Mississippi Power & Light Co. v. Laney

• Decision Date: 03 June 1963
• Docket Number: No. 42580,42580
• Citation: 154 So.2d 128,247 Miss. 71
• Parties: MISSISSIPPI POWER & LIGHT COMPANY v. Frances LANEY.
• Court: Mississippi Supreme Court

Page 128

154 So.2d 128

247 Miss. 71

MISSISSIPPI POWER & LIGHT COMPANY v. Frances LANEY.

No. 42580.

Supreme Court of Mississippi.

June 3, 1963.

Green, Green & Cheney, Jackson, Keady, Campbell & DeLong, Greenville, for appellant.

Philip Mansour, Greenville, for appellee.

KYLE, Justice.

Mrs. Frances Laney, plaintiff in the court below, recovered a judgment against Fred Rucker and Mississippi Power & Light Company for damages for personal injuries alleged to have been sustained by her as a result of an automobile accident which occurred on June 9, 1961, when the 1950 Ford sedan automobile which was being driven by Fred Rucker, an employee of the defendant Power Company, collided with a 1958 Volkswagen automobile which was being driven by the plaintiff.

The declaration alleged that the plaintiff was driving south on South Main Street in the City of Greenville, which was a main thoroughfare, and as she entered the intersection of South Main Street and Robertshaw Street, the defendant Fred Rucker, who was approaching the intersection from the east, ran a 'stop sign' at the intersection and crashed into the left side of the plaintiff's vehicle. The plaintiff alleged that the defendant Rucker was negligent in failing to bring his automobile to a stop at the intersection in obedience to the stop sign maintained at the intersection; and in that he failed to maintain a proper lookout, that he failed to yield the right of way to traffic moving along South Main Street, including the plaintiff's vehicle, that he failed to have his car under proper control upon entering the intersection, and that he entered the intersection at a time after the plaintiff had already entered the intersection, or at a time when the plaintiff was so close to the intersection as to constitute an immediate hazard, all of which was a direct and proximate cause of the collision and the injuries suffered by the plaintiff. The plaintiff further alleged that she was 27 years of age, and that she had three minor children all of whom were in the car at the time of the accident; that she suffered serious and permament personal injuries including a severe and permament brain injury; injury to the cervical vertebra, together with injuries to the left shoulder and ribs; that she sustained a severe blow to her head causing vasomotor cerebral instability and vasomotor headeaches; that she had been treated by numerous physicians and surgeons since the date of the accident, and had been hospitalized and treated at hospitals in Greenville, Mississippi, Jackson, Mississippi, and New Orleans, Louisiana; and that she was permanently and totally disabled.

The declaration was filed and summons was issued for the defendants, Fred Rucker and Mississippi Power & Light Company, on October 25, 1961. Fred Rucker died on November 13, 1961, and his son, Fred T. Rucker, III, qualified as administrator of his estate, and letters of administration were issued to him on November 24, 1961.

Fred T. Rucker, III, as administrator, filed an answer to the plaintiff's declaration in which he admitted that the collision occurred at the intersection of South Main Street and Robertshaw Street as alleged in the plaintiff's declaration. The administrator, however, denied each separate charge of negligence on the part of his decedent, and in his answer averred that the sole proximate cause of the collision was the negligence of the plaintiff. The administrator averred that the plaintiff was negligent in that she was driving her automobile at an excessive rate of speed in the left hand or north-bound traffic lane on South Main Street, and in that she failed to maintain a proper lookout and did not have her automobile under proper control. The administrator also averred in his answer that the decedent prior to the collision stopped his automobile at the stop sign at the intersection of Robertshaw and South Main Street, and proceeded at a lawful rate of speed and with due care across South Main Street, and that the negligence of the plaintiff in proceeding at an undiminished speed into the intersection, and in the left hand or north-bound traffic lane of South Main Street, at a time when the automobile being driven by the decedent had already entered the intersection was the sole proximate cause of the collision.

