Opinion
No. 43367.
February 22, 1965.
1. Master and servant — independent contractor — evidence — liability insurance certificates admissible to prove relationship alleged.
Liability insurance certificates were competent to show course of conduct for purpose of establishing principal-agent relationship between construction company and truck driver's supervisor, where driver had been involved in collision; and admission thereof was not objectionable improper injection of insurance into case.
2. Instructions — independent contractor — refusal of instruction applicable to facts of case, error.
Trial court's exclusion of any instruction requested by defendant construction company to permit finding that supervisor of driver involved in collision was independent contractor, and not company's agent, was error where independent contractor theory was supported by competent evidence.
3. Instructions — joint adventure — instruction incomplete, and not related to evidence.
Trial court's instruction as to joint adventure, in automobile collision case, was inadequate in that it was not complete in its definition of a joint adventure, and was not related to evidence.
Headnotes as approved by Patterson, J.
APPEAL from the Circuit Court of Jones County; LUNSFORD CASEY, J.
Welch, Gibbes Graves, Laurel, for appellant.
I. Appellant was entitled to a peremptory instruction under the law of independent contractor. Bear Creek Mill Co. v. Fountain, 130 Miss. 436, 94 So. 230; Carr v. Crabtree, 212 Miss. 656, 55 So.2d 408; Cobb v. Vicksburg Hardware Co., 218 Miss. 829, 68 So.2d 98; Cook v. Wright, 177 Miss. 644, 171 So. 686; Crescent Baking Co. v. Denton, 147 Miss. 639, 112 So. 21; Crosby Lumber Manufacturing Co. v. Durham, 181 Miss. 559, 179 So. 285, 854; Hercules Powder Co. v. Westmoreland, 249 Miss. 849, 164 So.2d 471; Hutchinson-Moore Lumber Co. v. Pittman, 154 Miss. 1, 122 So. 191; Kughn v. Rex Drilling Co., 217 Miss. 434, 64 So.2d 582; Levine v. Standard Oil Co., Inc., in Kentucky, 249 Miss. 651, 163 So.2d 750; Louis Werner Sawmill Co. v. Northcutt, 161 Miss. 441, 134 So. 156; McDonald v. Hall-Neely Lumber Co., 165 Miss. 143, 147 So. 315; Masonite Corp. v. Stevens, 201 Miss. 876, 30 So.2d 77; Mississippi Power Light Co. v. Walters, 248 Miss. 206, 158 So.2d 2; Regan v. Foxworth Veneer Co., 178 Miss. 654, 174 So. 48; Simmons v. Cathey-Williford Jones Co., 220 Miss. 389, 70 So.2d 847; Larson, Workmen's Compensation Law, Sec. 43.30 p. 585.
II. Appellant was entitled to have one of its motions for mistrial sustained when appellee voluntarily injected the prejudicial liability insurance issue into the trial. Odom v. Walker, 193 Miss. 862, 11 So.2d 455; Snowden v. Skipper, 230 Miss. 684, 93 So.2d 834.
III. The jury was improperly instructed for appellee, and appellant's theory through instructions was entirely excluded. Crow v. Burgin (Miss.), 38 So. 625; Crump v. Brown, 246 Miss. 631, 151 So.2d 822; Illinois Central R. Co. v. Cole, 113 Miss. 896, 74 So. 766; J.J. Newman Lumber Co. v. Boggs, 146 Miss. 440, 111 So. 562; Lamar v. State, 64 Miss. 428, 1 So. 354; Lamar Hardware Co. v. Case, 143 Miss. 277, 107 So. 868; Lawler v. Skelton, 241 Miss. 274, 130 So.2d 565; McLeod Lumber Co. v. Anderson Mercantile Co., 105 Miss. 498, 62 So. 274; Mississippi Winn-Dixie Supermarkets v. Hughes, 247 Miss. 575, 156 So.2d 734; Murphy v. Burney (Miss.), 27 So.2d 773; Trunzler v. Shanks, 234 Miss. 735, 107 So.2d 110; Sec. 1530, Code 1942; 1 Alexander, Mississippi Jury Instructions, Sec. 87.
