Opinion
No. 31058.
March 5, 1934.
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.
APPEAL from Circuit Court of Lee County.
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 Fed. 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 drew a map of the locus of the accident, and that Coggin said to Mr. Wilkins, "You needn't worry about it, for I am directly responsible for the trucks, have a right to hire and fire them, and am responsible for them." Mr. Wilkins further testified that he asked Coggin if he did not think Morrow (the driver of the truck) was to blame, and he said if he was, that Coggin had complete control over the trucks and was responsible for their acts, having control and supervision over them.
The testimony for the defendant by Coggin and Morrow was to the effect that Morrow was an independent contractor, being paid only for the yardage of gravel delivered to the highway; that Coggin had a contract with the highway department to haul gravel for the road, varying somewhat for the distance of the haul, and that he sublet to Morrow the contract to haul at a price less than Coggin received; that Morrow was to furnish the truck and labor, do the mining, loading, and unloading of the gravel; and that Coggin had no control over the trucks, and no right to terminate the contract, except where the highway department would make complaint that the gravel was not delivered and spread in accordance with its contract with Coggin.
It was the theory of the court below that Morrow was an independent contractor, and that the testimony of Coggin and Morrow was not overcome by the testimony concerning Coggin's admissions, given by Mr. Wilkins. Coggin contradicted Mr. Wilkins as to what was said, stating that he (Coggin) did not recognize his liability, and did not state he had the right to fire and hire operators of the trucks.
We think the law is sufficiently settled in previous decisions, and that the only question for our decision here is whether the facts testified to by Mr. Wilkins were sufficient to go to the jury and to sustain a verdict upon the theory that the facts admitted by Coggin established liability. If the admissions stood alone, they would unquestionably support a verdict. The conflict in the evidence between Mr. Wilkins and Coggin as to the admissions was a question for the decision of the jury.
Accepting the admissions as having been made and as being true, we think they were sufficient to go to the jury.
We think, therefore, that the court below erred in granting the peremptory instruction, and that the case should have gone to the jury for its decision under appropriate instructions.
The judgment will therefore be reversed, and the cause remanded for a new trial.
Reversed and remanded.
Anderson, J., recused himself.