The defendant Mississippi Power & Light Company filed a separate answer in which the defendant specifically denied that the decedent Fred Rucker was in and about the business of his employer Mississippi Power & Light Company, and was in the scope of his employment for the Power Company at the time and place of the alleged injuries. The defendant averred that the decedent was acting personally and completely outside the scope of his employment at the time of the alleged accident; that the vehicle that the decedent was driving was the personal automobile of the decedent, and was not being used in and about the business of the Company. The defendant specifically denied the several acts of negligence charged against Fred Rucker in the plaintiff's declaration. The defendant averred upon information and belief that the plaintiff's negligence was the proximate or a contributing cause of the accident.

The case was tried at the June 1962 term of the court. At the conclusion of the plaintiff's evidence Mississippi Power & Light Company moved for a directed verdict in its favor. The motion was overruled. Again, at the conclusion of all of the evidence, the Power Company moved for a directed verdict in its favor, and that motion was overruled. The jury returned a verdict against both defendants in the sum of $22,000. Mississippi Power & Light Company thereupon filed a motion for judgment notwithstanding the verdict. The motion was overruled, and judgment was entered in favor of the plaintiff against both defendants for the amount fixed by the verdict of the jury. From that judgment the defendant, Mississippi Power & Light Company, has prosecuted this appeal. The estate of Fred Rucker, deceased, has not appealed from the judgment entered against it.

The only points assigned and argued by the appellant's attorneys as grounds for reversal of the judgment of the lower court are: (1) That the court erred in failing to direct a verdict for the appellant and in overruling the appellant's motions therefor, and in refusing appellant's requested peremptory instruction for a directed verdict; and (2) that the court erred in overruling the appellant's motion for a judgment notwithstanding the verdict. As stated by the appellant's attorneys in their brief, the only issues before the Court on this appeal are, whether the appellee, plaintiff in the court below, met the burden of proving that Fred Rucker at the time of the accident complained of was guilty of negligence, and whether he was acting within the course and scope of his employment as an agent or servant of the Power Company. It is the appellant's contention that the appellee wholly failed to meet this burden of proof, and that the trial court erroneously refused to grant the appellant's request for a directed verdict.

There is ample evidence in the record to support the jury's finding that Rucker was guilty of negligence in the operation of his vehicle at the time of the accident, and that Rucker's negligence was the proximate cause of the accident. The evidence also shows that the plaintiff's injuries were both serious and permanent. But we think that the appellee failed to meet the burden of proving that Rucker, at the time of the accident, was acting within the course and scope of his employment as an agent or servant of the Power Company.

The evidence relating to Rucker's employment shows without dispute that Rucker was a civil engineer and a regular employee of the Power Company, and that he had a fixed place among the office personnel of the Company's engineering department at Greenville. He was classified as an Engineer 'B', and he worked under the general supervision of J. W. Hall, the Company's division engineer. He had fixed hours of work, from 8 A.M. to 5 P.M. from Monday through Friday, with one hour off for lunch from approximately 12 noon to approximately 1 P.M. Like other employees of the Company he was subject to call at any time in an emergency. He spent much of his time in the field; and he had wide discretion in his work. He was not required to report to anyone or sign in when he came to work, and was not required to report to anyone when he left the office and went out into the field. He was, in fact, the No. 2 man in the engineering department. J. W. Hall, the division engineer, testified that, when a request was received for electric service, it was assigned to Rucker or a junior engineer, and the one to whom the work was assigned would go to the site, look the job over to determine what would be necessary, and then come back and prepare a sketch, bill of materials, description of the work to be done by the line crew and an estimate of the cost. The paper work was then submitted to Hall and the division manager for their approval. Rucker had nothing to do with the construction after he made up 'the job', that is to say, completed the paper work. Rucker had an office in the Power Company's Service Center at Greenville. He furnished his own automobile for travel on Company business, and was reluctant to use a Company-owned vehicle. It was stipulated that the vehicle which Rucker was driving at the time of the accident was Rucker's own automobile.

The evidence relating to the accident complained of in the plaintiff's declaration consisted mainly of the testimony of Dr. Nino Bologna and Billy Hicks, a member of the police department of the City of Greenville, who investigated the accident immediately after it occurred. Dr. Bologna testified that he left his home to go to his office after the noon meal and was driving north on Main Street which extended toward Highway No. 82; and when he reached a point...