Texas Co. v. Jackson

• Decision Date: 03 February 1936
• Docket Number: 31960
• Citation: 174 Miss. 737,165 So. 546
• Court: Mississippi Supreme Court
• Parties: TEXAS CO. et al. v. JACKSON

165 So. 546

174 Miss. 737

TEXAS CO. et al. v. JACKSON

No. 31960

Supreme Court of Mississippi

February 3, 1936

(In Banc.)

1. MASTER AND SERVANT.

In driver's action against petroleum company and its commission agent for injuries sustained because of defective steering wheel of agent's truck, defendants' negligence held for jury.

2 COURTS.

Decision in prior case that contract created relation of master and servant not only between petroleum company and its agent, but also between company and persons employed by agent, held controlling in subsequent action involving identical contract, unless cases could be distinguished on facts.

3. MASTER AND SERVANT.

Determination as to whether employer or workman supplied instrumentalities tools, and place of work is not controlling in determining whether one acting for another is servant or independent contractor, but is of evidential value only.

4. MASTER AND SERVANT.

Ultimate question in determining whether person is "servant" or "independent contractor" is whether physical conduct of employee in performance of his duties is controlled or is subject to right of control by employer.

5. MASTER AND SERVANT.

Relation of master and servant arises out of contract express or implied, and, if contract of employment expressly gives right of control to employer, then relation of master and servant is created without reference to ownership of instrumentalities used by employee in performance of his duties or place at which he performs them.

6. MASTER AND SERVANT.

That employee may terminate contract at pleasure or on notice may be material when determining relation between employee and employer, in absence of express contract creating that relation, but, when contract creates relation, it continues until contract is terminated.

7 CONTRACTS.

Evidence of practical construction placed by parties on contract is admissible as aid in interpretation when contract is ambiguous, but, when contract is unambiguous, such evidence is inadmissible.

8. MASTER AND SERVANT. Under facts, petroleum company's commission agent in charge of company's bulk sales station held company's "servant" and not "independent contractor," notwithstanding he furnished his own assistants, as respects company's liability for injuries sustained by driver of agent's allegedly defective delivery truck.

Facts disclosed that the premises on which the bulk sales station was conducted were owned by the agent; that agent's employment was for indefinite time; that agent was required to furnish trucks not furnished by company, and he was required to receive, store, care for, and deliver company's products to purchasers; that he was required strictly to observe company's instructions; and that at his expense he was required to furnish all assistants and employees for operation of station.

9. MASTER AND SERVANT.

If contract creates relation of master and servant, master cannot avoid its consequences by refraining from exercising powers thereby conferred, although he does so under belief that contract did not create such relation.

10. APPEAL AND ERROR.

Alleged error in admitting evidence of mental anguish in personal injury action held not prejudicial, where damages were less than jury could properly have awarded.

11 TRIAL.

In driver's action for injuries sustained because of defective steering wheel of truck, wherein testimony of plaintiff's physician contained by implication an admission by driver that injury was not caused by defect in wheel, driver held properly permitted to testify in rebuttal that physician was mistaken if he said that driver did not make statement relating to wheel.

12 TRIAL.

In driver's action against petroleum company and its agent for injuries sustained because of defective steering wheel of agent's truck, charge that driver was employee of company and its agent held not erroneous as invading jury's province, where contract between company and its agent created relation of employer and employee between company and driver.

13. MASTER AND SERVANT.

In driver's action for injuries sustained because of defective steering wheel of truck, whether driver was contributorily negligent held for jury.

14. MASTER AND SERVANT.

Driver did not assume risk of driving truck with knowledge of defect in steering wheel, especially when his employer through its agent had promised to repair (Code 1930, section 513).

HON. THOS. H. JOHNSTON, Judge.

APPEAL from the circuit court of Lee county HON. THOS. H. JOHNSTON, Judge.

Action by A. H. Jackson against the Texas Company and another. From a judgment for plaintiff, defendants appeal. Affirmed.

Affirmed.

Leftwich & Tubb, of Aberdeen, and Blair & Anderson, of Tupelo, for appellant.

R. L. Gober was an independent contractor; servants employed by him were not the servants of the defendant, the Texas Company. Therefore, the relation of master and servant did not exist between the plaintiff A. H. Jackson and the defendant, the. Texas Company.

