Opinion
No. 35337.
April 26, 1943. Suggestion of Error Overruled June 7, 1943.
1. MASTER AND SERVANT.
Where a servant steps aside from the master's business for some purpose of his own disconnected from his employment, the "master and servant relationship" is temporarily suspended and the master is not liable for his acts during such time.
2. AUTOMOBILES.
Evidence that driver of automobile was a servant of defendant and was using the defendant's automobile on the night of the accident made out a "prima facie case" that the driver was serving the defendant in all that the driver did.
3. AUTOMOBILES.
Where plaintiff's action for personal injury was based on theory that collision of automobile in which plaintiff was riding with transport truck was caused by attempt of defendant's servant to pass truck but evidence disclosed that servant's duties to master required servant to go in opposite direction in order to deliver papers, if the servant was trying to pass the transport truck he was not engaged about business of master who could not be held liable for plaintiff's injuries.
APPEAL from circuit court of Tunica county, HON. JOHN W. CRISLER, Judge.
Brewer Sisson, of Clarksdale, and Watkins Eager, of Jackson, for appellant.
The learned trial court should have peremptorily instructed the jury to find for appellant. The evidence conclusively shows that appellant's driver was not acting in the furtherance of the master's business nor within the scope of his duties when he turned his car northerly. If the servant steps aside from the master's business for some purpose wholly disconnected with his employment, the relation of master and servant is temporarily suspended, and this is so no matter how short the time, and the master is not liable for his acts during such time.
Barmore v. Vicksburg S. P.R. Co., 85 Miss. 426, 38 So. 210; Bourgeois v. Mississippi School Supply Co., 170 Miss. 310, 155 So. 209; Southern Bell Telephone Telegraph Co. v. Quick, 167 Miss. 438, 149 So. 107; Brown v. Bond, 190 Miss. 774, 1 So.2d 794; Ozen v. Sperier, 150 Miss. 458, 472, 117 So. 117; Richards v. City Lumber Co., 101 Miss. 678, 691, 57 So. 977; Gower v. Strain, 169 Miss. 344, 145 So. 244; Boggs v. Jewett, 127 Miss. 308, 90 So. 13; Dixie Greyhound Lines v. Everett, 185 Miss. 458, 463-464, 187 So. 508; Crawford v. Rice, 36 F.2d 199, 201; Miller v. Frank I. Epstein Co. (Wis.), 200 N.W. 645, 646; Smith v. Al Parker Securities Co. (Tex.), 74 S.W.2d 687, 688; Bragg et al. v. Hughes (Tex.), 53 S.W.2d 151-154; Selman v. Wallace (Ga.), 165 S.E. 851, 852; Bresnan v. Republic Supply Co. (Tex.), 63 S.W.2d 1105, 1106; Dawson Chevrolet Co. v. Ford (Ga.), 170 S.E. 307; Kelly v. Louisiana Oil Refining Co. (Tenn.), 66 S.W.2d 997, 998; 5 Blashfield's Cyclopedia of Automobile Law Practice, Sec. 3046; 39 C.J. 1282, Sec. 1472.
Dulaney Bell, of Tunica, for appellee.
Mrs. Mary Dean Holmes Jepsen, the appellee, suffered a fracture of the clavicle in two places and a fracture of the pelvis bone in two places and other injuries in an automobile collision which occurred near midnight of December 24, 1940, at a point a short distance south of the village of Robinsonville, on concrete Highway No. 61 which runs from Memphis through Tunica. For these injuries, she brought suit against W.G. Stovall, the appellant, and the Dealers Transport Company, alleging that the wreck and injuries were caused by the negligent obstruction of the highway by servants of the defendants. After all of the evidence had been presented, the court gave a directed verdict in favor of the Dealers Transport Company and the jury rendered a verdict against W.G. Stovall for $3,000 and judgment was entered from which he has appealed to this court.
Immediately prior to the collision, the plaintiff was riding on the front seat of her husband's Chevrolet sedan which he was driving and the back seat of which was occupied by W.C. Evans and his wife, Mrs. Mary Lou Evans. They were driving south towards Tunica and were approaching a large vehicle known as an automobile transport or truck-tractor with semitrailer belonging to the Dealers Transport Company which was being driven north on the highway towards Memphis by a servant of the Transport Company named Creson in the service of and on the business of the Transport Company. This vehicle was of sufficient size to transport four automobiles, being eight feet in width and forty feet in length.
At the same time and place a Ford automobile belonging to the appellant, W.G. Stovall, was being driven by his servant, T.J. Pierce, in connection with the business of the appellant. Also at the same time and place, a Plymouth automobile belonging to a witness, F.M. Massey, was being driven south towards Tunica a short distance in front of the Jepsen Chevrolet.
