Lovett Motor Co. v. Walley

• Decision Date: 27 April 1953
• Docket Number: No. 38675,38675
• Citation: 64 So.2d 370,217 Miss. 384
• Parties: LOVETT MOTOR CO. et al. v. WALLEY.
• Court: Mississippi Supreme Court

Page 370

64 So.2d 370

217 Miss. 384

LOVETT MOTOR CO. et al. v. WALLEY.

No. 38675.

Supreme Court of Mississippi.

April 27, 1953.

E. C. Fishel and M. M. Roberts, Hattiesburg, Richard C. Bradley, New Augusta, for appellants.

Melvin, Melvin & Melvin, Laurel, for appellee.

LOTTERHOS, Justice.

Appellee, Hubert G. Walley, brought this suit in the Circuit Court of Perry County against Arthur K. Lovett and Mary Lillian Lovett, composing the partnership of Lovett Motor Company, doing business in Richton, and against Bodie D. Palmer, for damages resulting from a collision between an automobile driven by said Palmer and an automobile driven by appellee, in which collision appellee suffered serious and extensive personal injuries.

The collision occurred about 5 or 5:30 o'clock on Sunday afternoon, July 8, 1951, on Highway 15 about seven or eight miles north of Richton in Perry County. Appellee, accompanied by his wife, was driving north on said highway. The defendant Palmer, employed as a car salesman by Lovett Motor Company, and being the sole occupant of an automobile belonging to Lovett Motor Company, was driving south on said highway.

The declaration was in two counts. The first count charged that Bodie D. Palmer, as the servant and employee of Lovett Motor Company, acting within the scope of his employment, was guilty of negligence causing the injuries, in that he was operating the automobile in which he was riding at a highly dangerous, reckless, and excessive rate of speed and on the wrong side of the road. The second count charged that the Lovetts were guilty of negligence causing the injuries in that they entrusted the automobile to the said Palmer, knowing, or under such circumstances as that they should have known, that he was a reckless driver because of his habits of drink, and was likely to drive the automobile while under the influence of intoxicating liquor, resulting in injuries to others and that on the occasion in question he was driving said automobile while under the influence of intoxicating liquor and negligently collided with the automobile of the appellee.

The defendants answered, denying the charges of negligence, and the defendants Arthur K. Lovett and Mary Lillian Lovett pleaded as an affirmative defense that at the time of the collision said Bodie D. Palmer was not acting within the scope of his employment, and was not on his masters' business, but on a private or personal mission of his own, and further that they neither knew nor had reason to believe that he was addicted to the habitual use of intoxicating liquor, and was likely to drive the automobile while under the influence of intoxicating liquor, but that on the contrary, he was a competent and capable driver and known to them to be such.

The issues thus presented were, first, whether the collision was the result of Palmer's negligence; second, whether at the time of the collision Palmer was acting within the scope of his employment and on his masters' business; and, third, whether the injuries resulted from the negligence of the Lovetts, as Lovett Motor Company, in entrusting the automobile to said Palmer when they knew or should have known that he was a reckless driver due to his habits of drink, and was likely to drive the automobile while under the influence of intoxicating liquor to the injury of others.

At the conclusion of the evidence, peremptory instructions were requested by each of the defendants and were refused, and the case was submitted to the jury under instructions which embodied the aforesaid issues and resulted in a verdict and judgment for the plaintiff in the sum of $4,000, from which the defendants appealed, and the plaintiff prosecuted a cross-appeal upon the ground of claimed inadequacy in the amount of the verdict.

It is not seriously urged on this appeal that the evidence was insufficient to create an issue of fact for the jury on the question of the negligence vel non of the defendant Palmer. Each driver contended that the other was driving on the wrong side of the road and thus caused the collision, and wholly conflicting evidence was introduced in support of these respective contentions. The jury resolved this conflict in the evidence in favor of the plaintiff, and there is ample evidence to support the jury's verdict on this issue.

