Mississippi Utilities Co. v. Smith

• Decision Date: 13 February 1933
• Docket Number: 30418
• Citation: 145 So. 896,166 Miss. 105
• Court: Mississippi Supreme Court
• Parties: MISSISSIPPI UTILITIES CO. v. SMITH

145 So. 896

166 Miss. 105

MISSISSIPPI UTILITIES CO. v. SMITH

No. 30418

Supreme Court of Mississippi

February 13, 1933

Division B

APPEAL from circuit court of Lawrence county, HON. J. Q. LANGSTON Judge.

Suit by I. H. Smith against the Mississippi Utilities Company. Judgment for plaintiff, and defendant appeals. Affirmed.

Affirmed.

Green Green & Jackson, of Jackson, for appellant.

The action here is based on the negligence of the Mississippi Utilities Company in failing to furnish the plaintiff with a Ford truck that would not back-fire. If the Mississippi. Utilities Company was wholly absent from Lawrence county Mississippi, prior to October, 1928, as the proof shows it was; if it had no agents, employees or property there prior to and on the date of the injury as proof demonstrates; if it had no ownership or control of the Ford truck, and other equipment in Lawrence county on the date of the injury, and was not the employer of Smith, then there can be no liability.

It is well settled that negligence proceeds from a failure to perform a duty owing by the negligent to the injured. Negligence can only proceed from a duty imposed by contract, or by the statutes of the state, or by a well defined public policy.

Georgia Casualty Co. v. Cotton Mills Products Co., 159 Miss. 396, 132 So. 73.

A petition alleging that the plaintiff was an employee of the defendant company, and, as such, sustained personal injuries through the defendant's negligence while engaged in work he was employed to do, is not sustained by evidence showing that the relation of master and servant did not exist between these parties and that the plaintiff was really the servant of another company using the, same yard, and was doing the work in question under his employment by that company.

Western Wheel Works v. Stachnich, 102 Ill.App. 420; Postell v. Brunswick & W. R. Co., 112 Ga. 602, 37 S.E. 869; B. & O. R. R. Co. v. Paul, 143 Ind. 23, 28 L.R.A. 216, 40 N.E. 519; Moest v. Buffalo, 110 A.D. 657, 101 N.Y.S. 996, Aff. 193 N.Y. 615, 86 N.E. 1128; Labatt's "Master and Servant," Vol. 1, sec. 27, page 88; Buckner v. Railroad Co., 72 Miss. 873, 18 So. 449.

It was the duty of the employee to establish the relation of employer and employee, first and second to establish the fact that the truck, the dangerous appliance was furnished by such employer and third, that it was at the time on business for the employer and within the scope of the employment.

Wildberger v. Insurance Co., 72 Miss. 338; Mercantile, etc., Ins. Co. v. Hope Ins. Co., 8 Mo.App. 411, 7 A. S. R. 281; Greenwood Ice & Coal Co. v. Insurance Co., 72 Miss. 46; Development Co. v. Fire Ins. Co., 105 Miss. 211; Hirsch Bros. & Co. v. Kennington, 124 So. 350; Vicksburg Gas Co. v. Ferguson, 140 Miss. 543, 106 So. 258; Ford Motor Co. v. Myers, et al., 117 So. 363; Primos v. Gulfport Laundry, etc., Co., 128 So. 507; Isaacs v. Prince & Wilds, 133 Miss. 195, 97 So. 558.

The principles of law which control in this class of cases are quite well settled. A servant in the general employment of one person who is temporarily loaned to another person to do the latter's work becomes for the time being, the servant of the borrower, who is liable for his negligence.

Woods v. Clements, 113 Miss. 720, 74 So. 422; L.R.A. 1917E, 357; Carr v. Burke, 183 A.D. 361, 169 N.Y.S. 981; American Ry. Exp. Co. v. Wright, 128 Miss. 593, 91 So. 342; Davis v. Price, 133 Miss. 236, 97 So. 557; Moore Stave Co. v. Wells, 111 Miss. 796, 72 So. 228; Western Union Tel. Co. v. Stacy, 139 So. 604; Barmore v. Vicksburg, etc., R. Co., 85 Miss. 426, 38 So. 210; Canton Cotton, etc., Co. v. Pool, 78 Miss. 147, 28 So. 823.

If, as shown here, Mr. Smith selected his own method of starting the motor, and there was a less dangerous method known to him, we submit that the defendant was entitled to the instruction peremptorily charging that, as a matter of law, Mr. Smith was guilty of contributory negligence.

Goodyear Yellow Pine Co. et al. v. Clark, 142 So. 443, 445; Finkbine Lumber Co. v. Cunningham, 101 Miss. 292, 57 So. 916; Illinois Central R. R. Co. v. Guess, 74 Miss. 170, 1. So. 50; Parker v. Lumber Co., 54 So. 252; Ikler v. Nix, 114 Miss. 293, 75 So. 120.

An automobile is not a dangerous instrumentality, so as to make the employer liable for the negligence of an employee in the use of said automobile while acting without the scope of his employment.

Vicksburg v. Ferguson case, 140 Miss. 543, 106 So. 258; American Law Institute Restatement of the Law of Agency Tentative Draft Number five, sections 459 and 463.