IV. Appellant should have been permitted to cross-examine appellee and to argue on inconsistencies and variance between her pleadings and proof. King v. Mississippi Power Light Co., 244 Miss. 486, 142 So.2d 222.
V. In view of the slight injury appellee suffered, the verdict was shocking, exorbitant and excessive, and resulted from bias, passion, prejudice and misunderstanding on the part of the jury. City of Cleveland v. Threadgill, 246 Miss. 23, 148 So.2d 670; Herrington v. Hodges, 249 Miss. 131, 161 So.2d 194; McMahan v. Herring, 236 Miss. 442, 110 So.2d 617; Spivey v. Mills-Morris Co. of Columbus, 241 Miss. 804, 133 So.2d 620; Walker v. Ferris, 241 Miss. 63, 128 So.2d 865.
Maxey Clark, Laurel; John D. Kervin, Collins, for appellee.
I. Appellant was not entitled to a peremptory instruction under the law of independent contractor. Boxwell v. Champagne, 229 Miss. 355, 91 So.2d 256; Hayes v. Muller (La.), 158 So.2d 191; Sample v. Romine, 193 Miss. 706, 8 So.2d 257; 30 Am. Jur., Joint Adventurers, 982.
II. Appellant was not entitled to have one of its motions for mistrial sustained when appellee voluntarily injected the prejudicial liability insurance issue into the trial. Gulf Refining Co. v. Nations, 167 Miss. 315, 140 So. 327; Long-Bell Lumber Sales Corp. v. Perritt, 178 Miss. 194, 172 So. 747; Pan-American Petroleum Corp. v. Pate, 157 Miss. 822, 126 So. 480.
III. The jury was properly instructed for appellee, and appellant's theory through instructions was not entirely excluded.
IV. Appellant should not have been permitted to cross-examine appellee and to argue on inconsistencies and variance between her pleadings and proof. Co-operative Life Assn. of Mississippi v. Leflore, 53 Miss. 1; Crump v. Gerock, 40 Miss. 765; Meyer v. Blakemore, 54 Miss. 570.
V. In view of the injury appellee suffered, the verdict was not shocking, exorbitant and excessive, and resulted from bias, passion, prejudice and misunderstanding on the part of the jury. Ashly v. Dalton, 119 Miss. 672, 81 So. 488.
This is an appeal by Luke Construction Co., Inc., only, from a judgment against it, J.W. Hortman and Sam B. Jones, defendants, in the sum of $14,170.00 as the result of an automobile collision on May 4, 1963, wherein the plaintiff was injured.
Miss Jernigan, the plaintiff below, was the driver of one automobile involved in the accident, and J.W. Hortman was the driver of the other. That Hortman's negligence was the cause of the accident is not questioned. His relationship, if any, to Luke Construction Co., Inc., hereinafter referred to as Luke, is the critical issue for determination and is dependent upon the relationship between Jones and Luke.
The plaintiff alleges this relationship to be one of agency. The declaration reads: "On or about May 4, 1963, the Defendant Corporation caused to be operated an automobile owned by its Mississippi Superintendent, Sam B. Jones, for the purpose of transporting employees of said corporation to and from work and for the purpose of carrying on an Oil Field Service Business had in its employ the Defendant Hortman, who at all times herein complained of was the agent and servant of the Defendant Corporation, acting within the scope of his authority and in the furtherance of his master's business." It is evident the plaintiff's theory of the case was that of master and servant, that Luke was the master with the power of directing the activities of Hortman, its employee and agent, and that it did so through Jones, its superintendent-employee.
In his answer Luke denied the above-quoted paragraph of the declaration in its entirety and by way of further defense averred the relationship between it and Jones to be that of an independent contractor; that Jones was not the servant or agent of Luke, and that Hortman was the employee of Jones, the independent contractor. It denied any agency relationship between it and Jones and between it and Hortman and denied that on the occasion of the accident the work or the transportation of Hortman was in the scope of any employment with Luke, but averred that it was exclusively in furtherance of the business of Jones.
The defendants, Hortman and Jones, admitted the above-quoted paragraph of the declaration as to master and servant and agency. They admitted the negligence of Hortman, but denied that the plaintiff was injured and denied any indebtedness to the plaintiff.
