Opinion
No. 31971.
January 13, 1936.
1. APPEARANCE.
Foreign corporation's entry of motion to continue case or set it for date during that term was tantamount to general appearance, and corporation was in court, at least after that, for trial either at that term or some subsequent term (Code 1930, section 2999).
2. AUTOMOBILES.
Truck driver whose alleged negligence caused collision, who owned truck and trailer, who was under contract with express company to deliver shipments to consignees, and who received as compensation percentage of proceeds, and who was under substantial control of express company over means and methods used in carrying freight, was a "servant" and not "independent contractor."
3. MASTER AND SERVANT.
"Independent contractor" is one rendering services in course of his occupation representing will of his employer as to results alone, and not as to means of accomplishing those results.
4. DAMAGES.
Five thousand dollars as reduced from eight thousand dollars verdict to man whose collarbone was broken and who sustained five other wounds, necessitating taking of nineteen stitches, and who was totally incapacitated for any work for six months, held not excessive.
5. APPEAL AND ERROR.
Judgment of trial court, which on motion for new trial for excessiveness of verdict required plaintiff to reduce verdict or submit to new trial, had material influence with Supreme Court in determining whether verdict was excessive.
APPEAL from the circuit court of Hancock county; HON.W.A. WHITE, Judge.
Leathers Greaves, of Gulfport, for appellant.
It is appellants' contention that the action of the court in allowing the witness Kinney to testify concerning the plea, or answer, which was filed in the New Orleans court, over the objections of appellants, and the court's allowing this plea to be introduced in evidence, over appellants' objection, was highly prejudicial to appellants and constitutes reversible error.
49 C.J., sec. 121, page 122, sec. 123, page 125, sec. 126, page 126, and sec. 127; Hall v. Waddill, 78 Miss. 16; The Co-operative Life Assn. v. Leflore, 53 Miss. 1; Crump v. Gerock, 40 Miss. 765.
Our court has held that the statute, under which appellee sought to bring the Gulf Coast Motor Express, Inc., into court, contemplates agents with general authority and discretion and not mere employees.
Saxony Mills v. Wagner, 94 Miss. 233, 47 So. 899.
If it could be said that Couvillon was an agent of the Gulf Coast Motor Express, Inc., at the time of the collision complained of, he was not the character of agent as contemplated by the statute and, therefore, process served upon him for the Gulf Coast Motor Express, Inc., would be void and of no effect.
The appellee also attempted to bring the Gulf Coast Motor Express, Inc., into court under the provisions of chapter 287 of the Laws of 1932 of the state of Mississippi. This attempt, we say, was wholly abortive, of no effect and void for the simple reason that it was amply shown by the evidence on the motion to quash of the Gulf Coast Motor Express, Inc., that the Gulf Coast Motor Express, Inc., was not in any sense of the word operating or causing to be operated the truck which Couvillon was driving at the time of the accident, nor was the Gulf Coast Motor Express, Inc., the owner of the truck. The action of the lower court in overruling the motion of the Gulf Coast Motor Express, Inc., to quash the service of summons on it was reversible error.
The appellee failed, as he had done already by his own witnesses, to establish by the appellants' witnesses any relation between Couvillon and the Gulf Coast Motor Express, Inc., which would bind the Gulf Coast Motor Express, Inc. We take it that it is unnecessary to argue the proposition that a plaintiff, in seeking to hold one he terms as "master" or "servant," must show that the relation existed. The ordinary rules of "master and servant" are to be applied to the relation of "owner and driver" of an automobile.
Appellee has not shown either that the truck was owned or operated by the Gulf Coast Motor Express, Inc., that Couvillon was a servant or agent of the Gulf Coast Motor Express, Inc., or that, if he was the latter, he was acting within the scope of his employment or agency.
It must certainly be concluded from the evidence in this case on the question with which we are dealing, that the evidence, without any dispute, shows that the Gulf Coast Motor Express, Inc., was interested in the ultimate result, as a whole, of the work done by Couvillon, but not in the details of the performance of that work nor as to the means of accomplishing that work; and that the Gulf Coast Motor Express, Inc., had no control whatsoever over the manner, method or means employed by Couvillon in delivering freight.
