Russell v. Williams

• Decision Date: 11 December 1933
• Docket Number: 30694
• Citation: 168 Miss. 181,151 So. 372,150 So. 528
• Court: Mississippi Supreme Court
• Parties: RUSSELL v. WILLIAMS

150 So. 528

151 So. 372, 168 Miss. 181

RUSSELL v. WILLIAMS

No. 30694

Supreme Court of Mississippi

December 11, 1933

Division B

October 30, 1933

APPEAL from Circuit court of Forrest county, HON. W. J. PACK, Judge.

Action by Tom Williams against E. E. Russell and another. Judgment for plaintiff against named defendant, and named defendant appeals. Reversed and remanded.

On suggestion of error. Suggestion of error overruled.

For former opinion, see 150 So. 528.

Reversed and remanded. Suggestion of error overruled.

Luther A. Smith, of Hattiesburg, for appellant.

The truck driver's manner of driving was not the proximate cause of plaintiff's injury.

The overwhelming weight of the testimony is that plaintiff jumped from the truck, which was the proximate cause of his injury.

The plaintiff and appellant's truck driver were fellow-servants.

Southern Lumber Company v. Hamilton, 137 Miss. 55, 101 So 787; Ozen v. Sperier, 117 So. 117; Secs. 666 and 667, 39 C. J., p. 555.

The so called superior servant rule is not applicable here.

Subjection to control and direction by the same common master, in the same common pursuit, furnishes the true test of co-service.

McMaster v. I. C. R. R., 65 Miss. 264, 4 So. 59; Milling Co. v Phillips, 117 Miss. 204, 78 So. 6; Sumrall v. Kitselman Bros., 101 Miss. 783, 58 So. 594.

The assumption of the authority of one servant to control another, and the acquiescence by the second servant to this control, does not render the employer liable in the absence of authority conferred upon the servant by the master.

White, Personal Injuries, 222; McMillan v. Mining Co., 61 W.Va. 531, 57 S.E. 129, 11 L. R. A. (N. S.) 840.

It is elementary law that agency cannot be proven by the acts or declarations of the alleged agent.

Therrell v. Ellis, 83 Miss. 494, 35 So. 826.

Even in those jurisdictions where the "superior servant doctrine" applies it is required that the negligent act complained of shall be committed while the superior servant is in the exercise of the authority and control over the injured employee.

39 C. J., sec. 712, p. 593; 18 R. C. L., sec. 217, pp. 745, 746 and 747; Lagrone v. M. & O. R. Co., 67 Miss. 592, 7 So. 432; Givens v. So. R. Co., 94 Miss. 830, 49 So. 180, 22 L. R. A. (N. S.) 971; Petroleum Iron Works v. Bailey, 124 Miss. 11, 86 So. 644; Hercules Powder Co. v. Hammack, 145 Miss. 304, 110 So. 676.

The superior servant rule is not recognized in Mississippi.

Bussey v. G. & S. I. R. Co., 79 Miss. 597, 31 So. 212; Railroad v. Hughes, 49 Miss. 258; Howd v. Miss. Cent. R. Co., 50 Miss. 178; L. & N. R. Co. v. Petty, 67 Miss. 255, 7 So. 351; Lagrone v. M. & O. R., 67 Miss. 592, 7 So. 432; Farquhar v. A. & V. R. Co., 78 Miss. 193, 28 So. 850; Evans v. L. & N. R. Co., 70 Miss. 527, 12 So. 581.

The court erred in granting plaintiff instruction as follows: "The court instructs the jury for the plaintiff that neither of the defendants in this case can escape liability because of mere contributory negligence, if any, of the plaintiff, provided you believe from a preponderance of the evidence that, as a result of the negligence, if any, of the defendants or either of them, plaintiff was injured."

The court erred in granting plaintiff instruction as follows: "The court further instructs the jury for the plaintiff that if you believe from a preponderance of the evidence in this case that the automobile truck on which plaintiff was riding was negligently turned to the left of the center of the street or highway before reaching a street intersection, if any, and as a proximate result of which the plaintiff was injured, then the defendant, E. E. Russell, the owner of the truck, if you believe he was the owner thereof, is liable in damages to plaintiff for such injury as he has sustained, if any, as a direct or proximate result thereof."

There can be no justification for this instruction under the law and the record in this case.

Cephus Anderson, of Hattiesburg, for appellee.

Where there is some evidence tending to support the affirmative of an issue it cannot be taken from the jury.

State v. Spengler, 21 So. 4; Strauss v. National Parlor Furniture Co., 24 So. 703.

Questions of fact are for the determination of the jury.

Cantrell v. Lusk, 73 So. 885; Sackler v. Slade, 114 So. 396.

