Zimmerman v. Mathews Trucking Corp., 14693.

• Decision Date: 03 July 1953
• Docket Number: No. 14693.,14693.
• Citation: 203 F.2d 864
• Parties: ZIMMERMAN v. MATHEWS TRUCKING CORP.
• Court: U.S. Court of Appeals — Eighth Circuit

203 F.2d 864 (1953)

ZIMMERMAN v. MATHEWS TRUCKING CORP.

No. 14693.

United States Court of Appeals Eighth Circuit.

April 27, 1953.

Rehearing Denied July 3, 1953.

J. H. Lookadoo, Arkadelphia, Ark. (G. W. Lookadoo, Arkadelphia, Ark., on the brief), for appellant.

J. W. Barron, Little Rock, Ark. (Wootton, Land & Matthews, Hot Springs, Ark., Eugene A. Matthews and Rose, Meek, House, Barron & Nash, Little Rock, Ark., on the brief), for appellee.

Before SANBORN, WOODROUGH, and JOHNSEN, Circuit Judges.

SANBORN, Circuit Judge.

This is an appeal from a judgment of the District Court entered June 4, 1952, granting a motion of the defendant (appellee) for judgment notwithstanding a verdict for the plaintiff (appellant) and dismissing his complaint.

The action was brought to recover damages for the death of plaintiff's wife, his own injuries and the virtual destruction of his automobile resulting from a head-on collision of his car with a motor tractor driven by Jack Anderson who was accompanied by Marion Coscia, the owner of the tractor. The collision occurred the night of March 16, 1951, near Arkadelphia, Arkansas.

The claim upon which the plaintiff's complaint was based was, in substance, that the defendant, an interstate motor carrier of freight, had, at Memphis, Tennessee, on March 16, 1951, leased the motor tractor from Coscia and had employed him to go to Fort Worth, Texas, to pick up his trailer and return to Memphis in order to transport a shipment of oleo from that place to a destination to be designated; that Coscia hired Jack Anderson to assist him in making the trip to Fort Worth and return; that Coscia and Anderson were agents, servants and employees of the defendant; and that in driving south on highway 67 near Arkadelphia, Arkansas, the tractor was negligently driven onto the wrong side of the highway, directly into the path of plaintiff's automobile going north, causing the collision and the death, injuries and damages recovery for which was sought. The defendant in its answer denied liability.

The case was tried to a jury in April, 1952. It was admitted at the trial that the injuries of the plaintiff, the death of his wife, and the damage to his car were attributable to the negligence of Anderson and Coscia in the operation of the motor tractor. The controverted issue was whether their relation to the defendant was such that it could be held responsible for their acts.

The plaintiff's evidence was to the effect that the defendant, through R. L. Staley, its manager at Memphis, had arranged with Coscia, whose tractor was in Memphis and whose trailer was in Fort Worth, to drive his tractor to Fort Worth, get his trailer and return to Memphis for the purpose of taking on a shipment of oleo and transporting it East for the defendant. The defendant's evidence was that no such arrangement had been, or could have been, made with Coscia; that Staley was not in Memphis on March 16, 1951, when the alleged oral agreement with Coscia was asserted to have been made, and that the defendant had no reason for employing Coscia to go to Fort Worth for his trailer or for leasing his equipment to transport a shipment of oleo for the defendant.

At the close of the evidence, the defendant moved for a directed verdict upon the grounds (1) that the undisputed evidence showed that Coscia was not an agent, servant or employee of the defendant at the time of the collision, but was, under the plaintiff's evidence, an independent contractor, and (2) that the plaintiff had failed to show the existence of any relationship between Coscia and the defendant which would make it legally liable for the collision and its results. The District Court denied the defendant's motion.

The court's charge contained the following instruction:

"The plaintiff contends that the said Coscia and his employee Jack W. Anderson, were traveling from Memphis, Tennessee to Fort Worth, Texas, under and by virtue of an agreement entered into between the said Coscia and the authorized representative of the defendant whereby the said Coscia was to go to Fort Worth, Texas and procure and return his trailer to Memphis, Tennessee, for the purpose of loading a quantity of oleo in said trailer and for delivery by the said Coscia for the defendant to a consignee of said oleo in the State of New Jersey or New York, and that the said shipment of oleo would be held by the defendant at or near its terminal in Memphis, Tennessee for a reasonable time to permit the said Coscia to obtain and return the trailer for the purpose of loading the oleo, and that he, Coscia, was to receive an extra allowance of 5% of the freight to cover his expenses in making the trip to Fort Worth and return. If you find from a preponderance of the evidence that on March 16, 1951, it was agreed between the said Coscia and R. L. Staley, the terminal manager of the defendant at Memphis, Tennessee, that the said Coscia would transport for the defendant from Memphis, Tennessee, to the State of New Jersey or New York the said oleo and that it was understood and agreed between said parties that the said Coscia, as a part of the agreement, should go to Fort Worth, Texas, and return his trailer to Memphis, and that as a consideration the defendant would allow the said Coscia an additional 5% of the freight charges to reimburse him for his expenses in going to Fort Worth and returning to Memphis and that the said Coscia was en route to Fort Worth pursuant to and in accordance with such agreement at the time of the collision with the plaintiff\'s automobile, then the defendant would be liable, and you will find the issues in favor of the plaintiff."

The defendant took no exception to the court's instructions. The plaintiff had requested the court to submit to the jury the question whether the relationship of the defendant and Coscia was that of master and servant. Exceptions were saved by the plaintiff to the refusal of the court to give his requested instructions.

On April 11, 1952, the jury returned a verdict for the plaintiff, awarding him $23,915.00 for his injuries and damages to his automobile, and $25,600.00 for the loss of his wife. O...