Opinion
No. 32283.
January 11, 1937.
1. AUTOMOBILES.
Where owner of disabled cream truck employed wrecker to tow truck and first wrecker became disabled, and owner of first wrecker employed second wrecker to do towing, driver of second wrecker had full control of details and methods of towing and was not subject to control of owner or driver of cream truck so as to impose liability on latter for injuries sustained by passenger in truck which was forced off the road by wrecker while it was towing cream truck.
2. VENUE.
In suit by passenger in log truck for injuries sustained when log truck, which came over hill on wrong side of highway, was allegedly forced off of highway by wrecker traveling in middle of highway, court did not err in overruling defendants' motions for change of venue on ground driver of truck, who was the only resident defendant, had been fraudulently joined for purpose of fixing venue.
3. AUTOMOBILES.
That driver of log truck in which passenger was riding was negligent in operation of truck did not relieve driver of wrecker driving in opposite direction of liability to passenger in truck for negligence in dangerously obstructing highway, since he had no right to assume that other persons using highway would keep their vehicles under constant control and obey traffic laws.
4. AUTOMOBILES.
In suit by passenger in log truck for injuries sustained when log truck which came over hill on wrong side of highway was allegedly forced off of highway by wrecker traveling in middle of highway, whether driver of wrecker was guilty of negligence which proximately contributed to injury held for jury.
5. TRIAL.
Fact that plaintiff's instructions, if considered alone, were subject to criticism, held not reversible error, where, when read altogether, they presented law applicable to facts with reasonable accuracy.
6. DAMAGES.
Twenty-five thousand dollars held not excessive for almost fatal injuries to man about twenty-eight, use of whose arm was permanently impaired, leg permanently shortened about three inches, foot and ankle permanently injured, and nervous system permanently impaired.
7. AUTOMOBILES.
In suit by passenger of log truck for injuries sustained when log truck, which came over hill on wrong side of highway, was allegedly forced off of highway by wrecker traveling in middle of highway, negligence of driver of log truck and whether it was proximate cause of plaintiff's injuries held for jury.
APPEAL from the circuit court of Choctaw county. HON. JNO. F. ALLEN, Judge.
John F. Frierson, of Columbus, for appellants, Cox and Hemby.
We maintain first that there is no evidence whatever to show any negligence on the part of either Turner or William Hemby, and second, that even the testimony of the plaintiff demonstrates gross negligence on the part of Harris and that his gross negligence, wrecking the truck as he did against the bank, coming over the top of the hill without his car under control, in complete violation of the rules of the road as designated in section 5571 of the Code of 1930, constitute the sole proximate cause of the accident.
In determining what is proximate cause the true rule is that the injury must be the natural and probable consequence of the negligence; such a consequence as under the surrounding circumstances of the case might and ought to have been foreseen by the wrongdoer as likely to flow from his act.
South Side Passenger Ry. v. Trich, 2 A.S.R. 672; Kreigh v. Westinghouse C.K. Co., 152 Fed. 120, 11 L.R.A. (N.S.) 684; Cooley on Torts (3 Ed.), 73.
Plaintiff in an action for personal injuries must show not only that the defendant was negligent, but also that such negligence was the proximate cause of the injury.
O'Mally v. Eagan, 77 A.L.R. 582; Claypool v. Wigmore, 71 N.E. 509; 16 Am. Eng. Encyc. of Law, page 436; Washington v. Baltimore R.R. Co., 7 W. Va. 190; Lewis v. Flint, etc., R.R. Co., 54 Mich. 55, 19 N.E. 744.
The actions of John Turner and the position of his wrecker even as alleged and testified to on the part of the plaintiff (1) do not constitute such negligence as could be held, and (2) even if negligence, do not constitute any contributing proximate cause of the injury. It is manifest that the negligence of Harris was a, not to say the, proximate cause of the injury.
The supreme courts have held that the driver or owner of a motor vehicle must show due care and observation of the statute.
Flint v. Fondren, 122 Miss. 248, 84 So. 188; Cumberland T. T. Co. v. Woodham, 99 Miss. 318, 54 So. 890.
It is elemental that, in order that a wrongdoer may be held liable, even in a civil action, for negligence, it is necessary to show that the injury complained of was the natural and probable result of the negligence.