As to the foregoing there is no conflict in the record. However, the testimony was conflicting as to whether, at the time of the collision, the Ford car of the appellant was being driven north or south. The proof offered by the appellee was to the effect that at the time of the collision or immediately prior thereto the appellant's servant Pierce was driving the Ford car north and had been behind or south of the transport; that although he could see the cars approaching from the north he negligently drove over to the left side of the highway, narrowly missing a collision with Mr. Massey's Plymouth and forcing Mr. Jepsen to apply his brakes suddenly, which resulted in the Jepsen car skidding into collision with the transport, thereby causing the wreck and injuries to Mrs. Jepsen. On the other hand, proof offered by the appellant was to the effect that at the time of the wreck Pierce was driving south in front of the Jepsen car and after meeting and passing the transport, heard the collision and stopped, turned around toward the north, and came back to the scene of the wreck.
The negligence of appellant's servant was the proximate cause of the injuries. The evidence accepted by the jury as to how the accident occurred showed that the negligence of appellant's servant in pulling out to the left and attempting to pass the transport was the proximate cause of the plaintiff's injuries. Regardless of what duties rested upon the driver of the transport, the accident would not have occurred if the car had remained behind the transport. Certainly the jury was justified in reaching this conclusion. To attempt to pass a car going in the same direction, particularly one of extraordinary width and length, when the passage cannot be safely made without endangering approaching cars was negligence, both at common law and under the Mississippi statute.
Chadwick v. Bush, 174 Miss. 75, 163 So. 823; Evans Motor Freight Lines v. Fleming, 184 Miss. 808, 185 So. 821; Laws of 1938, Sec. 60(a), Ch. 220.
It is contended that the lower court should have granted appellant's request for a peremptory instruction because it is said that the evidence conclusively shows that appellant's driver was not acting in the furtherance of the master's business.
In cases of deviation the authorities are clearly to the effect that a mere departure by the servant from the strict course of his duty, even for a purpose of his own, will not, in and of itself, be such a departure from the master's business as to relieve him of responsibility.
Ritchie v. Waller, 63 Conn. 157, 28 A. 29, 27 L.R.A. 161, 38 Am. St. Rep. 361.
In order to escape liability it devolves upon the master to prove that the servant had abandoned the duties of his employment and gone about some purpose of the servant's own, in which the master's business was not concerned, and which was not incident to the employment for which the servant was hired. If the testimony leaves this question in doubt, it must be submitted to the jury.
Barmore v. Vicksburg, S. P.R. Co., 85 Miss. 426, 38 So. 210, 70 L.R.A. 627, 3 Ann. Cas. 594; Bourgeois v. Mississippi School Supply Co., 170 Miss. 310, 155 So. 209; Southern Bell Telephone Telegraph Co. v. Quick, 167 Miss. 438, 149 So. 107; Slaughter v. Holsomback, 166 Miss. 643, 147 So. 318; Merchants Co. v. Tracy, 175 Miss. 49, 166 So. 340; Delta Cotton Oil Co. v. Elliott, 179 Miss. 200, 172 So. 737; Brown v. Bond, 190 Miss. 774, 1 So.2d 794; Ritchie v. Waller, supra.
The jury accepted the account of the accident as given by Mr. Massey, corroborated by other witnesses, showing that at the time of the accident Pierce was driving north. The record shows that he left Memphis going south on Highway 61 but does not show where he began, or when or why he began, driving north. The jury was justified in inferring from the hour that he left Memphis and the time of the wreck that the turning could not have taken place a great while before the wreck and also that he turned at a place no great distance south of the place where the wreck occurred. The jury must also have believed that he was in a place where his employment took him at a time when his employment made it necessary for him to be there. The jury must also have believed that if he deviated in any way from the scope of his employment he did so, to use the recent language of the court in Brown v. Bond, supra, "while on unfinished business of the master."
The distance to Greenwood and the time at which Pierce left Memphis negative any reasonable inference that he had completed his mission and was returning to Memphis. Since the record did not disclose why he was proceeding north the presumption arose that he did so as an incident and part of his mission. The court and jury could readily believe that in the common experience of men, it often becomes necessary for a person proceeding in one direction on business to turn back in the opposite direction as an incident of his mission, to recover a hat or other article that has blown from the car, to stop at a service station for gas which he has noticed is running low, or have other attention given the car, to deliver a message or article which his employer has requested him to deliver, or to do any one of many things which common experience would suggest or require, whether such purpose or slight deviation should be thought to be principally for the benefit of the driver or a third person or not.
Argued orally by Ed. C. Brewer and P.H. Eager, for appellant, and by J.W. Bell, Jr., and J.W. Dulaney, for appellee.
