, Inc.

No. 43054.

Supreme Court of Mississippi.

May 11, 1964.

Philip Mansour, Greenville, Jacobs, Griffith & Hatcher, Cleveland, for appellant.

Keady, Campbell & DeLong, Greenville, for appellee.

BRADY, Justice:

This is an appeal from the Circuit Court of Washington County, Mississippi by Lexie McKnight Long, Administratrix of the Estate of James B. Long, Deceased, against Guy Woollard & Farmers Elevator, Inc. There was a jury trial which resulted in a verdict for the defendants, and upon the lower court's overruling of appellant's motion for a new trial, this appeal was perfected.

The material facts disclosed by the record are these. The declaration was filed by the administratrix, and charged that the death of her husband, James B. Long, was the direct result of the negligence of his employer, Mr. Guy Woollard, together with other negligent acts and omissions on the part of Woollard and the Farmers Elevator, Inc., hereinafter designated as Farmers, Inc. Both defendants denied negligence, and appellee Woollard pled special and affirmative defenses.

In 1961 appellee Woollard was engaged in farming in Washington County, Mississippi, where, on a 1200 acre tract of land, he raised soybeans. In raising and harvesting these beans he used combines, some John Deere tractors, one Caterpillar tractor, a pickup truck and two larger trucks. He had no foreman or overseer, but managed the farm himself. There were five employees working on his farm, all of whom were engaged in the same type of work and none of whom had any supervisory authority over the other. They were all general farming employees and all performed for the most part the same duties. During the harvest season in 1961, the deceased, James B. Long, was employed by Mr. Woollard, and his duties were the same as those of the other employees, driving combines or tractors or trucks, and doing general farm work. Employed at the same time was L. J. Cheatham, who was also a general farm employee.

Mr. Woollard's farm was located several miles from Leland, Mississippi. In Leland, the Farmers, Inc., co-defendant below and co-appellee here, operated grain storage facilities. The two larger trucks which Mr. Woollard owned were used primarily to haul beans and other produce which he harvested on his farm to the elevator in Leland for storage and sale. At one time or another Mr. Woollard and all his employees drove his trucks from the farm to the elevator storage facilities, where they were unloaded. On the afternoon of November 28, 1961, the deceased, James B. Long, was driving one of the bean trucks from the farm to Leland with a load of beans, when the truck broke down in the small village of Elizabeth. Mr. Woollard's pickup truck was dispatched to Elizabeth to shove the bean truck off. During the course of that operation, bolts connecting the rear axle on the bean truck were sheared off. The truck then could not move on its own power.

Upon determining what was wrong with the bean truck, Mr. Woollard placed a telephone call to Mr. Vince Venuti, who owned and operated a wrecker service and service station in Leland. This call was made on the day prior to Long's injury. Mr. Venuti was advised of the condition of the truck, and that Mr. Woollard would have an employee, namely, James B. Long, available to steer the truck and operate the brakes while the truck was being towed into Leland by the wrecker. Vince Venuti had in his employ two experienced Negro employees, Eddie Griffin and William Fry, who had been operating his wrecker service for about two years. Mr. Venuti testified that he was employed by Mr. Woollard to bring the loaded truck to the Farmers, Inc. the following morning and to get them to unload it, and then to take the truck to the Chevrolet company for necessary repairs. He was told to do it as quickly as possible, because Mr. Woollard was running behind time in moving the beans and was minus a truck since this one was broken.