Jabron v. State, 172 Miss. 135, 159 So. 406; Williams v. Lumpkin, 169 Miss. 146, 152 So. 842.
Precaution is the duty only so far as there is reason for apprehension. Ordinary care of a reasonably prudent man does not demand a person should prevision or anticipate an unusual, improbable, or extraordinary occurrence though such happening is within the range of possibility.
I.C.R.R. Co. v. Bloodworth, 166 Miss. 602, 145 So. 333; Burnside v. Gulf Refining Co., 166 Miss. 460, 148 So. 219; D'Antoni v. Albritton, 156 Miss. 758, 126 So. 836; 54 C.J. 109; Hellan v. Supply Laundry Co., 94 Wn. 683, 163 P. 9.
The operator of a motor vehicle is not bound to anticipate negligence of those in charge of other vehicles; but in the absence of any circumstances which reasonably should put him on notice to the contrary, he has the right to assume and to act on the assumption that other users of the highway will exercise reasonable and ordinary care and observe the rules of the road and traffic regulations.
Berry on Automobiles, page 175; 3 Huddy on Automobiles (9 Ed.), sec. 180; 46 C.J. 884; Wilson v. Mullen, 11 Tenn. App. 327; I.C.R.R. Co. v. Oswald, 338 Ill. 270, 170 N.E. 247; Harnett v. Boston Store, 265 Ill. 331, 106 N.E. 837, L.R.A. 1915C 460; Chicago Hair Bristle Co. v. Mueller, 203 Ill. 558, 68 N.E. 51.
Cox was not the master of Turner. C.L. Jones was an independent contractor.
Cox's truck was disabled and completely at the mercy of the wrecker which was pulling it. The rate of speed, the position in the road, when to start and when to stop were all entirely within the control of Turner, the servant of Jones, and not under any circumstances within the control of Hemby, Cox's servant. Any authority that Hemby might have attempted to exercise over Turner would have been a usurpation.
He is deemed to be a master who has supervision, choice, control and direction of the servant, and whose will the servant represents, not merely in the ultimate result of the work, but in the details.
39 C.J. 33, 1274, 1277; Wagner v. Larsen, 174 Wis. 26, 182 N.W. 336; Donovan v. Laing, etc., Constr. Syndicate, Ltd., 1 Q.B. 629; Peach v. Bruno, 224 Mass. 447, 113 N.E. 279; Shepard v. Jacobs, 204 Mass. 110, 90 N.E. 392, 26 L.R.A. (N.S.) 442, 134 Am. St. Rep. 648; 63 C.J. 21; The Fort George, 183 F. 731; Societe Des Voiliers Francais v. Oregon R. Nav. Co., 178 F. 324; Densby v. Bartlett, 318 Ill. 616, 149 N.E. 591; Sargent Paint Co. v. Petrovitzky, 71 Ind. App. 353, 124 N.E. 881; Kisner v. Jackson, 159 Miss. 424, 132 So. 90; Hutchinson-Moore Lbr. Co. v. Pittman, 154 Miss. 1, 122 So. 191; McDonald v. Hall Neely Lbr. Co., 165 Miss. 143, 147 So. 315; Isaacs v. Printz Wilds, 133 Miss. 195, 97 So. 558.
The preponderance of evidence establishes non-liability of defendants.
The general rule is that the burden of proof rests upon the party who has the affirmative of the issue, as determined by the pleadings, or where there are no pleadings, by the nature of the investigation. This rule is founded upon the obvious purpose of facilitating justice by serving the convenience of the court and as the rule of burden of proof is fixed rule of law the burden never shifts from the party having the affirmative of the issue.
22 C.J. 70, 71; Kyle Williams v. Calmes, 1 How. 121; Babbitt Motor Vehicle Law (4 Ed.) 1614-16, sec. 2233, and 1618, sec. 2235; Flint v. Fondren, 122 Miss. 148, 84 So. 188; College Baking Co. v. Wicker, 166 Miss. 264, 142 So. 8; Southern Ry. v. Floyd, 99 Miss. 519, 55 So. 287.
The peremptory instructions should have been granted for all three of these defendants.
We respectfully submit that the whole testimony of the case shows first, gross negligence of Harris, so gross as to make his negligence the sole proximate cause of the injury sustained by appellee; and second, the testimony of the two defendants Turner and Hemby, and of two disinterested parties, Dan Nelson, the negro riding with Turner, and Mrs. Kemp, shows by a clear preponderance of the evidence that there was no negligence whatever in the operation of the wrecker.
