Rice-Stix Dry Goods Co. v. Self

• Decision Date: 30 September 1935
• Parties: RICE-STIX DRY GOODS CO. v. SELF.
• Court: Tennessee Court of Appeals

101 S.W.2d 132

20 Tenn.App. 498

RICE-STIX DRY GOODS CO. v. SELF.

Court of Appeals of Tennessee, Western Section.

September 30, 1935

Certiorari Denied Jan. 16, 1937.

Appeal in Error from Circuit Court, Shelby County; J. P. M. Hamner Judge.

Action by C. P. Self against Rice-Stix Dry Goods Company. Judgment for plaintiff, and both parties appeal in error.

Affirmed.

Lowell W. Taylor, of Memphis, and Louis Kawin, of St. Louis, Mo for plaintiff in error.

Julian C. Wilson, Walter P. Armstrong, Luther H. Graves, and Thos A. McEachern, Jr., all of Memphis, for defendant in error.

KETCHUM Judge.

In this case the plaintiff, Self, sued the defendant Rice-Stix Dry Goods Company, of St. Louis, for damages for personal injuries sustained in an automobile accident. The accident occurred near Hagan, Ga., on September 12, 1930. The plaintiff was at the time employed by the Crescent China Company, manufacturers of chinaware, of Alliance, Ohio, under an arrangement previously made between that company and the defendant; the plaintiff was accompanying one I. H. Oppenheim, a regular salesman of the defendant, on his itinerary in the state of Georgia, as a specialty salesman selling china manufactured by the Crescent China Company. The plaintiff and Oppenheim were riding in a new Chevrolet sedan owned by the defendant and operated by Oppenheim.

The declaration alleged that the plaintiff was an employee of the China Company, that under the arrangement referred to it was the duty of the defendant to furnish him his transportation; that he had no control or direction over the operation of said automobile; that he occupied the status of a passenger for hire in said automobile, and that under the common law of the state of Georgia, the defendant owed him the exercise of ordinary care in the operation of said automobile; but that the defendant's agent, Oppenheim, carelessly and negligently operated said automobile at a rapid rate of speed across the highway from the right side to the left and off the road entirely, and against a telephone post, and into a bank, causing it to turn over and injure the plaintiff; more specifically, it was alleged that Oppenheim went to sleep and lost control of the car and ran it off of the road and into the telephone post and into the bank, causing plaintiff serious injuries set out in the declaration.

The defendant filed pleas of "not guilty" and contributory negligence; and (3) that under the law of Georgia where two persons are engaged in a joint enterprise or venture for their common benefit, the negligence of one of such persons is imputable to the other, and will bar a recovery of such other in an action to recover for such negligence; and (4) that under the law of Georgia the failure of a guest riding in an automobile to exercise ordinary care for his own safety, if by the exercise of ordinary care he could have avoided the consequences of the defendant's negligence, will bar his recovery.

The plaintiff, for replication, joined issue on the defendant's third plea, and says that it is not the law of Georgia that where two persons are engaged in a joint enterprise or venture for their common benefit, the negligence of one of such persons is imputable to the other, and will bar a recovery of the other in an action to recover because of the other's negligence; but that the law of such state is that there must be a joint right to control the vehicle in which said persons were traveling; and that in this case there was no such joint right of control, and no joint venture or enterprise of any kind. For replication to the fourth plea the plaintiff pleads section 4426 of the Civil Code of Georgia, which is as follows:

" Diligence of plaintiff. If the plaintiff by ordinary care could have avoided the consequences to himself caused by the defendant's negligence, he is not entitled to recover. But in other cases the defendant is not relieved, although the plaintiff may in some way have contributed to the injury sustained." It was then averred in said replication that the plaintiff could not by the exercise of ordinary care have avoided the consequences to himself of the defendant's negligence, and therefore under the terms of said statute the defendant was not entitled to rely upon its plea of contributory negligence; and that as construed by the highest appellate courts of Georgia, under said statute the doctrine of comparative negligence prevailed, and that under this rule if the negligence of the plaintiff, even though proximately contributory, is less than that of the defendant, the plaintiff can recover; and the plaintiff denied that he was guilty of any contributory negligence; or, if he was guilty of any, it was less in degree than that of the defendant, and under the law of Georgia it did not bar his right to recover.

