127 So. 727 | Miss. | 1930
Appellee was injured by an automobile driven by one Givens, who is alleged to have been, at the time, an employee of J.D. Caver, since deceased. It is further alleged that the said employee was engaged in the business of his employer when the injury occurred, and that the said injury was the proximate result of negligence on the part of the said driver of said automobile. Suit was filed jointly against said Givens and against appellant as executrix, and upon the trial there was a judgment for two thousand dollars, from which the executrix appeals.
On the issue of negligence the jury was properly instructed and the evidence is sufficient to sustain the verdict. In fact, appellant does not seriously contend otherwise, but bases her appeal, in the main, on the grounds that said Givens was not an employee but was an independent contractor, and that at the time he was not engaged in the business of his employment.
The facts in respect to these two assignments are that Mr. Caver was operating a retail drug store from which he made deliveries within the city to all customers who in making their purchases desired delivery. For this purpose he made a contract with said Givens, by which Givens was to furnish and did furnish his own automobile, including all the supplies and repairs for the operation and maintenance of the same, and using said automobile, Given was to deliver within said city all packages or articles of merchandise, drugs, and the like, which Mr. Caver would direct him to deliver, from the hours of seven or eight A.M. until dark. For this service Givens was paid fifteen dollars per week. There was *91 another delivery man besides Givens, and apparently there was no fixed division between them of the work. When a package would be ready to go, it would be handed to one of these delivery men, and he would proceed to make prompt delivery, selecting his own route in so doing, and the delivery completed, he would return immediately to the drug store to get further parcels, if any should then be ready. The injury complained of occurred about eight-ten A.M. before Givens had yet arrived at the store. He had stopped at a filling station and had obtained some gasoline, and shortly after leaving the station, and while then directly on his way to the store, the negligent injury happened.
In the recent case Hutchinson-Moore Lbr. Co. v. Pittman,
Upon the second question the test is whether the employee at the time was acting in the course of his employment, within the scope of his duties in furtherance of his master's business, and not for an independent purpose personal to himself; or as otherwise stated, whether at the time the employee was engaged in that which was directly connected with, or was immediately incident to, that feature of the master's business, in respect to which the employment existed. It could hardly be said of the employee in this case that if having already reached the store and having completed his first delivery, he would not be about his master's business while directly on his way back for another package. As actually happened in this case, the hour of employment had arrived and the employee was then directly on his way to the store to get his first package or packages for the day. He was therefore none the less acting within the business of his employment, than if, having already made one delivery, he was on his way back to get another parcel. Mandes v. Midgett, 49 App. D.C. 139, 261 F. 1019; Keuhmichel v. W.U. Tel. Co.,
It is complained also that the verdict is excessive. The injuries were largely of such a nature that the jury could comprehend the same on an examination or by an inspection, and appellee freely allowed an examination and inspection by the jury. The physician who treated him testified fully and, so far as we can see, without effort to strain or enlarge the injuries. Appellee seems to have *93 honorably done all in his reasonable power to give the jury all the facts touching the nature and extent of his injury, and kept nothing back, so far as the record gives indication. When this has been done, it will be a rare case in which this court will interfere with a verdict on the issue of the amount of damages.
In respect to the refused instruction No. 1, appellant, in arguing this assignment, must have overlooked instruction No. 16 which was granted, and which covered the very matter which is complained of as having been omitted.
Affirmed.