Williamson v. Inzer

• Decision Date: 05 December 1960
• Docket Number: No. 41608,41608
• Citation: Williamson v. Inzer, 125 So.2d 77, 239 Miss. 707 (Miss. 1960)
• Parties: Harold G. WILLIAMSON v. Wilbur C. INZER.
• Court: Mississippi Supreme Court

Page 77

125 So.2d 77

239 Miss. 707

Harold G. WILLIAMSON v. Wilbur C. INZER.

No. 41608.

Supreme Court of Mississippi.

Dec. 5, 1960.

Adams, Long & Adams, Tupelo, Miller & Adams, Meridian, for appellant.

Lumpkin, Holland & Ray, Tupelo, for appellee.

GILLESPIE, Justice.

Harold G. Williamson, appellant, plaintiff below, sued Jack L. Mabus, Jim Inzer and Wilbur C. Inzer for personal injuries arising out of an automobile-truck collision. The declaration alleged that a truck driven by Mabus was negligently driven against the rear of Williamson's vehicle; that Mabus was operating the truck for and on behalf of Jim Inzer and Wilbur C. Inzer as their employee. When plaintiff rested his case the trial court sustained a motion to exclude the evidence as to Wilbur C. Inzer, and the jury was instructed accordingly. The case proceeded to a conclusion and the jury found for plaintiff against Mabus and Jim Inzer, neither of whom appealed. Williamson appealed to this Court and assigned as error the action of the trial court in directing a verdict in favor of Wilbur C. Inzer.

The trial court granted the directed verdict on the ground that plaintiff failed to prove Mabus was the servant of Wilbur C. Inzer.

When at the conclusion of plaintiff's case a motion is made to exclude the evidence and direct a verdict for defendant, the court must look solely to the testimony in behalf of plaintiff and accept that testimony as true; and if the facts testified to, along with reasonable inferences which could be drawn therefrom, would support a verdict for plaintiff, the directed verdict should not be given. And it is necessary to keep in mind that when such motion is made the question is not where lies the weight or overwhelming weight of the evidence, for the testimony must be considered in the light most favorable to the party against whom the motion is made. Buntyn v. Robinson, 233 Miss. 360, 102 So.2d 126.

The evidence showed that Wilbur C. Inzer, appellee, had been engaged for a number of years in the wholesale oil business as a distributor of petroleum products. He also owned a number of service stations. Until about a year before the accident here involved, Jim Inzer had been a truck driver in the employ of appellee on a weekly salary. About August 1956, Jim Inzer began operating a service station located adjacent to but in a separate building from the main building housing the Service Oil Company, the name under which appellee operated his business. After Jim Inzer took over the operation of the service station the receipts of the service station were picked up daily by appellee's bookkeeper and deposited in the bank account of Service Oil Company, the bank account of appellee. The expenses of operating the service station were paid out of the Service Oil Company bank account. Jim Inzer was paid $50 per week from this account. Mabus, who was on business for the service station when the accident in question occurred, was paid by checks drawn on the Service Oil Company bank account, except that he was sometimes paid in cash from the cash register and a slip recording such fact was made. Appellee owned the real property on which is situated the service station, together with the...