Hull v. Littauer, 162 N.Y. 569, 57 N.E. 102.
Court may judicially notice those prominent facts regarding automobiles and trucks which are so distinctly capable of intelligent observation as to be safely regarded as certain and indisputable facts to all persons of average understanding and with average opportunities of observation.
Luckett v. La. Oil Corp., 171 Miss. 570, 158 So. 199; 15 R.C.L. 1059; 23 C.J. 58, 59; Babbitt Motor Vehicle Law (4 Ed.), page 1602, sec. 2216; Hopkins v. Kissinger, 160 N.E. 916; New Orleans N.E.R. Co. v. Holsomback, 168 Miss. 493, 151 So. 720; Williams v. Lumpkin, 169 Miss. 146, 152 So. 842.
The right of a citizen to be sued in the county of his residence is a valuable right; it is a right of importance to him — it is not a technical right. Where an action is brought in a county where any one of several defendants resides, the county must be one where a material defendant resides; he must be a proper party — he must not be joined for the sole purpose of giving the court of any county jurisdiction. If he is not a material defendant, and is joined as such by the plaintiff for the fraudulent purpose of giving the court jurisdiction, the case will be dismissed or transferred to the proper county.
Trolio v. Nichols, 160 Miss. 611; 40 Cyc. 97; 15 C.J. 800; Tchula Commercial Co. v. Jackson 147 Miss. 296, 111 So. 874.
In the case at bar the motion for a change of venue was made immediately after the peremptory instruction had been granted in favor of Harris and in our motion we alleged lack of good faith in bringing the suit in Choctaw county and also that this lack of good faith is evidenced by the testimony of L.L. Dempsey, plaintiff, in failing to testify as to the particular allegations set out in the said declaration in reference to the negligence of O.N. Harris.
67 C.J. 110, 111; Maguire v. Peoria and Peking Union R.R. Co., 264 Ill. App. 333.
We respectfully submit that the evidence and circumstances in this case establish that the local defendant, resident of Choctaw county, was fraudulently joined for the purpose of securing jurisdiction in Choctaw county "and not for the purpose of obtaining a judgment against the resident defendant."
Gunnoe v. West Virginia Poultry Co-Operative Assn., 174 S.E. 691, 93 A.L.R. 944; Section 495, Code of 1930; Pike County Coal Co. v. Farabee, 137 N.E. 680; Gorey v. Black, 125 N.E. 126.
The verdict is excessive.
Sussman v. Sea Food Co., 130 Miss. 632, 94 So. 795; S.H. Kress Co. v. Sharp, 126 So. 650, 68 A.L.R. 167; Palmer v. Security Trust Co., 242 Mich. 163, 218 N.W. 677, 60 A.L.R. 1392.
B.A. Lincoln, of Columbus, for appellant, John Turner.
Inasmuch as Mr. John F. Frierson, attorney for D.S. Cox and William Hemby, has prepared and filed an extensive brief in this cause and it covers all the suggestions of error that might be embraced by John Turner, appellant, and has fully discussed the principles of law and cited the cases for the grounds for reversal in behalf of John Turner, and has only the additional ground in behalf of D.S. Cox and William Hemby, appellants, that the said John Turner was not the servant of said D.S. Cox, I, as the attorney of record for John Turner, appellant, do hereby adopt the brief of Mr. Frierson so far as the same is applicable to the defense of John Turner in this matter. J. Wesley Miller, of Ackerman, and Jas. A. Cunningham, of Booneville, for appellee.
The appellant Wm. Hemby having been entrusted with the task of operating this truck of D.S. Cox, who was doing business in the name of the Columbus Ice Cream Creamery Company, was fully authorized under the law to procure such necessary help as the unforeseen contingency demanded, and did procure the colored boy Jno. Turner to assist him in bringing in this truck, and it was also authorized under the law because it was dealing with an emergency, and furthermore, this matter is set at rest by the appellant Cox, who ratified the actions of Hemby in procuring the help of Turner by paying Turner's master for the services rendered by Turner on the job, as testified to by C.L. Jones and which was not in any way contradicted.
