Seedkem South, Inc. v. Lee, 51841

• Decision Date: 10 December 1980
• Docket Number: No. 51841,51841
• Citation: 391 So.2d 990
• Parties: SEEDKEM SOUTH, INC. a/k/a Tenatek, Inc. v. Gary G. LEE.
• Court: Mississippi Supreme Court

Page 990

391 So.2d 990

SEEDKEM SOUTH, INC. a/k/a Tenatek, Inc. v. Gary G. LEE.

No. 51841.

Supreme Court of Mississippi.

Dec. 10, 1980.

Frank W. Hunger, Lake, Tindall, Hunger & Thackston, Greenville, for appellant.

Wayne O. Lee, Gaines S. Dyer, Dyer, Dyer & Dyer, Greenville, for appellee.

Before SMITH, BROOM and COFER, JJ.

SMITH, Presiding Justice, for the Court:

Seedkem South, Inc. appeals from a judgment in favor of Gary G. Lee for $2,934.52 rendered against it by the County Court, and affirmed by the Circuit Court, of Washington County. Lee's suit was brought originally against Seedkem and one Sanchez, an employee, and was for the recovery of damages to Lee's automobile alleged to have resulted from a collision between Lee's car, driven by him, and a bob truck leased by Seedkem and being driven by Sanchez. It was alleged that the collision and resulting damages were the results of negligence upon the part of Sanchez in the operation of the truck and that Seedkem was liable under the doctrine of respondeat superior.

Before the trial began plaintiff effected a settlement with Sanchez and he went out of the case as a party.

By agreement, the case was heard before the county court judge without the intervention of a jury. At the conclusion of the evidence, the trial judge applied the comparative negligence statute, holding that both Sanchez and Lee had been guilty of negligence which proximately contributed to the collision; that Sanchez was, at the time, acting within the scope of his employment by Seedkem and was about the business of Seedkem and that Seedkem, therefore, was liable to Lee.

There was no substantial conflict in the evidence with respect to the material issues.

Plaintiff Lee, in addition to his own eye-witness testimony, offered these witnesses on the issue of liability: Mississippi Highway Patrolman Williams, Greenville Police Officer Wages and Sanchez. Sanchez testified for the plaintiff, Lee, (the record shows an an "adverse" witness). In substance, Sanchez said that he had delivered the truck to National Car Rentals in Greenville, from whom Seedkem had leased it, for servicing in keeping with instructions from Seedkem, that he had waited until the truck had been serviced. The servicing of the truck was completed at about 3:00 in the afternoon. Sanchez then called Seedkem, whose place of business was near Lake Providence, Louisiana, and talked to a fellow employee. He instructed this employee to have him checked out at 4:30 p. m. and told him that afterward he would not return immediately to Louisiana but would visit with relatives in Greenville.

On cross-examination, Sanchez admitted that his statement that he was going to visit relatives in Greenville was "a complete fabrication and falsehood." He testified that in reality what he intended to do was to go and have some drinks. He said that he left National Car Rentals at about 3:00 in the afternoon and drove the truck to a place known as the Riverdale Club where he stayed about three hours drinking beer and shooting pool. From there he drove to another similar establishment known as "B's" where he stayed until about midnight and continued his beer drinking.

Sanchez testified that the reason he made a false report to Seedkem by telephone was that he knew that Seedkem had a "strict policy against drinking on the job." He said that his instructions had been that when he returned to his home at Lake Providence to take the vehicle to his home and keep it there until he reported for work on Monday morning. There is no testimony that he had permission to use the truck for personal business or pleasure.

The account of the collision itself given by Sanchez was to the effect that, at about midnight, after some nine hours of beer drinking and pool playing, he decided to leave B's and started back toward Louisiana on Highway 82. After going two or three miles, he had developed a headache (not surprisingly) and said that he intended to return to B's, the place he had just left, in order to get an aspirin. On leaving B's, he had proceeded only two or three miles in a westerly direction on Highway 82. Highway 82 is a four-lane highway and Sanchez turned south across the median for the purpose of entering the east bound lane of the highway. In order to return to B's it was necessary that he proceed east to the next interchange and turn north and then west. He stated that he "was going to make a left turn at the median there," and said that it was then that the collision occurred. He said that prior thereto he saw no vehicles to his rear and insisted that only one car was involved in the collision. He said he was slowing down to make a left turn, that he was on the inside lane next to the median.

