Merchants Co. v. Tracy

• Decision Date: 02 March 1936
• Docket Number: 32121
• Citation: 175 Miss. 49,166 So. 340
• Court: Mississippi Supreme Court
• Parties: MERCHANTS CO. v. TRACY

166 So. 340

175 Miss. 49

MERCHANTS CO. v. TRACY

No. 32121

Supreme Court of Mississippi

March 2, 1936

Division A

1 AUTOMOBILES.

In action by guest for injuries received when automobile in which she was riding struck truck, whether truck belonged to defendant and was being operated by its agent in scope of his employment and in furtherance of defendant's business held for jury.

2 AUTOMOBILES.

In guest's action for injuries received when automobile in which she was riding was struck by truck, evidence as to defendant's ownership of truck, loading of truck at defendant's warehouse, and customary progress upon highway held to support judgment for guest on ground that truck was being operated by agent of owner.

3 AUTOMOBILES.

In action for injuries received in automobile collision, plaintiff must show relation of master and servant as existing between driver of automobile and defendant at time of injuries, directly, and not by presumption.

4. AUTOMOBILES.

Where general relationship of master and servant is shown, rebuttable presumption is raised that servant at time of accident was engaged within scope of his employment and in furtherance of business of master.

5. TRIAL.

In action for injuries received in automobile collision, asking defendant's witness whether he represented insurance company held not so prejudicial as to require mistrial, where jury was admonished to disregard question.

HON. EDGAR M. LANE, Judge.

APPEAL from the circuit court of Simpson county HON. EDGAR M. LANE, Judge.

Action by Gwen Tracy against the Merchants Company. Judgment for plaintiff, and defendant appeals. Affirmed.

Affirmed.

J. B. Sykes, of Mendenhall, and Butler & Snow, of Jackson, for appellant.

We submit that there is no intelligent proof that the truck involved in the accident was the truck of this defendant. To say that the truck involved was the truck of this defendant, is to base such a finding upon mere suspicion. Mere suspicion is not sufficient to make out a case or to sustain a verdict.

I. C. R. R. Co. v. Cathey, 70 Miss. 332; Owens v. R. R. Co., 77 Miss. 142; Jabron v. State, 159 So. 406; Masonite Corp. v. Hill, 154 So. 295; Berryhill v. Nichols, 171 Miss. 769; N. O. & N. E. R. R. Co. v. Holsomback, 168 Miss. 493.

It has been decided by this court so often as to be elemental that in an action by a third person against the principal or the master for the alleged negligent act of the agent or servant, the burden is on the plaintiff to prove that such agent or servant was at the time engaged within the scope of his employment and in furtherance of the master's business.

Canton Cotton Warehouse Co. v. Poole, 78 Miss. 147; Barmore v. R. R. Co., 85 Miss. 426; Hines v. Cole, 123 Miss. 254; Smith v. Dauber, 155 Miss. 695; Shell Petroleum Corp. v. Kennedy, 167 Miss. 305; Davis v. Price, 133 Miss. 236; Indianola Cotton Oil Co. v. Crawley, 121 Miss. 262; Walters v. Stonewall Cotton Mills, 136 Miss. 101; Natchez R. R. v. Boyd, 141 Miss. 593; Alden Mills v. Pendergraft, 141 Miss. 595; Wells v. Robinson Motor Co., 153 Miss. 559; Primos v. Gulfport Laundry Co., 157 Miss. 770; Craft v. Magnolia Stores, 161 Miss. 756; Western Union Tel. Co. v. Stacy, 162 Miss. 286; Woods v. Clements, 113 Miss. 720, 114 Miss. 301; Woods v. Franklin, 151 Miss. 635; Bourgeois v. School Supply Co., 170 Miss. 310.

The existence of the relation of master and servant at the time of the injury must be proven directly and not by way of presumption.

Woods v. Franklin, 151 Miss. 635; Woods v. Clements, 113 Miss. 720.

If it should be contended that the inference may be drawn from the evidence that the truck instead of going to Hattiesburg, as defendant's business required, was actually at the point of the accident and involved therein, then, clearly, under the proof, there had been a departure from defendant's business and the defendant would not be liable in connection therewith.

Bourgeois v. Miss. School Supply Co., 170 Miss. 310.

Verdicts may only be sustained by proof, and imagination, conjecture and suspicion are not sufficient to sustain the same.

I. C. R. R. Co. v. Cathey, 70 Miss. 332; Owens v. R. R. Co., 77 Miss. 142; Jabron v. Stare, 159 So. 406; Masonite Corp. v. Hill, 154 So. 295; Berryhill v. Nichols, 171 Miss. 769; N. O. & N. E. R. R. Co. v. Holsomback, 168 Miss. 493.

The verdict of the jury in favor of the plaintiff and against the defendant is against the overwhelming weight of the evidence.