The decision of the jury on its face, appears not to have been prejudiced, nor any intimation of bias in any particular.

This court has held on numerous occasions that either of the acts of negligence charged in the declaration would support a cause of action, if same was the proximate cause of the injury, if any.

The truck driver's manner of driving was the proximate cause of plaintiff's injuries. The jury could observe of the demeanor of the witnesses and were in better position to judge as to the reasonableness of their testimony, and the jury having decided that question adversely to the appellant, we submit this court should not disturb that finding.

Greer v. Pierce, 147 So. 303; Pate Lbr. Co. v. Weathers, 146 So. 433; Hartford Fire Ins. Co. v. Williams, 145 So. 94.

In the case at bar, there is a conflict in the proof as to the relationship of Carpenter and appellee. If appellee's testimony is true, or tends to establish a truthful assertion, then appellee is entitled to go to the jury on that question.

State v. Spengler, 21 So. 4; Strauss v. National Parlor Furn. Co., 24 So. 703.

We submit that under the testimony and instructions in this case, whether Carpenter's conduct was that of the master and the entire relationship between Carpenter and appellee presented a clear question of facts to the jury.

Loper v. Y. & M. V. R. R., 145 So. 743; Miss. Utilities v. Smith, 145 So. 896; Gulf Refg. Co. v. Ferrell, 147 So. 476; Gulf Refg. Co. v. Nation, 145 So. 327; Gwinn v. Carter, 129 So. 597.

The proof supports the contention that Carpenter was the master; that appellee was the servant; that Carpenter had authority to direct and control the services of the appellee, not only as to the result, but as to the manner; and that he had the authority at his will, to discharge for any reason the appellee from service.

Hamilton Bros. Co. v. Weeks, 124 So. 798; Gwinn v. Carter, 129 So. 597.

Generally speaking, the decision as to whether the rule is to be applied depends on whether or not the so-called superior servant has the authority to superintend or control the injured servant, and not merely on the grade or rank of the so-called superior servant.

39 C. J., 574, 576, 691.

Argued orally by Luther A. Smith, for appellant, and by Cephus Anderson, for appellee.

OPINION

Ethridge, P. J., Griffith, J.

Tom Williams, plaintiff in the court below, brought suit against the appellant, E. E. Russell, and one Rawls, for a personal injury received by appellee in a collision between a truck owned by E. E. Russell, and being driven by Mr. Bernard Carpenter, an employee of E. E. Russell, upon which plaintiff (appellee here) was riding on the running board.

There was a judgment against E. E. Russell for two thousand dollars, and a judgment in favor of Rawls, in the court below.

On the day of the injury, the truck driven by Mr. Carpenter was filled with laborers riding to their work on a viaduct being constructed by Mr. E. E. Russell, in Kamper Park, and, while traveling along Hardy street, a main thoroughfare in Hattiesburg, Mississippi, there being another street entering Kamper Park, Mr. Carpenter turned into Kamper Park. Following on Hardy street was a car driven by Rawls who was attempting to pass on the left-hand side. Rawls and another person were traveling in the direction of the state college at a somewhat greater rate of speed than the truck, and desired to pass the truck, but the truck turned into the street going into the park without giving any signal of his intention to turn, and the collision occurred, as a result thereof.

The testimony of Rawls and the persons riding with him was to the effect that the truck turned from Hardy street into the intersecting street going south without giving a signal of any kind of his intention to turn, and without slowing down; that, when they saw the truck turning rather sharply, not going behind the intersection of the intersecting street, Rawls tried to turn his car to the left, but that the truck ran into his car, breaking the glass in the rear side door and injuring Miss Brown, a passenger in Rawls' car, that they ran across the curb and ditch in trying to avoid the collision, and that they were not at fault in reference to the collision.

The testimony of some witnesses who were near the place of the injury was to the effect that Mr. Carpenter was traveling at twenty-five miles per hour, and turned into the street entering Kamper Park without giving a signal, or holding out his hand to indicate his intention to turn. They stated that the plaintiff, Tom Williams, was on the running board, and was knocked off, or jumped off, in the collision, and fell at the edge of the ditch, breaking his arm.

Another witness testified that he was approaching the place of the injury in a truck belonging to the state highway department; that he saw no signal being given of Mr. Carpenter's intention to turn; that he saw the collision, but did not see the plaintiff until he was within two or three feet off the ground in a falling position; that there were a number of negroes in the truck being driven by Mr. Carpenter.

There was further testimony for the plaintiff to the effect that the laborers, of which plaintiff was one, were working on a viaduct, and were directed to assemble at the glass house and that Mr. Carpenter directed the laborers to get into the truck for transportation to their work, and that, on the occasion of the...