Appellee Mrs. Jepsen brought this action in the circuit court of Tunica County against the appellant Stovall to recover damages for personal injuries she received alleged to have been caused by the negligence of Stovall's servant Pierce driving Stovall's car. The declaration alleged and the plaintiff undertook to prove that the injury was caused by a violation by Pierce of Section 60 (a) of the Uniform Motor Vehicle Act, Chapter 200, Laws of 1938, which is in this language: "No vehicle shall be driven to the left side of the center of the roadway in overtaking and passing another vehicle proceeding in the same direction unless such left side is clearly visible and is free of oncoming traffic for a sufficient distance ahead to permit such overtaking and passing to be completely made without interfering with the safe operation of any vehicle approaching from the opposite direction or any vehicle overtaken. In every event the overtaking vehicle must return to the right-hand side of the roadway before coming within 100 feet of any vehicle approaching from the opposite direction."
The trial resulted in a verdict and judgment for the plaintiff in the sum of $3,000, from which the defendant prosecutes this appeal.
Highway 61 runs south from Memphis, Tennessee, through this state. Mrs. Jepsen's injury occurred about midnight on Christmas Eve, 1940, at a point about seven miles north of Tunica. She and her husband and two guests, Mr. and Mrs. Evans, were traveling south on Highway 61 in Mr. Jepsen's car being driven by him. Their car crashed into a transport truck going north on the highway to Memphis. Their car was wrecked and Mrs. Jepsen was seriously injured. The defendant Stovall was engaged in delivering the Commercial Appeal, a Memphis daily newspaper, at Tutwiler, Sumner, Webb and Greenwood in this state. He used a Ford car for that purpose and had Pierce employed to drive the car and make the deliveries. At the time of the accident Pierce was engaged in that mission. The transport truck was about 40 feet long with a capacity to carry four automomiles. The plaintiff's evidence tended to show that immediately before their car crashed into the truck, Pierce was driving north instead of south, and was trying to pass the truck with his lights, along with those of the truck, glaring up the highway north; that at the same time the Jepsen car and another one in front of it, the Massey car, were coming south and on account of the confusion of vision caused by those conditions the Jepsen car was wrecked by contact with the truck, resulting in the injury. It is undisputed that Pierce was employed by Stovall alone to make deliveries of the Commercial Appeal at the points indicated, and was on that mission and had not made the deliveries and did not do so until after the accident. And the evidence is also without conflict that after the collision the truck traveled north only about half of its length, 20 feet, before it stopped, and the Pierce car was parked something like 200 feet south, facing north. Pierce testified that after he passed the truck and had reached a point two or three hundred feet south of it he heard a crash back of him; that he thereupon stopped his car and turned it around facing north and parked on the shoulder of the highway on the west side; that he did this so as to throw his lights on the tragedy that he suspected had taken place north of him with the view of rendering aid. This meant, of course, that when the Jepsen car ran into the truck his car was facing and moving south, and, therefore, could not have been conducive to the accident. He testified that after doing what he could to help out with the trouble he turned his car south and proceeded on his mission of delivering the papers, which he accomplished as usual.
One of the grounds relied on for reversal is that the defendant was entitled to a directed verdict upon the ground that regardless of whether the testimony of the plaintiff was true or that of Pierce, the latter was not engaged about the business for which he was employed but about a mission of his own. Such verdict was requested and refused by the court. We have reached the conclusion that that contention is well grounded. If a servant steps aside from the master's business for some purpose of his own disconnected from his employment, the relationship of master and servant is temporarily suspended and "this is so no matter how short the time, and the master is not liable for his acts during such time." 39 C.J., pages 1925 and 1926; 5 Blashfield, Cyclopedia of Automobile Law and Practice, Perm Ed., sec. 3046; Bourgeois v. Mississippi School Supply Co., 170 Miss. 310, 155 So. 209; Southern Bell Tel., etc., Co. v. Quick, 167 Miss. 438, 149 So. 107; Brand v. Tinnin, 190 Miss. 412, 200 So. 588; Brown v. Bond, 190 Miss. 774, 1 So.2d 794.
It is undisputed, as argued on behalf of appellee, that the fact that Pierce was a servant of the defendant and was using the defendant's car on the night of the accident, made out a prima facie case that he was serving the defendant in all he did However, the evidence without any substantial conflict met the prima facie case and overcame it. It showed that when Pierce turned around and faced north and went up to the scene of the accident he was not serving his master but himself alone. His duties to his master required him to go in the opposite direction in order to deliver the papers. And that is true also, if, according to the evidence for the plaintiff, he was proceeding north and trying to pass the transport truck. He had no business north; his business was south. It is argued that he may have turned around in order to go back and get gasoline or pick up his hat which might have blown off. There is no evidence, however, to that effect, and if there was any that might have been adduced it was the duty of the plaintiff to do so. The evidence shows he went on south on his mission without getting gasoline and there was nothing to show that he went bareheaded. In other words, the defendant met the prima facie case made out by the plaintiff completely by showing that under any view of the evidence if Pierce contributed to the accident he was not serving his master but was serving himself alone.
Reversed and judgment here for appellant.