Isaacs v. Prince Wilds, 97 So. 558, 133 Miss. 195; Woods v. Franklin, 118 So. 450, 151 Miss, 635; Vicksburg Gas Co. v. Ferguson, 106 So. 258, 140 Miss. 543; McDonald v. Hall-Neely Lbr. Co., 147 So. 315, 165 Miss. 143.
The verdict as rendered by the jury is in such an excessive amount as to show bias, prejudice and passion on the part of the jury in favor of the plaintiff and against the defendants.
B. Kullman Co. v. Samuels, 114 So. 807; Shell Petroleum Corp. v. Kennedy, 141 So. 335, 167 Miss. 305; City of Vicksburg v. Scott, 151 So. 914, 168 Miss. 572; Beard et al. v. Williams, 161 So. 750.
Gex Gex, of Bay St. Louis, for appellees.
On the return date without filing any other pleading the Gulf Coast Motor Express, Inc., filed its motion to quash which motion was solely on behalf of the Gulf Coast Motor Express, Inc.
After the court overruled the motion to quash, appellants filed motion to require plaintiff to make his declaration more specific, which motion was sustained, and an amendment allowed; whereupon pleas of the general issue were filed on behalf of both appellants.
By virtue of section 2999 of the Mississippi Code of 1930, it is provided that a motion to quash when overruled constitutes a general appearance.
Fisher v. Insurance Co., 112 Miss. 30.
Certainly by its motion to quash the defendant submitted itself to the jurisdiction of the court even though the testimony adduced on the motion to quash which the defendant contends was objectionable had been erroneously admitted. The appellant was not harmed thereby because the only effect thereof was to place the defendant in court at the next term, if it had properly moved for a continuance, and since defendant's motion for continuance was in the alternative, either for the term, or to a later date at the pending term, the motion having been granted, certainly the defendant cannot complain at this time that the court failed to give it more than it requested in its motion.
As a matter of fact personal service was had on the defendant through its agent C.C. Couvillon and on that service of process no attack was made whatever by the defendant.
Mayfield, Admr., v. Barnard, Admr., 43 Miss. 270; Railroad v. Swanson, 92 Miss. 485; Lamb v. Russell, 81 Miss. 382.
The evidence was sufficient to justify the finding that the defendants herein were liable to the plaintiff.
It was established beyond any doubt that C.C. Couvillon was solely an agent of the Gulf Coast Motor Express, Inc. The fact that he was employed on a commission basis under an oral contract, the terms of which were not fully shown did not in any way change the relationship of master and servant, between the Gulf Coast Motor Express, Inc., and C.C. Couvillon.
Texas Co. v. Mills, 171 Miss. 231; Gulf Refining Co. v. Nations, 167 Miss. 315; Southern Express Co. v. Brown, 67 Miss. 260; Finkbine Lbr. Co. v. Cunningham, 101 Miss. 292; D'Antoni v. Albritton, 126 So. 836.
There is nothing now before this court from which it could assume that the amount of the judgment was the result of prejudice, passion, or corruption on the part of the jury.
M.J. G.N.R.R. Co. v. Hurst, 36 Miss. 600; Miss. Central R.R. Co. v. Lott, 118 Miss. 816; Y. M.V.R.R. Co. v. Dees, 121 Miss. 438; Laurel Light Ry. Co. v. Jones, 137 Miss. 143; Bateman v. Teche Lines, 163 Miss. 417; Gulf Refining Co. v. Moody, 172 Miss. 377.
Argued orally by P.D. Greaves, for appellant, and by W.J. Gex, Sr., for appellee.
Appellee brought this action in the circuit court of Hancock county against appellants, Gulf Coast Motor Express Company, Inc., and C.C. Couvillon, to recover damages for an injury received by him as the result of a collision between a motor freight truck driven by Couvillon and a passenger automobile in which appellee was traveling. Appellee averred in his declaration that the freight truck was engaged about the business of appellant, the Motor Express Company; was being driven by its servant, Couvillon, and through the negligence of the latter the injury occurred. There was a verdict and judgment in the sum of eight thousand dollars. Appellants made a motion for a new trial, one ground of which was that the verdict was excessive. The court stated that the motion would be sustained on that ground unless appellee entered a remittitur reducing the amount to five thousand dollars. Appellee entered such remittitur, and judgment was entered accordingly. From that judgment appellants prosecute this appeal.