Wilbourn, Miller & Wilbourn, of Meridian, for appellant.

When appellee was injured, he was the employee of Lawrence County Power & Gin Company, then under the active control and management, not of Mississippi Utilities Company but of J. W. Tynes who at that time was disputing the right of Mississippi Utilities Company, A. R. Williams, W. Calvin Wells, III, and M. L. Culley to be the stockholders and officers of the corporation with the right to manage and direct its affairs.

It is clear that Lawrence County Power & Gin Company was the employer of appellee, and that appellee was the then servant of that corporation.

The court below erred in not directing the jury peremptorily to return a verdict on behalf of appellant.

When Tynes took an employee of Lawrence Power & Gin Company off of his work and sent him out with this truck to do some private work for him, Tynes, on the houses of Tynes' wife, with which Lawrence County Power & Gin Company and Mississippi Utilities Company never at any time had either the remotest interest or connection, and if, in the doing of that work, appellee was injured, we submit, under familiar doctrines, and under the authorities he had no right of recovery against Lawrence County Power & Gin Company, nor Mississippi Utilities Company.

Coast Traction Company v. Faulk, 80 So. 340, 118 Miss. 894; Higgins v. Western Union, 50 N.E. 500, 66 Am. St. Rep. 537.

Mississippi Utilities Company even if on the date of the accident, it actually owned practically all of the stock of Lawrence County Power & Gin Company, clearly did not as such stockholder at the time either control or dominate Lawrence County Power & Gin Company, so as to become liable for any tort Lawrence County Power & Gin Company may have committed, if any, against appellee.

Boothe v. Hallwell, 3 K. B. 252.

The ownership of the stock of Lawrence County Power & Gin Company by Mississippi Utilities Company did not make it liable for a tort of Lawrence County Power & Gin Company under the law as applied to the facts. Pagel, Norton & Company, Inc., v. Harmon Paper Company, 258 N.Y.S. 168.

H. J. Patterson and E. B. Patterson, both of Monticello, and Hall & Hall, of Columbia, for appellee.

The question whether the right defendant was sued is an issue of fact to be determined by the jury, like any other issue of fact. Whether the right defendant was sued in this case depends on the question whether there existed at the time of the injury of the deceased the relationship of master and servant between appellant and deceased. Any competent and relevant evidence tending to prove or disprove the relationship in question was admissible.

G. M. & N. Railroad v. Graham, 117 So. 881, 153 Miss. 72; Hamilton Brothers Company v. Weeks, 124 So. 798, 155 Miss. 754; Edward Hines Lumber Company v. Dickinson, 125 So. 93, 155 Miss. 674.

The whole effect of the notice under the general issue was that the appellant there admitted that it had employed appellee, admitted that it owned and used the truck which injured him, and admitted that it owned the plant where he was working. After having admitted these things, we submit that the appellee was not required to prove those things. Appellant certainly cannot adopt a position in its pleadings and then adopt a contrary position upon the trial and upon appeal, as it seeks to do in this case.

If a fact is admitted in the pleadings on which the case is tried, it is in general, assumed without other evidence to be conclusively established for the purposes of the trial.

Ogden v. Bosse, 86 Tex. 344, 24 S.W. 798; Nugent v. Powell, 62 A. S. R. 17; First Nat'l Bank v. Ragsdale, 81 A. S. R. 332; Miles Planting Co. v. Ware, 78 So. 104; M. L. Virden Lbr. Co. v. Sherrod, 139 So. 813; Smith v. Kaufman, 14 So. 111; Anderson v. Anderson, 112 So. 603, 147 Miss. 515; Babst v. Hartz, 108 So. 871; Mobile Trans. Co. v. Mobile, 44 So. 976; Wilcoxson v. Burton, 87 Am. Dec. 66; Knoop v. Kelsey, 22 A. S. R. 777; La Follett v. Mitchell, 95 A. S. R. 780, 69 P. 916; Aultman v. Gunderson, 55 A. S. R. 837.

Pleading must be strictly construed against pleader.

Bradley v. City of Jackson, 119 So. 811, 153 Miss. 136; Hart v. Ins. Co., 122 So. 471, 154 Miss 00; Gulfport B. & L. Assoc. v. City of Gulfport, 124 So. 658, 155 Miss. 498; Westbrook v. McCarty, 134 So. 193; White v. Williams, 124 So. 64, 154 Miss. 897; Natchez v. Minor, 9 S. & M. 544, 48 Am. Dec. 727; A. G. S. R. R. v. Cardwell, 55 So. 185; Nunnally Co. v. Bromberg & Co., 115 So. 230; Capitol City Bank v. Hilson, 51 So. 853; Johnson v. Stone, 13 So. 858, 69 Miss. 826.

Where a corporation acquires all the assets of another corporation, it is liable for its obligations.

Meridian Lt. & Ry. Co. v. Cator, 60 So. 657, 103 So. 616; Morrison v. American Snuff Co., 30 So. 723, 79 Miss. 330.

And suit may be maintained against either corporation.

Wolff v. Shreveport Gas, Elect. Lt. & P. Co., 70 So. 789.

To the general principle that an employee by continuing in the service with knowledge of its perils is debarred from recovering for injuries resulting therefrom, there has come into general recognition an exception known as the doctrine of notice and promise to...