Mississippi Public Service Co. v. Scott

• Decision Date: 31 May 1937
• Docket Number: 32501
• Citation: 174 So. 573,178 Miss. 859
• Court: Mississippi Supreme Court
• Parties: MISSISSIPPI PUBLIC SERVICE Co. et al. v. SCOTT

174 So. 573

178 Miss. 859

MISSISSIPPI PUBLIC SERVICE Co. et al. v. SCOTT

No. 32501

Supreme Court of Mississippi

May 31, 1937

Division A

1. MASTER AND SERVANT.

Where evidence shows that company charged as principal requires liability insurance of employee, representatives of company may be interrogated to establish relation of principal and agent.

2 TRIAL.

In action against corporation for injuries from truck collision while alleged corporate servant was hauling pipe for line being built for corporation's use, interrogation of corporation's superintendent and general manager as to whether he required liability insurance of workmen connected with pipe line was not prejudicial, where court sustained objection but refused to instruct jury not to consider interrogation.

3 AUTOMOBILES.

In action for injuries to occupant of truck trailer from collision with oncoming truck in evening on narrow bridge conflicting evidence as to whether bridge was one-way bridge as to whether oncoming truck was lighted, and as to other material matters, was for jury.

4. AUTOMOBILES.

Where collision occurred when truck driver was hauling pipe used in line being constructed as emergency work for benefit of corporation, and corporation paid for labor, material, and rental of machinery for construction of line, corporation had burden of proving that truck driver was servant of individual furnishing trucks and drivers and of construction company, as independent contractors.

5. AUTOMOBILES.

Where evidence shows that employee was working on defendant's premises and that work was for benefit of defendant and in his interest, employee is prima facie servant of defendant.

6. AUTOMOBILES.

Evidence that pipe line was constructed for benefit of gas distributing corporation, that corporation paid for labor, materials, and rental of machinery for such construction, and that individual received certain sum for each truck and driver he procured, sustained verdict holding corporation liable for truck driver's negligent operation of truck as corporate "servant," as against contention that truck driver was servant of individual or construction company allegedly having cost-plus contract with corporation, and that such parties were "independent contractors."

HON. THOS. H. JOHNSTON, Judge.

APPEAL from the circuit court of Monroe county HON. THOS. H. JOHNSTON Judge.

Action by T. Jeff Scott against the Mississippi Public Service Company and others. From a judgment against all defendants except Irby Lee Puckett, defendants Ray Hood and the Mississippi Public Service Company appeal. Affirmed.

Affirmed.

Leftwich & Tubb, of Aberdeen, for appellant, Ray Hood.

The trial court committed fatal error in overruling the motion of defendants to declare a mistrial after the subject of liability insurance had been brought to the attention of the jury.

Hoyt v. Davis Mfg. Co., 112 A.D. 755, 98 N.Y.S. 1031; 56 A. L. R. 1469, 1473, 1480, 1479, 1418-19; Burrows v. Likes, 180 Mo.App. 447, 166 S.W. 643; Stehouwer v, Lewis, 249 Mich. 76, 227 N.W. 759, 74 A. L. R. 844; Patterson v. Surples & Miller, 151 Afl. 754, 74 A. L. R. 841; Herrin v. Daly, 80 Miss. 340; Simpson v. Foundation Co, 201 N.Y. 479, 95 N.E. 10, Ann. Cas. 1912B, 321; Akin v, Lee, 206 N.Y. 20, 99 N.E. 85, Ann. Cas. 1914A, 947; Brooke v. Croson, 58 F, (2d) 885,; Stewart v. Brune, 179 F. 350; Stewart v. Newby, 266 F. 287; 8 Couch Cyclopedia of Insurance Law, page 7380, sec. 2254; Standridge v. Martin, 203 Ala. 486, 84 So. 266; Edwards v. Earnest, 206 Ala. 1, 89 So. 729, 22 A. L. R. 1387; Vasquez v. Pettit, 74 Or. 496, Ann. Cas. 1917A, 439; Birch v. Abercrombie, 74 Wash. 486, 50 L. R. A. (N. S.) 59; 22 A. L. R. 1391.

The trial court committed error in sustaining plaintiff's objection to the testimony of the witness Albert Holloway with reference to the defective king pin in plaintiff's truck.

The trial court committed error in overruling defendant's motion for a directed verdict at the close of the trial.

This was not a one-way bridge, it was wide enough for two cars or trucks easily to pass upon it, if driven lawfully and with reasonable care. The testimony of the defendant Hood and his witnesses as a whole sustain this proposition not only by the great weight of the evidence but the evidence is overwhelming to this effect; and conversely it contradicts the testimony of the plaintiff himself and his companions on the hay truck and the two or three other feebly supporting witnesses on this issue. The undisputed physical facts sustain appellants' theory and condemn that of the appellee.

