Southern Express Co. v. Brown

• Decision Date: 17 February 1890
• Court: Mississippi Supreme Court
• Parties: SOUTHERN EXPRESS CO. v. E. A. BROWN

7 So. 318

67 Miss. 260

SOUTHERN EXPRESS CO. v. E. A. BROWN

Supreme Court of Mississippi

February 17, 1890

FROM the circuit court of Lowndes county, HON. LOCK E. HOUSTON Judge.

The facts are stated in the opinion. The trial resulted in a verdict and judgment for plaintiff for $ 2000, and defendant appealed.

Judgment affirmed.

Calhoon & Green, for appellant.

The plaintiff did not exercise reasonable care, as appears from his own testimony. He was in a public street and neither he nor the vehicle had any superior right. It was his duty to look and listen for any approaching vehicle. Barker v Savage, 45 N.Y. 194; Brooks v. Schwerin, 54 Ib 347; 2 Shear. & Red. on Neg., § 476.

The gravamen of the declaration is that the driver was the servant of the defendant. If he was not, no liability exists. That person is liable who stands in the relation of master to the wrongdoer, he who selected him from a knowledge or belief in his skill and care, and who could remove him for misconduct, and whose orders he was bound to obey. Quarman v. Burnett, 6 M. & W. 499; Saugher v. Pointer, 5 B. & C. 547. The relation arises only by contract. Wood, Mast. & Serv., § 4. The person sought to be charged must at least have the right to direct the person's conduct and prescribe the mode and manner of the work. Ib. § 281. Liability cannot exist unless this relation in fact exists, and it can not be created by holding out the driver as the servant. If he was not in fact such servant, it matters not what the appearances may have been as to his driving a wagon labelled "express wagon." Here it is clearly proven that the agent of the company had the contract for the hauling, and the driver was his servant, not the defendant's.

It was error to permit the jury to award punitive damages. There was no claim for any in the declaration. There was no allegation that the act complained of was wilful, wanton, or reckless. In the absence of any claim for punitive damages and of any proofs justifying their infliction, it was clearly improper for the court by modifying defendant's instruction to direct them to be considered.

Humphries & Sykes, for appellee.

The court properly modified the instruction asked by the defendant, which sought to limit the jury to compensatory damages. This modification was proper in view of the evidence, and contained only the legal proposition that if the act complained of was wilfully, wantonly, or recklessly committed, punitive damages might be awarded. R. Y. Co. v. McLondon, 63 Ala. 266; R. R. Co. v. Arms, 91 U.S. 489; 1 Sutherland on Damages, 724; 1 Sedgwick on Damages, 53; Caldwell v. Steamboat Co., 47 N.Y. 282; Kennedy v. R. R. Co., 36 Mo. 351; R. R. Co. v. Statham, 42 Miss. 607; R. R. Co. v. Whitfield, 44 Ib. 466.

It is proper for the court to modify an instruction based upon a certain state of facts, if these facts sustain the proposition submitted by the modification. Shelby v. Offut, 51 Miss. 129.

The jury was properly instructed as to what constitutes the relation of master to servant, and it properly found that the driver was the servant of the express company, and not of the agent. This was a question of fact, and the finding of the jury must control.

Every indicia of the business evidenced that the defendant company was transacting its own usual and accustomed business without the intervention of an independent contractor. Any private arrangement under which the driver was employed was one of which the community at large was wholly ignorant, and the manner in which the business of the defendant was conducted belied the existence of such a contract.

The questions of law and of fact were fairly submitted to the jury under proper instructions, and the verdict should not be disturbed.

OPINION

COOPER, J.

This is an action by appellee to recover damages against appellant for injuries inflicted upon him by the servants of appellant by driving over him a loaded express wagon. The evidence of the plaintiff tended to show that on the night when the injury was received, he was walking along one of the public streets of the town of Columbus upon a footpath on the side of the street, where pedestrians were accustomed to travel, and was overtaken and run down by the express wagon driven by appellant's servant, which was being rapidly driven, and was without lights to enable the driver to perceive and avoid pedestrians, and that the wagon was not accustomed in its trips to and from the depot to go upon the footpath where plaintiff was injured. The injury inflicted was undoubtedly painful and serious, and has probably resulted in permanently impairing plaintiff's capacity to labor in his trade. On the other hand, the evidence for defendant tended to show that the wagon, while engaged in transporting the goods of the defendant, was driven by the servant of one Albright, who was the agent of defendant at Columbus, but who contracted for a certain sum to furnish the horse and driver, and to carry defendant's packages to and from the depot; that the wagon was being cautiously driven at a slow pace, and that the injury, if inflicted by the wagon, was either unavoidable and accidental, or was contributed to by the negligence of plaintiff. The evidence also tended to prove that the injury was not inflicted by the express wagon, but by a carriage of another.

Among other errors assigned is one to the action of the court in permitting the plaintiff to testify that he was a man of family, having a wife and two children dependent upon his labor for support. The record is contradictory as to what transpired in reference to this matter. The appellant reserved special exceptions during the progress of the trial, and then included them as a part of the general bill reserved to the action of the court in overruling the motion for a new trial. In the special bill the judge certifies that he overruled the defendant's objection to this evidence, but in the general bill he certifies that the objection was sustained. In this condition of the record we cannot know what action was really taken.

The court permitted the plaintiff to introduce much evidence tending to prove that Timberlake, the driver of the express wagon, was an habitual drunkard, and habitually careless and reckless in driving. The...