Luckett v. Louisiana Oil Corporation

• Decision Date: 17 December 1934
• Docket Number: 31488
• Citation: 158 So. 199,171 Miss. 570
• Court: Mississippi Supreme Court
• Parties: LUCKETT v. LOUISIANA OIL CORPORATION et al

158 So. 199

171 Miss. 570

LUCKETT v. LOUISIANA OIL CORPORATION et al

No. 31488

Supreme Court of Mississippi

December 17, 1934

Division B

Suggestion Of Error Overruled January 28, 1935.

APPEAL from the circuit court of Madison county HON. J. P ALEXANDER, Judge.

Action by Maggie C. Luckett, administratrix, against the Louisiana Oil Corporation and others. From a judgment, plaintiff appeals. Reversed and remanded.

Reversed and remanded.

Howie & Howie, of Jackson, for appellant.

The defects in this truck, as proven by the testimony, were such that with reasonable care the principal and agent could have known that the truck was not reasonably safe. It is a matter of common knowledge that an automobile truck to be safe must have such a steering wheel as that the driver can guide the truck along the way it is sought to be driven.

This court has held in the case of Gulf Refining Company v. Nation, 145 So. 327, 167 Miss. 315, also in the case of Standard Oil Co. v. Franks, 149 So. 798, which was exactly the same situation as this case, that both the oil company and its resident agent are jointly and severally liable for injuries received by an employee.

Sawmill Construction Co. v. Bright, Bright v. Finkbine Lbr. Co., 77 So. 316, 116 Miss. 491.

It is the duty of the master to furnish his servant with safe tools, appliances and instrumentalities with which to perform his work.

Southern Ry. Co. v. Wiley, 41 So. 511, 88 Miss. 825; Kneals v. Lopez & Dukate, 46 So. 715, 93 Miss. 201; Murray v. Natchez Drug Co., 56 So. 330, 100 Miss. 360; Brooks v. DeSoto Oil Co., 57 So. 229, 100 Miss. 849; St. Louis & S. F. R. Co. v. Guin, 68 So. 78, 109 Miss. 187; Edwards v. Haynes-Walker Lbr. Co., 74 So. 284, 113 Miss. 378; Sea Food Co. v. Alves, 77 So. 857, 117 Miss. 1; Benton v. Finkbine Lbr. Co., 79 So. 346, 118 Miss. 558; Central Lbr. Co. v. Porter, 103 So. 506, 139 Miss. 66; Wilbe Lbr. Co. v. Calhoun, 140 So. 680, 163 Miss. 80; Masonite Corporation v. Lochridge, 140 So. 223, 163 Miss. 364; 39 C. J., sec. 412, pp. 285-6; Miss. Utilities Co. v. Smith, 145 So. 896, 166 Miss. 105; Planters' Oil Mill v. Wiley, 122 So. 365, 154 Miss. 113; Hercules Powder Co. v. Tyrone, 124 So. 475, 155 Miss. 75.

Watkins & Eager, of Jackson, and W. H. and Robert H. Powell, of Canton, for appellees.

The evidence fails to show any connection between the Louisiana Oil Corporation and Luckett.

We have no criticism to offer with respect to cases cited by appellant's counsel, but simply say that all of the cases so cited go to the question of what constitutes the relation of master and servant under a given state of fact, but, of course, none of those cases are sufficient to sustain counsel's contention when applied to the facts found in this record.

The evidence is insufficient to support the allegations of the declaration that the truck was not reasonably safe for use, and furthermore there is no evidence to show that any alleged defect of the truck in any wise proximately caused or contributed to the accident.

Burnside v. Gulf Refining Co., 166 Miss. 460, 470, 148 So. 219; Hercules Powder Company v. Calcote, 161 Miss. 860, 867, 138 So. 583.

Nothing can be deemed the proximate cause of an injury unless, had it not happened, the injury would not have occurred.

Illinois Central Railroad Co. v. Wright, 135 Miss. 444, 100 So. 1; 1 Thompson on Negligence, sec. 56; 22 R. C. L., pp. 110, 113; Gulf Refining Company v. Miller, 150 Miss. 68, 69, 116 So. 295; Hattiesburg Chero-Cola Bottling Co. v. Price, 141 Miss. 892, 106 So. 771.

The mere fact that there has been negligence in the operation of an automobile does not of itself give rise to liability for an injury which the automobile has caused, but in order to fix liability, it must be shown that such negligence was the proximate cause of the injury.

42 C. J., p. 886, par. 587; Goodyear Yellow Pine Co. v. Sumrall, 153 Miss. 350, 120 So. 734.

Argued orally by J. H. Howie, for appellant, and by W. H. Powell, for appellee.

OPINION

Griffith, J.

Appellant's decedent was an experienced and competent truck driver, and had for some time been in the employ of appellees as a driver of one of their oil and gasoline delivery trucks. On the afternoon of the day in question he was on his way towards the delivery of an order of gasoline, traveling on a graveled state highway, and apparently at a moderate rate of speed, when having passed over a hill and started down a slight grade, the truck began to veer or zigzag from side to side of the road, and after having proceeded in this manner for about thirty yards, the truck left the road and turned over, pinning the driver in the wreckage of the cab, and the truck having caught fire, appellant's decedent was burned to death. The evidence discloses no suggestion that the driver was not in perfect health, none that he was intoxicated, and it was shown that there was nothing wrong with the tires.

Appellant as administratrix, instituted suit for the death, alleging that the proximate cause thereof was the negligence of decedent's employers in failing to take reasonable care to furnish decedent with a reasonably safe truck. The truck was seriously out of order in several particulars, according to the allegations of the plaintiff, but the proof was imperfect and insufficient, so far as the present record is concerned, except in...