Flowers v. Stringer, 152 Miss. 897, 120 So. 198; Thomas v. Fribelman, 164 Miss. 699, 145 So. 607; M. & O. R. R. Co. v. Johnson, 165 Miss. 397, 141 So. 581; C. & G. R. R. Co. v. Buford, 150 Miss. 832, 116. So. 817; M. & O. R. Co. v. Bennett, 127 Miss. 413, 90 So. 113; Shelton v. Underwood, 174 Miss. 169, 163 So. 828.

The Legislature in this state in chapter 332 of the Laws of 1932 attempted to regulate and did regulate the use of public highways in Mississippi; Section 9 of this statute has particular reference to the use of motor busses and motor trucks and requires that they "shall be operated on the right hand of a middle line of such highway."

In the case of a collision between motor trucks a presumption of the negligence arises against the truck or driver violating the law of the road.

Section 5574, Code of 1930; 3-4 Huddy on Automobiles, sec. 99, pages 163-164, 185; Flynt v. Fondren, 122 Miss. 248, 84 So. 188; Ulmer v. Pistole, 115, Miss. 485, 76 So. 522; Clarke v. Hughes, 134 Miss. 377, 99 So. 6; Crystal v. State, 147 Miss. 40, 112 So. 687; Standard Coffee Co. v. Carr, 171 Miss. 714, 157 So. 685; Reid v. McDevitt, 163 Miss. 226, 140 So. 722.

It is clearly manifest that the violation of the law of the road by the hay truck upon which the plaintiff was riding, the driving of that truck along and across the bridge on the wrong side of the road or bridge, on the west side thereof, and its failure to heed the approaching truck, which they admit they saw for something like two or three hundred yards before it arrived at the bridge, and the fact that the plaintiff and his companions made no effort to stop or to avoid the collision, which might have been avoided by them with the least degree of care, certainly constituted gross negligence and this negligence was the sole proximate cause of this accident and injury.

Thomas J. Tubb, of West Point, for appellant, Mississippi Public Service Company.

The trial court committed error in not sustaining appellant's motion to withdraw the jury and enter a mistrial because appellee propounded to H. G. D'Spain, general manager of the Mississippi Public Service Company, in the presence of the jury, on cross-examination, the following question: "Also, is it not a fact, Mr. D'Spain, that you required liability, public liability, insurance, to cover every man that was engaged in the work ?"

The court has spoken in no uncertain terms on the harmfulness of letting the indemnity or insurance question reach the jury.

Herrin v. Dailey, 80 Miss. 340, 31 So. 790; Yazoo City v. Loggins, 110 So. 833; Avery v. Collins, 157 So. 695; Finkbine Lbr. Co. v. Cnnningham, 101 Miss. 292, 57 So. 916.

The court erred in refusing Instruction No. 18 requested by the appellant, Mississippi Public Service Company, which instructed the jury to find for the Mississippi Public Service Company and in overruling the motion of this appellant for a directed verdict at the close of the appellee's case. A consideration of this proposition involves a study of the law of independent contractor and whether or not under the undisputed facts of this case T. R. Sehumpert was an independent contractor and the master of Ray Hood and, if so, whether or not Hood was a servant of two masters.

The principal business of the gas company was that of distributing natural gas. Its business was not that of constructing a pipe line as it had neither the equipment nor trained labor to construct the pipe line in question. Hood and his truck were employed or hired by Schumpert.

Kisner v. Jackson, 132 So. 90.

The gas company was not interested in the type or kind of truck, what age it was, what its state of repair was or who was to drive it. It was faced with an emergency, out of its regular business, that of constructing a gas line. It was interested in getting it built. A contract to furnish all transportation required was let to Schumpert. Whom Schumpert employed was of no concern to the gas company. It looked to the ultimate results, the transportation of the materials and supplies to the pipe line. It had no authority to hire or fire the truck drivers or the trucks.

This case is controlled by the case of McDonald v. Hall-Neely Lbr. Co., 147 So. 315, 165 Miss. 143; New Orleans, Baton Rouge & Memphis Ry. Co. v. Norwood, 62 Miss. 565; Bear Creek Mill Co. v. Fountain, 94 So. 230, 130 Miss. 436.

Schumpert was not the servant of the gas company but was an independent contractor under the undisputed facts of this case. Hood was the servant of Schumpert and not of the gas company.

The verdict is contrary to the law and overwhelming weight of the evidence as against Mississippi Public Service Company.

Paine & Paine, of Aberdeen, for appellee.

One assignment of error which seems to be relied on by both appellants deals with the action of the court in refusing to enter a mistrial because the attorney for appellee asked the manager of the company with reference to whether or not his company required appellant Hood and other men engaged on the construction of this pipe line to take out public liability insurance. We call the court's attention, at this point, to the fact that while it is true this...