McAlister v. McAlister

• Decision Date: 21 February 1966
• Docket Number: No. 43796,43796
• Citation: 254 Miss. 877,183 So.2d 513
• Parties: John Henry McALISTER, by Mattie Mary McAlister, guardian, v. Judd T. McALISTER.
• Court: Mississippi Supreme Court

Page 513

183 So.2d 513

254 Miss. 877

John Henry McALISTER, by Mattie Mary McAlister, guardian, v. Judd T. McALISTER.

No. 43796.

Supreme Court of Mississippi.

Feb. 21, 1966.

Charles H. McCraine, Jr., Houston, W. L. McDonough, New Albany, Scribner & Brewer, Tupelo, for appellant.

Daniel, Coker & Horton, Ruby B. Weeks, Jackson, for appellee.

BRADY, Justice:

This is an appeal from a judgment of the Circuit Court of Tippah County, Mississippi, in favor of the appellee. From this judgment appellant prosecutes this appeal.

The record discloses the following pertinent facts. Appellant instituted suit against appellee for personal injuries sustained on December 4, 1958, at approximately 6:00 A.M., in a collision between a station wagon driven by the appellee, in which the appellant was a passenger, and a farm tractor driven by Dewitt Cook. Both the station wagon of appellee and the farm tractor driven by Dewitt Cook were traveling sough on Highway 15 approximately three miles north of New Albany, Mississippi. Appellee's station wagon struck the farm tractor in the rear and appellant suffered serious injuries to his body and to his brain, the latter leaving him non compos mentis.

At the time of the accident, appellant and appellee, as was their custom, were on their way to work at a lumber yard in New Albany, Mississippi, which was owned by J. H. Tabb and Company, hereinafter called Tabb Company. It is the contention of appellee that he was a partner of Tabb Company, while appellant contends that the appellee was an employee in Tabb Company. The appellant first filed a workmen's compensation claim against Tabb Company, which claim was finally decided by this Court and is reported in J. H. Tabb & Company v. McAlister, 243 Miss. 271, 138 So.2d 285 (1962). In that decision can be found a delineation of the basic facts involved herein. Appellant drew compensation benefits as a result of this accident and claim. Appellee likewise filed a workmen's compensation claim against Tabb Company and drew some compensation benefits.

The facts in the case at bar are prolix and largely controverted, and desirable brevity in treatment proves to be difficult. Appellant claims that appellee was forman, manager and time inspector of Tabb Company at its New Albany lumbar yard. There was only one Tabb Company, and it was owned solely by Mr. J. H. Tabb of Houston, Mississippi.

At the trial of the workmen's compensation claim of appellant, appellee testified that he considered himself an employee of Tabb Company rather than a partner. The record discloses that Tabb Company paid social security taxes on appellee for a number of years and then decided that appellee would pay social security on a self-employed basis. When appellee reached the age of seventy-five and made application for social security benefits, it was then determined that appellee would have to be considered an employee if he was to receive social security benefits, and it became necessary for Tabb Company to make payments for social security on amounts earned by appellee during that time.

In the workmen's compensation hearing the attorney-referee found that James Hugh Tabb was the record owner and sole proprietor of J. H. Tabb and Company and that the appellee was manager of the New Albany, Mississippi, operations. The finding of the attorney-referee was affirmed by a majority vote of the Workmen's Compensation Commission. On appeal therefrom it was affirmed by the Circuit Court of Tippah County, and upon appeal to this Court the order of the attorney-referee was again affirmed in its entirety.

An appeal was taken from the order of the Workmen's Compensation Commission to the Circuit Court of Tippah County. In the circuit court the jury returned a verdict in favor of the appellee.

Six errors are assigned by the appellant and are as follows:

(1) The Circuit Court of Tippah County, Mississippi, erred in overruling Appellant's motion that Appellee be estopped from claiming to be a partner in J. H. Tabb and Company and from introducing testimony to that effect.

(2) The Circuit Court of Tippah County, Mississippi, erred in permitting the Appellee to testify over the timely objection of Appellant.

(3) The Circuit Court of Tippah County, Mississippi, erred in allowing Instruction No. 8 for the Defendant to be given to the jury.

(4) The Circuit Court of Tippah County, Mississippi, erred in overruling Appellant's motion for a directed verdict.

(5) The verdict of the jury was contrary to law and to the overwhelming weight of the evidence.