39 C.J., secs. 1458-9, 1460; 2 C.J., Agency, sec. 347, page 688, sec. 287, page 643, sec. 539, page 855, and sec. 34, page 438; Wilcox v. Ruth, 9 S. M. 476; L. Mayer Co. v. McLure, 36 Miss. 389; Callahan Construction Co. v. Reyburn, 69 So. 669; Pan-American Petroleum Corp. v. Pate, 126 So. 480; Gulf Refining Co. v. Nations, 145 So. 327; Miss. Power Light Co. v. Smith, 153 So. 376.
The agent in charge of a chattel under such circumstances as Hemby was in charge of the appellant Cox's truck, Hemby's action in employing Turner's aid and making Turner the agent of Cox as well as himself, is also justified under the theory that Hemby was acting in an unforeseen contingency making it reasonably necessary.
1 Restatement of the Law of Agency, sec. 80; Yazoo-Mississippi Valley R.R. Co. v. Transberry, 53 So. 389.
After Hemby procured the service of Jno. Turner and the wrecker at a time and under circumstances when neither Wm. Hemby's master nor Jno. Turner's master knew anything about it, both masters ratified it afterwards when D.S. Cox or the Ice Cream Creamery Company paid Jno. Turner's master for the services of Jno. Turner, and Turner's master accepted pay for the services. This ratification subjected D.S. Cox to liability for the tortious acts of Jno. Turner in the services rendered in assisting Hemby, the same as if Cox had procured him in the first place.
1 Restatement of the Law of Agency, sec. 218; 21 R.C.L. 99; Southern Ry. v. Garrett, 101 So. 348.
It is the contention of appellants that D.S. Cox could not be held liable in any event for the tortious acts of Jno. Turner, colored, in rendering this cooperation to Cox's general agent, Hemby, for the reason that Turner is alleged to be the agent of a different general master, C.L. Jones, and that his actions were not directed by Hemby. This position is clearly error for the reason that Hemby, the man in charge, therefore necessarily the alter ego of the master in that particular work, entrusted the steering of the wrecker to Jno. Turner while he cooperated with him in steering the truck, and knowledge of Turner's dangerous position of the road could not escape Hemby.
1 Restatement of the Law of Agency, sec. 214; Slaughter v. Holsomback, 147 So. 318; Texas Co. v. Mills, 156 So. 866; Sawmill Construction Co. v. Bright, Bright v. Finkbine Lbr. Co., 77 So. 316; Westover v. Hoover, 88 Neb. 201, 129 N.W. 285; Wiest v. Coal Creek R. Co., 42 Wn. 176, 84 P. 725.
The master is liable for unauthorized transfer of custody of instrumentality.
Isaacs v. Prince Wilds, 97 So. 558.
A master who has entrusted a servant with an instrumentality is subject to liability for harm caused by its negligent management by one to whom the servant entrusts its custody to serve the purposes of the master if the servant should realize that there is an undue risk that such person will harm others by its management.
1 Restatement of the Law of Agency, sec. 241; Slaughter v. Holsomback, 147 So. 318.
We fail to understand how learned counsel for appellants can afford to press upon this court the position they take on there being no proximate cause. True, appellants offered testimony tending to show that appellee Harris was grossly negligent in coming over the crest of this hill with a heavily loaded truck, and they expressed the idea that because his conduct, according to some of the testimony offered by appellant, was obsessed with gross negligence, that this constituted his conduct "the sole proximate cause of appellee's injuries." We think the general doctrine of proximate cause clarified by section 56, First Volume of Thompson's Complete Revision of the Statement of the Law of Negligence, which is quoted and approved by the Supreme Court of Mississippi in I.C.R.R. Co. v. Wright, 100 So. 1; this question is further elucidated by section 481, 45 C.J. 907.
Gross negligence on the part of the injured party does not defeat a recovery from the negligent actor whose negligence proximately causes or proximately contributes to the injury.
Yazoo M.V.R. Co. v. Williams, 114 Miss. 236, 74 So. 835; Mobile Ohio R.R. Co. v. Campbell, 114 Miss. 803, 75 So. 554; Majors v. Okolona, Houston Calhoun City R.R. Co., 165 So. 416.
This court has held that the injured party may recover damages where the defendant is guilty of negligence proximately contributing to the injury, even though the injured person be guilty of gross negligence proximately contributing to the injury. In such case the negligence of the injured party merely goes to the diminution of damages.