The plaintiff's proof, which included the introduction of certificates of liability insurance to show by a course of conduct the relationship of master and servant as between Luke and Jones, conformed to the allegations of the declaration. At the conclusion of plaintiff's testimony Luke moved the court for a peremptory instruction as did Jones. The court responded to these motions in these words, "On the motion for directed verdict as to Luke Construction Company and as to Sam B. Jones, taking into consideration all the evidence as being true, that was offered on behalf of plaintiff, and all reasonable inferences, the Court is of the opinion that there has been established a joint venture between Sam B. Jones and Luke Construction Company, and that the — if there is liability, it is established as to them jointly. The motion is denied."
The plaintiff did not amend, or offer to amend, his pleadings to coincide to the theory of the case as stated by the court. The defendants, Jones and Hortman, though they testified as adverse witnesses on call of the plaintiff, rested their case at this juncture without further offer of proof. Luke's proof was in accord with the denials and averments of his answer to the effect that Jones was an independent contractor.
At the conclusion of the testimony plaintiff obtained instructions favoring the theory that the parties were joint adventurers as had been expressed by the court. Each instruction requested by the defendant, Luke, on the independent contractor theory was refused. Jones and Hortman requested no instructions, neither did they, or either of them, move for a new trial following the adverse judgment as did Luke.
Luke assigns as error:
(1) The appellant was entitled to have its motion for a mistrial sustained when plaintiff voluntarily injected the prejudicial liability insurance into the trial.
(2) The jury was improperly instructed for appellee, and appellant's theory of the case through instructions was entirely excluded.
(Hn 1) We are of the opinion that the first assignment of error is not well taken since the certificates of insurance are indicative of a course of conduct which was competent evidence on the issue of whether or not Jones was the agent of Luke or was an independent contractor. Long-Bell v. Perritt, 178 Miss. 194, 172 So. 747 (1937); Pan-Am v. Pate, 157 Miss. 822, 126 So. 480 (1930); and Finkbine v. Cunningham, 101 Miss. 292, 57 So. 916 (1911).
(Hn 2) The second assignment of error that the instructions setting forth the appellant's theory of defense were entirely excluded is well taken and in our opinion requires a reversal of the case. Each instruction, other than one as to the form of the verdict, requested by Luke which would have permitted the jury to find, if warranted by the evidence, separately for Luke and against Jones and Hortman consistent with the theory of independent contractor, (which was put in issue by a responsive answer denying the alleged relationship of master and servant advanced by the declaration), was refused by the court. Since there was competent evidence offered by Luke in support of his theory that Jones was in fact an independent contractor, this evidence should have been submitted, under proper instructions, for consideration by the jury. In Murphy v. Burney, 27 So.2d 773 (Miss. 1946) we stated: ". . . a party has the right to embody his theory of the case in his instruction if there is testimony to support it and if made conditional upon the jury's finding that such facts existed." In Crow v. Burgin, 38 So. 625 (Miss. 1905) we find the following headnote which accurately portrays the court's holding as to this point, "1. Where a defendant has two distinct defenses, each of which is supported by evidence sufficient, if believed by the jury, to entitle him to a verdict, he is entitled to have each fairly presented and submitted under proper instructions to the jury." See also Newman v. Boggs, 146 Miss. 440, 111 So. 562 (1927); Lamar v. State, 64 Miss. 428, 1 So. 354 (1887).
(Hn 3) Inasmuch as the case must be reversed for a new trial, we think it proper to call attention to the second instruction given for the plaintiff, "The Court instructs the jury for the plaintiff that under the law a joint adventure is an enterprise undertaken by more than one person to carry out a single business enterprise for profit," which needs modification in that it is not complete in its definition of a joint adventure and it is abstract in that it does not relate to the evidence.
The cause is reversed and remanded for a new trial under appropriate, amended pleadings, if desired by the plaintiff, but if amendment is not desired, then for a new trial under the theory expressed in the present amended declaration of September 27, 1963.
Reversed and remanded.
Lee, C.J., and Ethridge, Rogers, and Jones, JJ., concur.