(6) The verdict of the jury evinced such passion and prejudice on the part of the jury against the Appellant as would shock the conscience of an enlightened court.

The consideration of four of the errors assigned will dispose of this case.

In support of appellant's proposition number one, that the appellee should have been estopped from pleading and introducing testimony to the effect that appellee was a partner in Tabb Company, appellant relies heavily upon the fact that on October 20, 1960, before Attorney-Referee J. T. Hill of the Mississippi Workmen's Compensation Commission, in the matter of John Henry McAlister v. J. H. Tabb & Company and U. S. Fidelity & Guaranty Company, the appellee testified under oath that he considered himself an employee of Tabb Company and not a partner. Appellant cites as authority for this contention the case of Bracey v. Crisler, 151 Miss. 655, 118 So. 138 (1928). In that case one Sam Ella claimed to be the widow of Ned Bracey and entitled to insurance proceeds and the estate, as against the collateral heirs of Bracey. Sam Ella had testified as a witness in a previous suit which was brought against the heirs of Bracey by one Cindy Bracey, who was claiming to be the widow of Bracey. In that previous suit Sam Ella had testified that she had lived with Bracey but had never been married to him. This Court held that because of Sam Ella's testimony in the previous suit, she was estopped from claiming to be the widow of Bracey in her suit.

Appellant contends that the rule in Bracey v. Crisler is controlling in the case at bar and that, since the appellant had by motion urged the trial court to rule that appellee was estopped from claiming to be a partner in Tabb Company, as appellant had set up in his pleadings, the appellee was estopped from claiming to be a partner and the trial court therefore erred in overruling appellant's motion. Appellant also points out that seven of appellee's fourteen instructions granted dealt with and were based upon the defense that appellee was a partner in Tabb Company and therefore relieved of any liability in a tort action by virtue of the fact that workmen's compensation benefits were secured by appellant.

If the contention of appellant is correct, then the trial court should have sustained appellant's motion that appellee be estopped from pleading, and denied appellee the right of introducing evidence to substantiate the claim of appellee that he was a partner in Tabb Company.

In determining whether or not the operation of estoppel was proper as urged by appellant, we cite the case of Day v. McCandless, 167 Miss. 832, 142 So. 486 (1932), which was an injunction proceeding. In that case we said:

Estoppel operates only in favor of one who, in reliance upon an act, representation, or silence of another, so changes his situation as that injury would result if the truth were shown. There must have been a representation or concealment of material facts. The representation must have been made with knowledge of the facts; the party to whom it was made must have been ignorant of the truth of the matter; it must have been made with the intention that the other party should act upon it. The other party must have been induced to act upon it. * * * (167 Miss. at 840, 142 So. at 489.)

The burden of showing that the basic constituents of estoppel are present is upon the party who is urging the operation of estoppel. In the case at bar, the appellant wholly failed to show that the essential elements as set forth in Day v. McCandless are present here. The record does not disclose that appellant's situation was changed by appellee's opinion testimony given in the hearing before the Mississippi Workmen's Compensation Commission. The appellant has failed to show that he relied upon the testimony which was given and that it has operated to his detriment. Appellant's counsel in the trial of the case conceded that the question of determining a partnership is difficult, even for him. In the final determination of appellant's claim, as reflected in J. H. Tabb & Company v. McAlister, 243 Miss. 271, 138 So.2d 285 (1962), he held as follows:

The attorney-referee was of the opinion, however, that it was not necessary for him to determine whether Judd T. McAlister was a partner, a coadventurer, or a working foreman; that transportation was made available to the employees by the employer-defendant through Mr. McAlister; and that it appeared from the authorities that, 'where an employer provides free transportation for his employee, the employee is deemed to be on duty during transportation.' (243 Miss. at 275, 138 So.2d at 286.)

There is ample evidence in the record in the case we have here to support the finding of the attorney-referee that transportation was made available by the employer-defendant through Mr. Judd T. McAlister, the manager of the New Albany plant, for employees of the plant who lived in the Cotton Plant community. * * * Judd T. McAlister, whether a copartner with J. H. Tabb, or an employee, was manager of the plant and the representative of the owner in the operation of the business. (243 Miss. at 277-78, 138 So.2d at 287.)

It is apparent, therefore, that this Court did not adjudicate the status of appellee with J. H. Tabb, insofar as his being a partner or an employee is concerned, and any reliance by appellant on appellee's testimony at the original hearing was purely...