Y. M.V.R.R. Co. v. Williams, 114 Miss. 236, 74 So. 835; Dantzler Shipbuilding Dry Dock Co. v. Hurley, 81 So. 406; Tendall v. Davis, 91 So. 701; Majors v. O.H. C. City R.R. Co., 165 So. 416.
If the testimony of appellee's witnesses are to be believed, and the jury believed them, this was nothing short of a death trap set just over the crest of the hill on a winding, crooked road. The court cannot escape the reason and justice of the jury's verdict that this constituted negligence, and that this was the proximate cause of this man's injury.
Pascagoula Street Ry. Power Co. v. MacEachern, 69 So. 185; Chadwick v. Bush, 163 So. 823.
There is no statute on the statute books justifying the conduct of these appellants manifested by the evidence offered by the appellee, but, on the contrary, they were charged with the common knowledge under the authorities cited by learned counsel for appellant on that subject in their brief. The public traffic coming over the crest of the hill would have a tendency to pass on the right side, and such a blocking as they were maintaining might reasonably be expected to throw such traffic in confusion and bring about an emergency such as that reported in Mississippi Central Ry. Co. v. Aultman, 160 So. 737, where innocent people shall necessarily be exposed to serious danger; and furthermore, they had notice that it is positively unlawful, not only under the rules of the common law, but that section 6315 of the Annotated Code of 1930 makes it unlawful to block the highway by any means or in any way without immediately removing such blocking, and that such statute prescribes as a matter of law that they shall be liable for all damage to third persons growing out of a violation of such a statute. Getting at a measurement of their liability under the common law, we respectfully cite 2 Restatement of the Law of Torts, sec. 302.
Terry v. Smiley, 133 So. 662; Daniel v. Livingstone, 150 So. 662; Aycock v. Burnett, 128 So. 100.
The doctrine applies to Hemby and Turner, and while they did not see another car approaching over the hill, they had every reason to apprehend that one would top the hill, and it is common knowledge the public traffic is frequently infected with fast propelled motor vehicles, and these appellants should have exercised that ordinary care to the public traffic of keeping this dangerous place open so such traffic could pass without hazard.
At the return term of the second week in February 1936 all of the defendants appeared and the appellants severally demurred to the declaration, and their demurrer was overruled, and they joined issue with a plea of the general issue. No objection whatever was entered at being joined with O.N. Harris in the declaration as a joint tortfeasor, but all the defendants proceeded to trial in an orderly and regular way. The appellants are charged with the provisions of section 495 of the Annotated Code of 1930, and with that clause which provides that where citizens of another county may be wrongfully brought in, that "the venue shall be changed on his application before the jury is impanelled to the county of his household and residence."
Read v. Renaud, 6 S. M. 78; I.C.R.R. Co. v. Harris, 38 So. 225.
Waiver in legal proceedings is a matter of law and is clearly so in this case.
2 Thompson on Trials (2 Ed.), sec. 1438, page 1109.
There is no policy of the law of procedure better settled in Mississippi than that public policy of the courts which holds that parties litigant have waived error where both parties participate in an error.
A. V. Ry. v. Kelly, 88 So. 707; Hauer v. Davidson, 74 So. 621; Hairston v. Montgomery, 59 So. 793; Liverpool London Globe Ins. Co. v. Van Os and Suster, 63 Miss. 431; Wilson v. Zook, 13 So. 351; Clisby v. M. O.R.R. Co., 29 So. 913; Y. M.V.R.R. Co. v. Schraag, 36 So. 193; I.C.R.R. Co. v. Jones, 16 So. 300; Green City Mfg. Co. v. Blalack, 18 So. 800; Y. M.V.R.R. v. Williams, 39 So. 489.
Appellants' assignment of error on the part of the lower court in not setting aside the verdict because excessive, is not well founded.
These appellants have no right to expect this court, nor does any litigant have any right to expect any court, to ignore the evidence in a given case on the amount of damages; particularly is this true when the evidence stands uncontradicted.
Houston E. W.T. Ry. v. Chambers, 279 S.W. 290.
The fact that the verdict in this case was for twenty-five thousand dollars did not deter the trial court from doing his full duty and in declining to disturb the verdict of the jury, for the reason that it was amply justified by the evidence.
