Wilkins v. Coggin
| Decision Date | 05 March 1934 |
| Docket Number | 31058 |
| Citation | 152 So. 871,169 Miss. 442 |
| Court | Mississippi Supreme Court |
| Parties | WILKINS v. COGGIN |
AUTOMOBILES.
Whether person driving truck at time of collision with automobile was defendant's servant or independent contractor held for jury, in view of testimony concerning alleged master's admissions of responsibility for driver.
HON THOS. H. JOHNSTON, Judge.
APPEAL from circuit court of Lee county, HON. THOS. H. JOHNSTON Judge.
Suit by Mrs. L. A. Wilkins against B. G. Coggin. From a judgment for defendant, plaintiff appeals. Reversed and remanded.
Reversed and remanded.
Geo. T. & Chas. S. Mitchell, of Tupelo, and D. W Houston, Sr. and Jr., of Aberdeen, for appellant.
Neither John Morrow or Leland Morrow were independent contractors; but were agents or servants of appellee, who is liable for their acts.
31 C. J. 473, 474, note 29 (a) and (b), and 475, note 35 (b); Bristol, etc., Co. v. Industrial Commission, 292 Ill. 16, 21, 126 N.E. 599; 2 C. J. 424-5; N. O. & N.E. R. Co. v. Reese, 61 Miss. 581, 588; Southern Express Co. v. Brown, 67 Miss. 260; M. O. B. R. & M. R. R. Co. v. Norwood, 62 Miss. 565; Till v. Fairbanks Co., 111 Miss. 123, 71 So. 298; DeLory v. Bladgett, 185 Mass. 126; Crescent Baking Co. v. Dentol et al., 147 Miss. 639, 112 So. 21; Caver v. Eggerton, 157 Miss. 88, 127 So. 727; Natchez Coca-Cola Bottling Co. v. Watson, 160 Miss. 173, 182, 133 So. 677; Kisner v. Jackson, 159 Miss. 424, 132 So. 90; Hinton v. Walker & Pearson, 142 Miss. 50, 53, 107 So. 275; McDonald v. Hall-Neely Lbr. Co., 165 Miss. 143, 147 So. 315; Gulf Refining Co. v. Nations, 145 So. 327.
Leland Morrow was the servant of appellee, although selected by John W. Morrow, and subject to be discharged by appellee.
Southern Express Co. v. Brown, 67 Miss. 260.
Among other testimony which should have caused the lower court to submit this case to the jury was the testimony of L. A. Wilkins as to the admissions made by appellee both as to Leland Morrow as well as to John M. Morrow being his servants, etc.
Simmons v. Monier, 29, Barbow 419.
Blair & Anderson, of Tupelo, and Leftwich & Tubb, of Aberdeen, for appellee.
There was never any contractual relation between Leland Morrow and Coggin. And, furthermore, Leland Morrow, the driver, was under the control of his father, John Morrow, who employed him. The undisputed facts in this case disclose that Leland Morrow was not the servant of Coggin, appellee, but was the servant of his father, John Morrow, the owner of the truck, who employed him.
31 C. J., Independent Contractor, pages 473-475; 39 C. J., Master and Servant, pages 1316-1323; 14 R. C. L., Independent Contractor, pages 67-76; N. O. N.E. R. Co. v. Reese, 61 Miss. 581; N. O. B. R. Vicksburg R. Co. v. Norwood, 62 Miss. 565; Callahan Constr. Co. v. Rayburn, 119 Miss. 107, 69 So. 669; The Texas Co. v. Brice, 26 F.2d 164; Gulf Refining Co. v. Wilkinson, 114 So. 503; Union Casualty & Surety Co. v. Gray (C. C. A. 3), 114 F. 422; So. Express Co. v. Brown, 67 Miss. 260, 19 A. S. R. 306; Isaacs v. Prince & Wilds, 133 Miss. 195, 97 So. 558; Hutchinson-Moore Lbr. Co. v. Pittman, 154 Miss. 1, 122 So. 191; Louis Werner Sawmill Co. v. Northcutt, 161 Miss. 441, 134 So. 156; Barnard v. Coffin, 55 Am. Rep. 443; Great Atlantic & Pacific Tea Co. v. Compton, 164 Miss. 553, 145 So. 105; Till v. Fairbanks Co., 111 Miss. 123, 71 So. 298; Crescent Baking Co. v. Denton, 147 Miss. 639, 112 So. 21; Rogers v. Lewis, 14 So. 373; McDonald v. Hall-Neely Lbr. Co., 165 Miss. 143, 147 So. 315; Bear Creek Mill Co. v. Fountain, 130 Miss. 436, 94 So. 230; 7-8 Huddy's Automobile Law, pages 305, 306 and 307, et seq., sec. 120, and pages 338, 339 and 341, et seq., secs. 129, 130 and 131.
John W. Morrow was an independent contractor.
31 C. J. 473; 39 C. J., Master and Servant, p. 1315, sec. 1517, and p. 1324; Rogers et al. v. Lewis, 144 So. 373.
Appellee Coggin retained and exercised no control or supervision over the means and manner of performing the work.
The alleged interview at the scene the next morning following the accident shows that when these gentlemen were discussing it, Mr. Coggin had just arrived and had not investigated the accident and did not know how it happened, therefore even if he admitted to Mr. Wilkins that he was liable for their action, yet this was a mere legal conclusion as to whether or not he was liable under the facts and circumstances of the employment. The facts are all before the court showing the manner in which Morrow was employed, and how he performed his contract and that Coggin did not retain the right of control over the operations, in fact, did not attempt to exercise any.
Verbal admissions of this character are of little weight, and if received at all by the courts, they are received and acted upon with great caution and scrutiny.
Campbell v. Henry, 45 Miss. 326.
Mrs. L. A. Wilkins, appellant, brought suit against B. G. Coggin, appellee, for personal injuries occasioned by a collision between an automobile driven by Mr. Wilkins, appellant's husband, and a truck driven by a man named Morrow, alleged, by appellant, to be an employee of B. G. Coggin.
B. G. Coggin defended upon the ground that Morrow was not his servant, and that he (Coggin) was not responsible for the negligence, if any, of Morrow in driving the truck which collided with the automobile, and that the collision was the result of the negligence of Mr. Wilkins, appellant's husband.
The evidence was conflicting as to how the collision occurred and who was at fault and as to all the facts thereof.
If Morrow was the servant of Coggin, the question was for the jury, and we understand this was admitted by attorneys for Coggin.
The court below granted a peremptory instruction for the appellee, Coggin, and, if the judgment is to be upheld, it must be upon the theory that Morrow, in operating the truck, was an independent contractor, and not an employee of Coggin.
To make out a case for the appellant, plaintiff in the court below Mr. Wilkins, her husband, testified to certain statements tending to show that Coggin recognized Morrow as being his employee, and also recognized his (Coggin) liability. Mr. Wilkins testified that on the morning following the accident he met Coggin at the scene of the wreck and had conversation with him, and that Coggin stated there was no doubt in his mind but that he was responsible for the accident, that a traveling salesman...
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