It is contended by appellants, however, that on the occasion of the collision said Palmer was on a private or personal mission of his own and was not acting within the scope of his employment, and that, therefore, no liability for his negligent acts can be imposed upon Lovett Motor Company. The principles applicable to this contention were early announced by this Court in the case of Barmore v. Vicksburg, S. & P. Ry. Co., 85 Miss. 426, 38 So. 210, 70 L.R.A. 627, as follows:

1. Where the relationship of master and servant is shown to exist, it devolves upon the master, in order to escape liability for the acts of the servant, to prove that the servant had abandoned the duties of his employment and had gone about some purpose of his own, in which the master's business was not concerned and which was not incident to the employment for which the servant was hired.

2. The general rule is that the master is excused from liability for the tortious act of the servant when committed outside the scope of the servant's employment, and this rule governs in all cases where the servant abandons his master's business and engages in some purpose of his own.

3. In determining whether a particular act is committed by a servant within the scope of his employment, the decisive question is not whether the servant was acting in accordance with the instructions of the master but whether he was at the time doing any act in furtherance of his master's business.

4. The question as to whether or not the servant in the particular instance was acting within the scope of his employment is a question of law for the court if there is no conflict in the facts, but if there is conflict in the facts then it is a question to be submitted to the jury.

These principles have been consistently applied by this Court. Shell Petroleum Corp. v. Kennedy, 167 Miss. 305, 141 So. 335; Bourgeois v. Mississippi School Supply Company, 170 Miss. 310, 155 So. 209; Stovall v. Jepsen, 195 Miss. 115, 13 So.2d 229; Kramer Service Inc., v. Robinson, 201 Miss. 805, 29 So.2d 456; Mississippi Power and Light Company v. Lembo, 202 Miss. 532, 32 So.2d 573.

Applying these well established principles to the case at bar, we have no difficulty in concluding that on the occasion of the collision said Palmer was pursuing a private or personal mission of his own and was not acting within the scope of his employment and in furtherance of his masters' business. There is no material dispute in the evidence on this issue. The uncontradicted proof is that said Palmer was employed as a salesman by Lovett Motor Company; that in the performance of his duties he was permitted to drive one of the automobiles of Lovett Motor Company, and authorized to use it while in the performance of his duties as salesman; and that the place of business of Lovett Motor Company regularly closed at six o'clock in the evening and if it happened that Palmer, while at work for his employers, was delayed in returning the automobile to the place of business before closing time, he was authorized to drive the automobile to his home and keep it there overnight and return it to the place of business the next morning. He had no authority whatever to use the automobile on a private or personal mission of his own. On Saturday night, prior to the collision, he left Richton about 9:30 o'clock and drove to Jones County where he visited friends whom he had visited on previous occasions. The collision occurred when he was returning home the next afternoon. His trip was a personal mission and had no connection whatever with the business of his employers. His employers had no knowledge that he was using the automobile on this occasion and had no knowledge that he had ever on any other occasion used it on personal missions. Palmer himself testified that during the four and a half or five years that he had worked for Lovett Motor Company he had used an automobile of the company on personal missions some three or four times but without the knowledge or consent of his employers. There is no testimony that materially contradicts this evidence.

It is argued, however, that the testimony of the witness Ollie Palmer is sufficient to show that appellant Bodie D. Palmer was acting in furtherance of the business of his employers on the occasion in question. It appeared from the testimony of this witness that said appellant stopped by the Blodgett Drive-In on the afternoon of the day on which the collision later occurred; that said Ollie Palmer, who operated the Blodgett Drive-In, had on a previous occasion discussed both with Bodie D. Palmer and appellant Arthur K. Lovett the matter of trading for an automobile; and that on this occasion, Bodie D. Palmer purchased some Coca Colas at the Blodgett Drive-In and there saw Ollie Palmer, and remarked to him that he thought he had a car which Ollie Palmer wanted, and that said Ollie Palmer might come by at any time and look at it. Nothing more was said or mentioned relative to a trade or sale of cars. We do not think that this evidence is sufficient to convert the personal mission on which Bodie D. Palmer was then engaged into a mission in furtherance of the business of said Bodie D. Palmer's employers. The remark of Bodie D. Palmer to Ollie Palmer was nothing more than a passing remark or a collateral incident. S. & W. Construction Co. v. Bugge, 194 Miss. 822, 13 So.2d 645, 146 A.L.R. 1190. The testimony of the witness Ollie Palmer is insufficient in our opinion to constitute a contradiction of the positive testimony that on the occasion in question Bodie D. Palmer was on a personal mission of his own and was not acting within...