Rosenweigh v. Hines, 285 A. 622; Looney v. Norfolk Western R.R. Co., 135 S.E. 262; Warfield National Gas Co. v. Wright, 54 S.W.2d 666; Fried v. New York, N.H. H.R.R. Co., 230 N.Y. 619, 130 N.E. 917; Charleston v. Payne, 186 N.W. 291; Eckert v. C.R.I.P.R.R. Co., 160 N.W. 1020; Detroit Taxicab Transfer Co. v. Pratt, C.C.A. 6 2d F. 193; Davis v. McCree, 299 F. 142; McKeon v. Delaware L. W.R.R. Co., 127 A. 34; Christman v. Union Ry. of N.Y., 2 N.Y. Supp. 803; Kress Co. v. Sharp, 131 So. 412; Masonite Corp. v. Lochridge, 140 So. 223; St. Louis San Francisco R.R. Co. v. Bridges, 131 So. 99; Y. M.V.R.R. Co. v. Wallace, 45 So. 857; St. Louis San Francisco R.R. Co. v. Hays, 101 So. 548; White v. Thornton, 120 So. 914.
J.S. Savage, of Ackerman, for appellee, Harris.
Appellants complain because O.N. Harris was discharged from liability. In answer to this we simply say that the whole testimony of L.L. Dempsey, appellee, as well as the uncontradicted testimony of O.N. Harris, appellee, exonerated this appellee from all blame.
It is elementary law in Mississippi that one joint tortfeasor has no right to complain because another joint tort-feasor has been granted a directed verdict and discharged. D.S. Cox, nor any other defendant in the court below has any right of appeal against O.N. Harris and their appeal should be dismissed for this reason.
Argued orally by John F. Frierson, for appellant, and by J.A. Cunningham, for appellee.
This is a suit for damages for personal injuries sustained by the appellee, L.L. Dempsey, as the result of the alleged negligence of D.S. Cox, owner of a cream truck; William Hemby, employee of D.S. Cox and driver of the cream truck; C.L. Jones, owner of a wrecker which was towing the said cream truck; John Turner, an employee of C.L. Jones and the driver of the said wrecker; and O.N. Harris, the owner and operator of a log truck on which the appellee was riding when he sustained his injury. At the conclusion of the evidence offered by the appellee, each of the defendants filed a separate motion to exclude the testimony and direct a judgment in his favor, and these motions were sustained as to O.N. Harris and C.L. Jones and overruled as to the others. Upon the entire evidence offered by the respective parties the cause was submitted to the jury and there was a verdict and judgment for twenty-five thousand dollars against the three remaining defendants.
The facts necessary to be here stated are, in substance, as follows: A cream truck owned and operated by the appellant D.S. Cox became disabled on a public highway near Winona, Miss. The appellant William Hemby, who was the driver of the truck telephoned to the creamery owned and operated by Cox at Columbus, Miss., and requested that a wrecker be sent out to tow the disabled truck to Columbus. Cox's office at Columbus then directed Joe Ross Gentry, who operated a wrecker service, to go to the relief of Hemby. Gentry started to the scene with his wrecker and, when he reached Starkville, the wrecker developed tire trouble, and Gentry then telephoned to the place of business of C.L. Jones in Columbus and requested that tires be sent to him at Starkville. Jones' wrecker, in charge of the appellant John Turner, then carried tires to Starkville, but on reaching Gentry's wrecker it was found that they were insufficient. Gentry then directed Turner to proceed with Jones' wrecker to the disabled truck and bring it into Columbus.
When the Jones' wrecker, in charge of John Turner, reached the disabled truck, it was fastened on to the truck by a chain and towed toward Columbus, with John Turner driving the wrecker and William Hemby steering the cream truck. While proceeding in this manner up a hill, and when about sixty feet from the top of the hill, a log truck loaded with about seven and one-half tons of wooden blocks came over the hill on the wrong side of the road at a speed of about twenty-five miles an hour. The appellee was riding in the cab of this log truck by the side of O.N. Harris his employer, and the owner and driver thereof. The truck came on down the hill until it reached a point about fifteen or twenty feet from the wrecker, when it suddenly turned to the right and skidded on a diagonal line from the center of the road into an embankment — a distance of about thirty-five feet. The head-on impact of the truck and the embankment was of such force as to telescope the cab and throw the heavy blocks of wood onto the occupants thereof and seriously injure both of them.