The record discloses that Venuti agreed to render that service, and on the following morning he sent his wrecker, with these two experienced employees, to Elizabeth to pick up the truck. On that same morning Mr. Woollard took James B. Long with him to the disabled bean truck and left him there. Mr. Woollard testified, and the record reveals, that he instructed Long to stay with the truck and to sit in it and operate the brakes and steering, so that any time the wrecker stopped or turned a corner he would be able to control the truck and prevent its running into the back of the wrecker or swaying or running all over the highway. It appears that Woollard also instructed Long that Venuti was going to pull the truck to Arnold Chevrolet and they would fix it, and when it was fixed that he (Long) was then to bring the truck back to the farm. These instructions were given to him on the morning of the 29th of November, 1961. Appellee Woollard then left the deceased, Long, in the truck in Elizabeth and returned to his farm, where he issued instructions to another employee, L. J. Cheatham. Long was neither seen again by Mr. Woollard, nor was he given any further instructions by Mr. Woollard. The orders which Mr. Woollard gave Cheatham, who did not see the truck when it was in Elizabeth, were to take Mr. Woollard's pickup truck to Venuti's Service Station and have a flat tire repaired and return to the farm and grease the combines. After Mr. Woollard gave Cheatham these instructions at the farm, he did not see him again before the accident. These instructions were for Cheatham to take the flat tire in the pickup truck to Venuti's station and have it fixed, and after the flat had been fixed Cheatham was to 'get back out to the farm and grease the combines so they could be ready to go to the fields as soon as the trucks got back.' It appears that Cheatham did not carry out the orders of his employer, Woollard, but went with Venuti to Elizabeth where the bean truck had stalled. Cheatham had refused to drive the pickup truck of Woollard's to Elizabeth where the bean truck had stopped and tell Venuti's employees not to come over the railroad tracks at Elizabeth where there is a high fill, but when Mr. Venuti told him to come with him, he got into Mr. Venuti's car and went to Elizabeth to instruct Venuti's two employees, Eddie Griffin and William Fry, not to try to cross the tracks over the fill, but to follow the road into Leland, where they could cross more easily the railroad tracks over a slight fill. It appears that when Cheatham and Venuti reached Elizabeth they found that the truck had already crossed over the high fill at the railroad crossing and was enroute to Leland. Eddie Griffin was driving the wrecker, and William Fry was riding in the wrecker. It appears that the deceased, Long, was riding in the truck being towed with two chains, and was steering it and operating the brakes when necessary.

The record further discloses that when the bean truck arrived at Farmers, Inc. it become necessary to unhook the chains which had been fastened to the bean truck and the wrecker, so the wrecker could get behind the bean truck and push it onto the loading platform of the grain elevator. It appears further that the boom, or hoist, which is on the rear of the truck, which was not used, but which extends upward behind the wrecker, was too high to allow the wrecker to go onto the loading platform, through and under the elevator. This necessitated disengaging the bean truck from the wrecker, so the wrecker might back up or turn around and get behind the bean truck in order to push it onto the loading platform of the grain elevator. It appears also that Venuti gave instructions to all the people who were there about the wrecker and the bean truck. He left William Fry, a Negro, with Mr. Cheatham and Mr. Long. He instructed all of them when their time came to unload the bean truck to get the truck on the scales and then onto the loading platform. Venuti testified he was directing his speech largely to William Fry, his driver of the wrecker, but he did speak to all of the group together, when he advised them to get the truck on the scales and get it untied from the wrecker. He testified further that what he meant was all should help in any way they could to get the truck emptied, so William Fry could take the truck to the Arnold Chevrolet Company for the necessary repairs. Mr. Venuti testified emphatically that Mr. Cheatham was present, William Fry, Mr. Long, and maybe a 'darkey' or two, he was not sure. He testified that he and Long and Fry and others at the elevator decided that they would have to back the wrecker off and would have to get it behind the truck in order to push the truck through. Cheatham and Long both discussed what should be done. Apparently all agreed that the chains should be unhooked and then the wrecker could be backed up or could turn around so it could get behind the bean truck and then push it onto the loading platform of the elevator. The proof shows that the chains could have been loosened by standing to the side of the wrecker and behind the wrecker, but ahead and to the side of the bean truck, and that it was not necessary to stand between them in order to remove the chains. It appears that William Fry did this but that James B. Long stepped in between the wrecker and bean truck and was engaged in disconnecting or unhooking the chains at the time he was injured. Mr. Cheatham, it appears, who had never driven the wrecker before and who was not employed by Mr. Venuti, had gotten into the wrecker and had backed up a little and then had gone forward. Long was seated in the disabled truck at this time, and he got out of the truck and walked up to the wrecker in which Cheatham was sitting and asked him if he wanted him to untie the chain. Cheatham, who was appellan...