31 C. J. 473; 39 C. J., Master & Servant, pages 1315-24, sec. 1517; 1 Restatement of the Law of Agency, page 11, sec. 2, and page 483, sec. 220, and page 559, sec. 250; New Orleans & Northeastern Ry. Co. v. Reese, 61 Miss. 581; New Orleans, etc., R. Co. v. Norwood, 62 Miss. 565; Southern Express Co. v. Brown, 67 Miss. 260, 19 A. S. R. 306; Till v. Fairbanks Co., 111 Miss. 123, 71 So. 298; Bear Creek Mill Co. v. Fountain, 94 So. 230, 130 Miss. 436; Isaac v. Prince & Wilds, 133 Miss. 195, 97 So. 558; Sawmill Construction Co. v. Bright, 116 Miss. 491; Carr v. Burke, 169 N.Y.S. 981; Crescent Baking Co. v. Denton 112 So. 21, 147 Miss. 639; Hutchinson-Moore Lbr. Co. v. Pittman, 122 So. 191, 154 Miss. 1; Louis Werner Sawmill Co. v. Northcutt, 161 Miss. 441, 134 So. 156; Aldrich v. Tyler Grocery Co., 206 Ala. 138, 89 So. 289, 17 A.L.R. 617, 620; Thomas Gall v. Detroit Journal Co., 191 Mich. 405, 158 N.W. 36, 19 A.L.R. 1164-67; McBride v. Jerry Madden Shingle Co., 173 Mich. 248, 138 N.W. 1077; Knowlton v. Hoit, 67 N.H. 155, 30 A. 346; Gay v. Roanoke R. R. & Lbr. Co., 148 N.C. 336, 62 S.E. 436; Scales v. First State Bank, 88 Or. 490, 172 P. 499; Barnard v. Coffin, 55 Am. Rep. 443; Union Cas. & Surety Co. v. Gray, 114 F. 422; Texas Co. v. Brice, 26 F.2d 164; Inman v. Gulf Refining Co., 140 S.E. 289; Sams v. Arthur, 133 S.E. 205; Phipps v. Gulf Refining Co., 25 Ga.App. 384, 103 S.E. 472; Gulf Refining Co. v. Harris, 30 Ga. Sup. 240, 117 S.E. 274; Gulf Refining Co. v. Wilkinson, 114 So. 503; 19 A.L.R. 236.

The trial court committed error in permitting the appellee Jackson to testify that he suffered mental worries while in the hospital because he had a family and was without any means or income to support them.

The trial court committed error in permitting appellee Jackson to offer evidence to contradict the statement of Dr. J. L. Trice, a witness called by him, and also in withdrawing the instruction which was given the jury on that subject and stating to the jury that the instruction was withdrawn and refused and that they should not consider it.

It is common knowledge among well informed lawyers that a party is not permitted to contradict his own witness put upon the stand by him, unless he shows surprise or that he has been entrapped by the witness.

Joseph Dunk v. State, 84 Miss. 452-456.

The learned trial court, after the entire trial was completed, had the opportunity to review all of the proceedings in the hearing of this motion for a new trial, the motion ought to have been granted and the verdict set aside.

The verdict of the jury may be set aside when it is manifestly wrong.

King v. Rowan, 82 Miss. 1, 34 So. 325.

Where the verdict is contrary to the overwhelming weight of the evidence it should be set aside or cause will be reversed.

M. & O. R. R. Co. v. Bennett, 127 Miss. 413, 90 So. 113; Clarke v. Moyse, 48 So. 721; McFadden v. Buckley, 98 Miss. 28, 53 So. 351; Fore v. Railway, 87 Miss. 218, 39 So. 493, 600; McQueen v. Bostwick, 12 S. & M. 604; Sims v. McIntyre, 8 S. & M. 327; Barbee v. Reese, 60 Miss. 906; Tunstall v. Walker, 2 S. & M. 638.

The verdict will be set aside when it evinces passion and prejudice.

Y. & M. V. R. R. Co. v. May, 124 Miss. 422, 61 So. 449, 44 L.R.A. (N.S.) 1138; Gulf Refining Co. v. Miller, 121 So. 482, 153 Miss. 741; Harris v. Sims, 155 Miss. 207, 124 So. 325; Bufkin v. Grisham, 157 Miss. 746, 128 So. 563; McDonald v. Moore, 159 Miss. 326, 131 So. 824; Miss. C. R. R. Co. v. Caruth, 51 Miss. 77; I. C. R. R. Co. v. LeBlanc, 74 Miss. 626, 21 So. 748.

The trial court committed error in permitting appellee to introduce evidence of an alleged defect in the steering wheel under the allegation in his declaration that "the steering apparatus on said automobile truck, by reason of its old, worn and defective condition, broke and failed to operate" that this was a variance and appellant's objection should have been sustained. The plaintiff's declaration made no mention whatever of a defective steering wheel.

Kimbrough v. Ragsdale, 69 Miss. 674, 13 So. 830; I. C. R. R. Co. v. Cathey, 70 Miss. 332, 12 So. 253; I. C. R. R. Co. v. Price, 72 Miss. 862, 18 So. 415; True Hixon Lbr. Co. v. McDonough, 154 Miss. 720, 123 So. 855.

The trial court committed error in permitting appellee to show that there was a defect in the steering wheel of which he had knowledge and which he voluntarily continued to use and which he knew had not been repaired.

Miss. Utilities Co. v. Smith, 166 Miss. 105, 145 So. 896.

The contract does not retain any supervision or control over the methods, means and manner of its performance.

Bear Creek Milling Co. v. Fountain, 94 So. 230, 130 Miss. 436; Crescent Baking Co. v. Denton, 112 So. 21, 147 Miss. 639.

The fact that the employer...