The facts stated above are not controverted, but the testimony bearing upon the position of the respective vehicles just before and at the time of the accident is sharply conflicting. Both the appellee and O.N. Harris, who was offered as a witness in his behalf, admitted that the log truck came over the top of the hill on the inside of a curve and on the wrong side of the road, but they both testified when they saw the wrecker coming up the hill the log truck was immediately turned to the right side of the road; and that the wrecker was coming slowly up the hill, a little to its left side of the center of the road. Harris testified that upon being thus suddenly confronted with this wrecker, practically in the center of the road, his first impulse was that he should turn to its left and attempt to pass on that side of the wrecker, but he realized that the rear of the cream truck was too close to the embankment to permit him to do so, and he attempted to pass on his right side of the road; that there was not sufficient room to safely pass on either side of the wrecker; and that in attempting to do so he applied his brakes, pulled to his right onto the edge of the drain, or ditch, and skidded into the embankment.
The testimony for the defendants was to the effect that the wrecker was proceeding slowly up the hill on its right side of the road, when the log truck came over the top of the hill on the wrong side of the road at a high speed; that the log truck came on down the hill at a high speed until it was in about twenty feet of the wrecker, when it suddenly cut across the road with its wheels locked and went head-on into the embankment.
Upon the above-stated facts as to the liability of D.S. Cox, the owner of the cream truck, and William Hemby, his employee, who was in control of the truck, the decisive question is whether or not the appellant Cox was the master of John Turner, or, in other words, whether C.L. Jones was an independent contractor in the operation of the wrecker in towing the truck.
As to D.S. Cox and Hemby the declaration charged that the movements of the wrecker and truck were under the sole direction of the appellant Hemby, the agent and employee of Cox, that in the operation of towing the truck John Turner, the general agent of Jones, was a subagent of Cox and subject entirely to the supervision, control, and direction of Cox through his agent Hemby, and that these appellants were grossly negligent in allowing John Turner, the agent of Jones, to drive the wrecker in the center of the highway, or in a place or position in the highway that would endanger travelers attempting to pass the wrecker and truck, and that they were grossly negligent in failing to require the said Turner to drive his wrecker in a proper and safe position on the highway.
When the cream truck became disabled on the highway, the driver of the truck requested his employer to send a wrecker out to tow the truck to its destination, and thereupon Cox, the owner of the truck, employed a third party, who was engaged in the business of operating wreckers, to perform this service. After starting upon the performance of the service for which he had been employed, the owner of the first wrecker, without the knowledge of Cox or C.L. Jones, substituted a wrecker owned by the said Jones to perform the service for which he had been employed. The service, or net result for which Cox contracted, was the removal of his disabled truck to its destination at Columbus. Jones' wrecker in charge of his agent and employee undertook the performance of this service, and for the service Jones afterwards accepted payment in full from Cox. The evidence shows, as would be the natural conclusion from the circumstances, that the employee of Jones had full control of the details of the means and methods by which the service was performed, and that in the performance of his duties he was not subject to be controlled, or subject to the right of control, by Cox or the employee of Cox.
The obligation of the contract of Jones was to produce a certain net result by means and methods over which Cox and his employee had no control, and the contract between them was one "for service and not one of service." Kisner v. Jackson, 159 Miss. 424, 132 So. 90; Cook v. Wright (Miss.), 171 So. 686, decided January 4, 1937, and authorities there cited. And this is true, notwithstanding the fact that an employee of Cox was on the towed truck performing the mechanical duty of steering the truck so that it would safely follow behind the dominant and propelling force, for, as said in Cook v. Wright, supra: "It is not necessary that an owner or employer, in order to avoid the responsibilities of master, shall entirely absent himself from the work, or entirely disassociate himself from an active interest, or an active aid in the course of its performance, or from a supervision of the results of that performance, so long as, in respect to the details of the work necessary, or proper, to be performed for the production of the net results required by the contract, the physical management of the instrumentalities used, and the physical conduct of those employed therein, remain under the sole control of the contractor, or of those placed in authority by him or by his selection and direction."
We conclude therefore that the peremptory instruction requested by Cox and William Hemby, to the effect that there was no liability on their part, should have been granted.