M. & O. R. R. Co. v. Johnson, 165 Miss. 397; Newton v. Homochitto Lbr. Co., 162 Miss. 20.

Witness Taylor had made an investigation of the ease. He had stated that he had made the investigation in the interest of this defendant. He was asked by plaintiff's counsel if in making the investigation he represented anybody else in the matter, and was then asked if he didn't represent the insurance company.

The defendant's counsel, in the presence of the jury, promptly moved the court to quash the panel and enter a mistrial.

The only way that it was humanly possible for the lower court to have righted the wrong which had been done to the defendant by the deliberate act of plaintiff's counsel was to have sustained the defendant's motion, quashed the panel and ordered a new trial before another jury.

Herrin v. Daly, 80 Miss. 340; Avery v. Collins, 171 Miss. 639; Yazoo City v. Loggins, 145 Miss. 793; Lee County Gin Co. v. Middlebrooks, 161 Miss. 422; Vicksburg lce Co. v Delta Ice Co., 119 So. 824.

J. P. and A. K. Edwards, of Mendenhall, for appellee.

As to whether or not Mr. K. R. Givens, manager for the defendant and a stockholder in said defendant company, admitted to Miss Dean Tracy over the telephone on the night of the wreck that the defendant had a truck out this way when she advised him of the wreck and where it was, was a question of fact to be decided by the jury; then also, the jury found as a matter of fact that he did make the admission, it was a further fact for the determination of the jury in the light of all the testimony offered whether or not this man Givens stated the truth when he stated the defendant company did have a truck out this way that night. And the same is likewise true with reference to the admission testified about by J. W. Tracy.

Witnesses for the defendant testified that at the time of the wreck the defendant only operated one truck at its warehouse at Magee and that this was a blue truck, while the testimony of the witnesses for the plaintiff show positively that a red truck was driven from said warehouse evidently by permission, consent, and direction of said company, defendant, and that, therefore, defendant had two trucks in its operation and employment that night and driven by its agents and employees. This was strictly a question of fact for the jury and was determined by them in favor of the plaintiff, and they were amply warranted in so finding from all the facts and circumstances in the case, therefore, we submit that no peremptory could have been given by the court for the defendant and submit also that the testimony is not overwhelmingly in favor of the defendant, but that it as a whole strongly preponderates in favor of the plaintiff, and we submit that none of the authorities cited by counsel, for the appellant are in point.

Appellant complains and even impunes the motive of counsel for appellee in asking the question complained of, yet it is revealed by the record that counsel for appellee strictly adhered to the ruling of the court along this line.

Vicksburg Ice Co. v. Delta Ice Co., 119 So. 824; Miss. Utilities Co. v. Pearce, 134 So. 164.

The verdict of the jury and judgment of the court below should not be reversed for the reason that there was a clear cut case of fact, even several facts, presented to the jury as to whether or not the defendant caused the injury as charged in the declaration, and we submit that the evidence is sufficient to support the verdict of the jury and that being true this court will not disturb its findings.

Where a new trial has been refused in the court below, and the question arises in the high court as to whether the verdict is sustained by the evidence, the point of inquiry will be, not whether the verdict is clearly right, but is it manifestly wrong; and if not manifestly wrong, the verdict will not be disturbed.

Waul v. Kirkman, 13 S. & M. 599; Prewett v. Coopwood, 30 Miss. 369; Holton v. Adcock, 27 Miss. 758.

It is the peculiar province of a jury, where the evidence is conflicting, to weigh it, and give credit to those facts and circumstances, which, in their judgment, are entitled to the greatest consideration; and it is not for courts, in such cases, to rejudge their judgment.

Kelly v. Miller, 39. Miss. 17.

Where the testimony is conflicting, a verdict which is rendered on instructions fairly presenting the issues and which is not against the clear weight of evidence, will not be disturbed on appeal.

Buckingham v. Walker, 48 Miss. 609; M. C. R. Co. v. Mason, 51 Miss. 234; Cazenueve v. Martinez, 28 So. 788; I. C. R. R. Co. v. Harris, 29 So. 660; Miller v. Ivey, 35 So. 417; Goodwin v. Mitchell, 38 So. 65; A. & V. R. Co. v. Dear, 39 So. 812; Mitchell v. McGee & Alford, 48 So. 234.

Argued orally by Chas. B. Snow, for appellant, and by J. P. Edwards, for appellee.

OPINION

McGowen, J.

On the night of January 2, 1934, between seven-forty-five and eight-thirty o'clock, or about that time Gwen Tracy, while riding in an automobile being driven by her sister, Dean Tracy, was injured by a collision with a commercial truck. The girls were driving south from D'Lo and were within the city limits of Mendenhall when they met a truck going north; the truck did not turn to the right and give them room to pass; it...