On cross-examination, Sanchez admitted, as he had testified on a previous occasion, that his instructions had been that he was to have the truck serviced, go back home and park it there at his house. He admitted that he understood from his instructions that after the truck was serviced he was to bring it "right back" to his house in Louisiana and that he understood his instructions were to take the truck right on back to his house in Louisiana after it was serviced in Greenville.

The collision occurred at the intersection of Highway 82 and Cypress Lane Road, at the City of Greenville. It was investigated by Mississippi Highway Patrolman Williams. Williams testified for plaintiff. He said that two other vehicles had been involved in the collision with the vehicle driven by Sanchez. Although the evidence is incontrovertible that this was true, Sanchez denied it throughout his testimony. He stated that the damage to the truck had been to the left front tire, bumper and fender. Patrolman Williams said that Sanchez was drunk, (Sanchez had said that he didn't "think" that he was). Patrolman Williams said that his conclusion was based upon the fact that "He (Sanchez) was unsteady on his feet, from the way he was talking, he was blushed around the face, his eyes were red and I could also smell alcohol-not only on him but on his clothes also." He testified that plaintiff Lee told him at the scene that as he approached "travelling east toward Greenville" that he had seen the Sanchez truck "on the right shoulder of the road ... headed east toward Greenville." As he (plaintiff Lee), approached Sanchez's vehicle it began to pull to its left, out on the road, and he, plaintiff Lee, switched lanes. As he switched lanes Sanchez's vehicle hit him. The other truck involved, was being driven by one McGee. Patrolman Williams said "-I talked to him (McGee) and he said he saw the first accident and was going to try to go around and that is when the other truck hit him-where the bob truck hit him."

Patrolman Williams testified, without objection, that in his investigation that he had learned that just prior to the accident the bob truck had been parked off the right hand side of the road, facing Greenville and that the two pickups which collided with it, were also headed toward Greenville. He testified that plaintiff Lee had told him that as he (Lee) approached it (Sanchez truck) pulled out into the highway and as it did he (Lee) switched to the left lane, and in the process of switching to the left lane it was at that point in which the vehicles collided. Patrolman Williams said that when he arrived at the scene, none of the vehicles had been moved, the front of the bob truck was headed east.

Patrolman Williams testified "There were three vehicles involved, one vehicle being a bob truck (Sanchez) belonging to National Car Rentals and two pickup trucks involved. One of the pickup trucks was off in a barpit on the right side of the road which would be the east bound lane and was overturned." Patrolman Williams took photographs of the scene which appear to support his testimony. These photographs indicated that the first vehicle and the bob truck collided in the right hand east bound lane and the second at about the center line of the east bound lane, the bob truck (Sanchez) coming to rest in the median.

Greenville City Police Officer Dyer also went to the scene and testified for plaintiff. He said that "The man (Sanchez) was unsteady on his feet; he wasn't falling down drunk or anything of that nature, but he was unsteady on his feet and in my opinion should not have been operating a motor vehicle." When Dyer was asked if he (Sanchez) was drunk or sober he answered "Drunk. Too much to be driving." He stated that he noticed nothing abnormal about the drivers of the other vehicles.

Plaintiff Lee, testifying in his own behalf as an eyewitness, said:

He (Sanchez) was coming off the shoulder of the road and I was in the right hand lane, the eastbound lane-he had done come across that part, so I went to the left hand lane trying to get around him-there wasn't no way I could stop it happened so fast and he was coming across the lane and I hit him.

He also testified that "It looked like he (Sanchez) was drunk-he was trying to direct traffic and they arrested him." He testified that when he first saw the bob truck it was located on the right shoulder of the highway headed east. He said he first noticed the truck on the shoulder of the highway when it began pulling out into his lane of traffic. Plaintiff Lee testified further:

A. He (Sanchez) pulled off the shoulder-see, I was in the right hand lane and he pulled off the shoulder into the right hand lane, so I went to the left hand lane-it was still the eastbound traffic lane-to try to get around him.

Q. Where was your truck and the bob truck located with reference to the two lanes when the impact occurred?

A. In the center of the left hand eastbound lane.

The trial judge delivered an opinion in which he stated a number of conclusions, including the following:

Sanchez was at various times about the business of his principal acting as agent and at other times had deviated from his agency relationship and was engaged in...