As to the appellant John Turner, the assignment of error based upon the action of the court in overruling a motion to change the venue of the cause to the county of his residence becomes material. The suit was filed in Choctaw county, where the defendant O.N. Harris resided, while all the other defendants were residents of Lowndes county. At the conclusion of the plaintiff's evidence a motion to exclude the evidence and direct a verdict in favor of the defendant Harris was sustained. After motions for peremptory instructions by the defendants Cox, Hemby, and John Turner had been overruled, they moved for a change of venue on the ground that the evidence showed a lack of good faith in joining the said Harris as a party defendant, and that he was joined for the fraudulent purpose of fixing venue in Choctaw county. This motion was overruled, and the action of the court in so doing is assigned as error. Upon this motion evidence was heard, and, taken in connection with the testimony offered by the appellee tending to show negligence on the part of Harris, we are unable to say that the court erred in holding that there was not a fraudulent joinder of parties.
There was evidence tending to show that the appellant Turner was guilty of negligence in driving the wrecker up the hill in the center, or to his left of the center, of the highway so as to obstruct the highway in a manner that rendered it dangerous to persons and vehicles using the highway and passing or attempting to pass the wrecker. The fact, if it be a fact, that the driver of the log truck on which the appellee was riding, which at that moment came over the hill, was negligent in the operation of the truck, did not relieve the driver of the wrecker of liability for his negligence, if any, in dangerously obstructing the highway, for he had no right to assume that other persons using the highway would keep their vehicles under constant control and obey the traffic laws. Terry v. Smylie, 161 Miss. 31, 133 So. 662. We think, therefore, the question of whether or not Turner was guilty of negligence which proximately contributed to the accident and injury was one for the decision of the jury, and no error was committed in refusing his request for a peremptory instruction.
Complaint is made of several instructions granted to the appellee, and of one refused instruction which bore upon the question of the liability of the appellant Turner. Some of the appellee's instructions, if each of them were considered alone, might be subject to criticism, particularly that they were too general in their terms, but, when all the instructions are read together, we are of the opinion that they present the law applicable to the facts with reasonable accuracy, and that there are no errors therein which require a reversal of the judgment against the said John Turner.
There is no merit in the contention that the amount of the verdict is so excessive as to evince passion and prejudice on the part of the jury. The appellee was a man about twenty-eight years of age, with an earning capacity considerably above that of a common laborer. The testimony of his physicians was to the effect that he was so seriously injured that for several days thereafter they practically despaired of his recovery; that his arm was broken in the elbow joint and below the elbow; that the breaks in the bones of the arm had not properly united, and that the use of the arm was permanently impaired; that his leg was broken in a way that had resulted in a permanent shortening of the leg about three inches; that his left ankle and foot were crushed and permanently injured, and that his nervous system had been so shocked as to be permanently impaired, and that as a result of these injuries he was permanently disabled from performing any kind of manual labor. There is much testimony as to the intense pain and suffering endured by him during the several weeks that he was confined in a hospital and at all times thereafter. We do not think it can be said that the verdict is so grossly excessive as to evince passion or prejudice on the part of the jury, and therefore the judgment of the court below will be affirmed as to the appellant John Turner. There was no appeal from the judgment entered in favor of C.L. Jones.
The plaintiff, L.L. Dempsey, has prosecuted an appeal from the dismissal of the cause as to O.N. Harris, in pursuance of a verdict in his favor directed at the conclusion of the plaintiff's evidence. We have already herein detailed the substance of the testimony offered by the plaintiff to the effect that O.N. Harris drove his very heavily loaded log truck over the top of the hill, on the wrong side of the road, at a rapid rate of speed, and that the truck proceeded down the hill practically in the center of the road under circumstances from which the inference might clearly be drawn that he did not have the truck under control, and was proceeding at a speed that was not reasonable and proper under the circumstances, having regard for the safety of the public using the highway. We think therefore that the question of whether or not the defendant Harris was guilty of negligence which proximately contributed to the accident and injury should have been submitted to the jury for its determination.
The judgment of the court below will be reversed as to D.S. Cox and William Hemby, and judgment will be entered here in their favor. As to the appellant John Turner the judgment of the court below will be affirmed, and as to O.N. Harris it will be reversed and the cause remanded.
Affirmed in part; reversed in part; and remanded.