Robertson v. Stroup, A-C
| Citation | 254 Miss. 118,180 So.2d 617 |
| Decision Date | 06 December 1965 |
| Docket Number | No. 43611,A-C,43611 |
| Parties | R. H. ROBERTSON v. W. L. STROUP, Jr., Individually and W. L. Stroup, Jr., d/b/a Hertz Rent-ar. |
| Court | United States State Supreme Court of Mississippi |
Schweizer & Harvey, Columbus, for appellant.
Mitchell, McNutt & Bush, Tupelo, for appellee.
This is an appeal from a judgment of the Circuit Court of Lee County, wherein the court sustained a plea in bar and a plea in abatement to the declaration filed by appellant, R. H. Robertson, against appellee, W. L. Stroup, Jr.
The declaration alleged that appellant, hereinafter referred to as Robertson, suffered serious and permanent injuries in an automobile accident caused by the negligence of Ray Stokes, servant and employee of appellee, hereinafter referred to as Stroup. It was alleged that Stokes was at the time of the accident in and about his master's business, and that Stroup was liable for said injuries. Stroup answered the declaration and denied liability. He incorporated in his answer a plea in bar and a plea in abatement, and requested that the plea be heared prior to the trial of the case on its merits. The plea in bar alleged that Robertson was at the time of the injury an employee of Stroup's agent, Bill James, d/b/a James Gulf Service Station; that James was the agent of Stroup in the operation of his rental car business, and at the time of the injury Robertson was an employee of James and engaged in the furtherance of the rental car business; that Robertson was paid workmen's compensation benefits by James for the injury growing out of and in the course of his employment, and for this reason he was estopped and barred from maintaining the suit against Stroup. The effect of the plea is to contend that at the time of the injury Robertson was within the meaning of the Mississippi Workmen's Compensation Act an employee of Stroup, and as a result of his injury had been paid workmen's compensation, and therefore Stroup was not 'any other party' within the terms of the act.
A hearing was had on the plea in bar and plea in abatement prior to the trial of the case on its merits. The pleas were heard before the trial judge without the intervention of a jury. The trial judge sustained the plea in bar and the plea in abatement. An order was entered dismissing the suit, and from this judgment this appeal is prosecuted.
The facts show that Stroup had obtained a license from Hertz Rent-A-Car Company to operate a rental car business in Tupelo, Oxford and Columbus, Mississippi. Stroup employed James to operate the rental car business in Columbus, and as compensation for his services James was paid ten percent of the gross receipts. Stroup furnished the cars used in the business, and as a part of their oral agreement these cars were serviced by James at his filling station, and for these services James was paid in addition to the commission. James was the operator of a filling station at the time he was employed by Stroup to manage the rental car business. In the operation of his filling station, James had four employees including Robertson. These employees performed services at the filling station and also performed services in the rental car business. They were hired by James and paid by him. Under the arrangement with Stroup, James kept the records for the rental car business and rented cars at his filling station. He also maintained an office at the Columbus airport, where cars were kept and rented. James maintained a telephone at the filling station for the rental car business with a direct line to the airport office. Ray Stokes worked at the airport. He performed no services in connection with the filling station. He was employed by James on behalf of Stroup and was paid by Stroup. His work was performed under the supervision of James. Robertson worked at night, and during the course of his work he at times rented cars, checked in cars that had been rented by someone else, and at times would deliver a car to the airport when one was needed. On the night he was injured he was directed by James to drive a rental car to the airport and deliver it to Stokes. Stokes was to return him to the filling station in a car kept at the airport for this purpose. Instead of returning in the car belonging to Stroup, Stokes drove his own car, and on the way back to the filling station he lost control of his car and had the accident in which Robertson was injured.
James carried workmen's compensation insurance for his employees, and he reported the injuries to his carrier. Thereafter, Robertson was paid a lump sum settlement in the sum of $4,156 as settlement of his workmen's compensation claim for his injuries. He then filed this suit against Stroup.
The principal question that we must determine in this case is whether Robertson was at the time of his injury the employee of Stroup within the meaning of the Mississippi Workmen's Compensation Act, and if so, would the payment of workmen's compensation by Stroup's agent, James, bar him from maintaining a suit against Stroup for the same injury. The pertinent statutes involved are Mississippi Code Annotated sections 6998-05 and 6998-36 (1952). Section 6998-05 provides in part:
The liability of an employer to pay compensation shall be exclusive and in place of all other liability of such employer to the employee, his legal representative, husband or wife, parents, dependents, next-of-kin, and anyone otherwise entitled to recover damages at common law or otherwise from such employer on account of such injury or death, except that if an employer fails to secure payment of compensation as required by this act, an injured employee, or his legal representative in case death results from the injury, may elect to claim compensation under this act, or to maintain an action at law for damages on account of such injury or death.
Section 6998-36 provides in part:
The acceptance of compensation benefits from or the making of a claim for compensation against an employer or insurer for the injury or death of an employee shall not affect the right of the employee or his dependents to sue any other party at law for such...
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...general contractor under the exclusive remedy provision. The court in Doubleday also noted its previous holding in Robertson v. Stroup, 254 Miss. 118, 180 So.2d 617 (1965), that workers' compensation was the exclusive remedy of an injured employee in agency The court in Doubleday also discu......
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...Mississippi Workers' Compensation Act are synonymous with the words "master" and "servant" as used under common law. Robertson v. Stroup, 254 Miss. 118, 180 So.2d 617 (1965). Hillcrest Hospital v. State Industrial Court, 452 P.2d 781 (Okla.1969); Landrum v. Ownby, 290 P.2d 400 (Okla.1955). ......
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