Under the issues raised by these pleadings the cause was heard before the court and a jury, and resulted in a verdict and judgment in favor of the plaintiff for $40,000. A motion for a new trial was seasonably filed, and on the hearing of this motion, the court "being of opinion that the verdict of the jury is excessive" suggested a remittitur of $15,000 as a condition to the denial of the motion for a new trial, and overruled all the other grounds of said motion. The plaintiff accepted this remittitur under protest, and judgment was then entered allowing said remittitur of $15,000, and entering judgment in favor of the plaintiff for $25,000. From this judgment both the parties have appealed in error to this court, the plaintiff appealing from so much thereof as reduced his judgment from $40,000 to $25,000.

The defendant has filed 25 assignments of error in this court; but the principal issues have been raised by the first assignment based upon the action of the court in overruling the defendant's motion for a directed verdict in its favor made at the close of all the proof. This was alleged to be error because

"(a) The undisputed proof showed that the plaintiff and I. H. Oppenheim were fellow servants of the defendant at the time of the accident--the undisputed proof being that the plaintiff had been lent to the defendant, and for the period in question had become and was its servant;

"(b) The undisputed proof showed that the defendant was guilty of no negligence and that the plaintiff's injuries were received as the result of unavoidable accident;

"(c) The plaintiff's testimony and all the proof showed that the plaintiff had acquiesced in the speed at which the car was running every day for two whole weeks, and it is not claimed that he protested at the speed at which the car was being driven at the time of the accident;

"(d) There is no evidence on which to base the verdict."

In the consideration of paragraph (a) of this assignment it will be assumed that Oppenheim was guilty of negligence in the operation of the automobile, and that his negligence will be imputed to the defendant, unless the plaintiff and Oppenheim were fellow servants. It is the contention of the defendant that although the plaintiff was regularly employed by the China Company, he was loaned to the defendant for the purposes of this trip.

The evidence on the subject is undisputed, and the material facts may be stated as follows:

The plaintiff was regularly employed by the Crescent China Company, manufacturers of china, as a salesman. Some time before this accident occurred an arrangement was made between the China Company and the Rice-Stix Dry Goods Company whereby the plaintiff should accompany the defendant's salesmen as a specialty salesman selling the China Company's goods. The orders for chinaware so sold by the plaintiff were taken through the defendant, who received a profit on the sales. The sales were made to the defendant's customers, and the defendant passed upon the credit of the customers and accepted or rejected the orders as it saw fit. If it accepted the orders the shipment was made from the Crescent China Company's factory to the Rice-Stix customer, and the goods were then charged by the China Company to the defendant until after the plaintiff had sold it and defendant had accepted the orders. The Crescent China Company paid the plaintiff a commission of 10 per cent. of the amount of the gross sales of chinaware so made as his compensation, and paid the Rice-Stix salesman a like commission. Under the arrangement made between the defendant and the China Company the defendant was to furnish the plaintiff his transportation. He selected his own hotels and the China Company paid his hotel bills and other traveling expenses.

The plaintiff had traveled with some ten or twelve of the defendant's salesmen under this arrangement, traveling from two to three weeks with each one. During the month of August, the Rice-Stix salesmen were called in to St. Louis for the "market," when the merchants were accustomed to come to St. Louis to purchase their fall stocks. The defendant had samples of the China Company's ware on display in its building at that time, and the plaintiff was there to sell the China Company's goods under the same arrangement.

In September, 1930, the plaintiff accompanied the defendant's salesman, I. H. Oppenheim, on his itinerary in the state of Georgia. They traveled in a new Chevrolet sedan owned by the defendant and operated by Oppenheim. They carried their samples and their personal baggage on the back seat. The plaintiff's samples belonged to the Crescent China Company, and weighed about 50 pounds. Oppenheim's samples belonged to the defendant. Oppenheim determined the territory to be covered and the merchants to be solicited.

Under these facts the plaintiff was not a fellow servant of Oppenheim. He was working in the interest of the China Company selling its...