On July 1, 1934, Couvillon was driving a truck with trailer attached, going east on United States highway 90 in Hancock county. Appellee was in a passenger automobile with others, going west on the same highway. The evidence for appellee, which was believed by the jury, showed that the collision and injury was caused by the negligence of the driver, Couvillon. Appellee was knocked unconscious and his right collarbone was broken. He was taken to a hospital in Bay St. Louis, and the following day removed to the Charity Hospital in the city of New Orleans. Dr. Wolfe of the Bay St. Louis hospital testified that he had a broken collarbone and five other wounds in which it was necessary to take nineteen stitches; that as a result of the wounds scar tissue had formed, causing keloids, which resulted in some discoloration and discomfort, and which might be permanent. Appellee testified that the broken collarbone was in a cast for about two months, during which time he received treatment at the Charity Hospital in New Orleans, that the cast was removed, but shortly afterwards the collarbone broke again, necessitating another cast for two months or more, and that as a result of the injuries he was totally incapacitated for any kind of work for a period of about six months.
Appellants' main contentions are (1) that the Motor Express Company had not been brought into court by proper process for trial at the term at which the cause was tried; (2) that a relation of master and servant did not exist between the Motor Express Company and Couvillon, but that Couvillon was an independent contractor, for whose tort the Motor Express Company was not liable; and (3) that the verdict, although reduced from eight thousand to five thousand dollars, was excessive. The other questions argued are not of sufficient merit to call for a discussion by the court. We will consider the above questions in the order stated.
It may be conceded for the purposes of decision that the efforts by process to get the Motor Express Company into court for trial at the term at which the cause was tried were abortive; still by its own action it voluntarily made itself a party for trial at that term. The Motor Express Company made a motion to quash the process for various reasons. The court overruled the motion; thereupon the Motor Express Company moved the court to either continue the case for the term or set it for trial at a later day in that term. The court made an order on the motion, setting it for a later day in that term. It was accordingly tried; the trial beginning on the day it was set.
Section 2999, Code of 1930, provides as follows: "Where the summons or citation, or the service thereof, is quashed on motion of the defendant, the case may be continued for the term, but defendant shall be deemed to have entered his appearance to the succeeding term of the court."
Under the statute, the motion to quash was an appearance for the succeeding term of the court. If nothing else had been done, there might have been merit in the contention that the cause was not triable at the term at which it was tried, but, when the Motor Express Company entered its motion to either continue the case or set it for a day during that term, that was tantamount to a general appearance. The Motor Express Company was in court, at least after that, for trial either at that term or some subsequent term.
The Motor Express Company was a Louisiana corporation engaged in transporting and delivering, as a common carrier for hire, freight by motortrucks along certain highways, one of which was United States highway 90 from New Orleans to Mobile. The freight was accumulated by the shippers at a depot in the city of New Orleans and there loaded on trucks for various destinations. Couvillon owned a truck and trailer; he was under contract with the Motor Express Company and served the territory between New Orleans and Mobile, and was so engaged when the collision occurred, resulting in appellee's injury. The Motor Express Company issued waybills covering the freight in its own name, and directed Couvillon to deliver it to the consignees; the latter was charged by the company with the amount due on all C.O.D. packages, for which he in turn accounted to the company. He was authorized to accept freight for the Motor Express Company anywhere along the route, deliver it to the consignees, and collect regular freight charges thereon, fixed by the company. Couvillon's compensation was a certain per cent of all freight charges received. The Motor Express Company had freight agents at Biloxi and Pascagoula, in this state, whose duty it was to receive and distribute freight on its account. In many respects the Motor Express Company had substantial control over the means and methods used by Couvillon in carrying freight for it. He was therefore a servant and not an independent contractor. Texas Co. v. Mills, 171 Miss. 231, 156 So. 866; Gulf Refining Co. v. Nations, 167 Miss. 315, 145 So. 327; McDonald v. Hall-Neely Lumber Co., 165 Miss. 143, 147 So. 315. An independent contractor is one rendering services in the course of his occupation representing the will of his employer as to the results alone, and not as to the means of accomplishing those results.
The verdict is large, but we cannot say that it is so large as to evince passion and prejudice on the part of the jury, especially in view of the fact that the trial judge considered and passed on this question requiring appellee to reduce the verdict from eight thousand to five thousand dollars or submit to a new trial. The judgment of the trial court on such a question should and has material influence with this court.
Affirmed.