Isaacs v. Prince & Wilds

97 So. 558 | Miss. | 1923

Ethridge, J.,

delivered the opinion of the court.

The appellant, Mrs. Isaacs, brought suit against Prince & Wilds, a partnership composed of George Prince and O. K. Wilds* for injury to a five-passenger Buick automobile, which automobile was run into and injured by a truck owned by Prince & Wilds but rented by them to the Cumberland. Telephone & Telegraph Company under an arrangement by which the Cumberland Company would pay Prince & Wilds ten dollars per day for the truck, which price was to include also the compensation of the driver of the truck. The Cumberland Telephone Company applied to Prince & Wilds for a truck and driver to be used in the business of the telephone company. Prince & Wilds informed the telephone company that they would furnish the truck, but did not have a competent and suitable driver. The manager of the telephone company, who made the deal, stated that the company had a competent driver in their employment and would use this driver, but it was arranged that the wages of the driver were to be paid by Prince & Wilds out of the ten dollars per day for the use of the truck. The truck was regularly licensed in the city of Vicksburg in the name of Prince & Wilds and was used by them in their business at times in the city of Vicksburg. The telephone company is shown to have had control of the movements of the truck and driver and the truck was engaged in the business of the telephone company at the time the car of the appellant was injured. It is conceded that the driver of the truck was negligent in the operation of the truck, and substantial injury was proven-to the automobile of the appellant. At the conclusion of the plaintiff’s testimony, which showed the above facts, the circuit court granted a peremptory instruction for the defendant, and judgment was entered thereon, from which this appeal is prosecuted.

As stated, the proof shoAvs that Prince & Wilds paid the driver of the truck the sum of two dollars per day from the ten dollars received for the rent of the truck and driver. The driver was at the time of the contract between Prince & Wilds and the Cumberland Telephone & Telegraph Company employed by the telephone company and was placed by them in charge of the truck, and received his orders from the telephone company, who had control of the movement of the truck and of the business it was engaged in. It is insisted on the appeal that the relation of master and servant existed between the driver of the truck and Prince & Wilds, and that the truck was being operated and was owned by Prince & Wilds, Avhile the appellee insists that the driver of the truck, under the facts stated, was the servant of the telephone company, and not the servant of Prince & Wilds, in the true sense of the meaning of the term in relation to master and servant, and that the truck was not being used in the business of Prince & Wilds, or about their business, and that the servant at the time of the collision ivas not engaged about the business of Prince & Wilds, but was engaged in the business of the Cumberland Telephone Company.

In Sawmill Construction Co. v. Bright, 116 Miss. 491, 77 So. 316, it was held that where a person who is in the general employment of one person may be temporarily in the service of another with respect to the particular transaction or a piece of work so that the relation of master and servant arises between them as where an employer lends his employee to a third person for a particular employment, the employee for anything done in that particular employment is the servant of the third person, though he remains in the general employment of his employer. In that case Bright was in the employment of the Sawmill Construction Company, and was, under. an arrangement between the construction company and the Finkbine Lumber Company, called into the service of the Finkbine Lumber Company to perform a particular service, and was injured while so employed. It was held that the Finkbine Lumber Company was liable. It was also held under the particular facts in that case that the construction company and. the Finkbine Lumber Company were joint tort-feasors.

The case of Carr v. Burke, 183 App. Div. 361, 169 N. Y. Supp. 981, was a case wherein the defendant was engaged in the trucking business, handling trucks and horses and employing men to operate them. One Bowman was the defendant’s employee. The night before the accident the defendant was called to the telephone by the Merchants’ Bapid Service Company, engaged in the express' business, with whom he had never transacted any business relations theretofore, and asked if they could have a truck and team the following day. On the following morning when the defendant’s driver, Bowman, reported for work, the defendant sent him to the place of business of said company with one of his trucks and. teams. He was given two packages, one for the Adams Express Company and the other for Montgomery Ward, which he delivered, and he was then directed by said company to go to the Bush Terminal for a load of filled water bottles and bring them to the office of said company. He was on his way to the office with the load of bottles when he collided Avith a cart driven by the plaintiff, in consequence of Avhich plaintiff was injured. Bowman Avas paid for his Aveek’s Avork, which included the day of the accident, by the defendant, Avho Avas paid eight dollars by the express company for the day’s use of the truck and horses and the services of Bowman. The plaintiff Avas in the employment of the street cleaning department of the city of New York, driving a tAvo wheeled dirt cart, on the day of the accident. The defendant gave no orders to BoAvman after he left his place of business on the day of the accident, nor did he know what work he Avas engaged in doing, other than that it was the work of the express company from whom Boav-man took his orders that day and did what they directed him to do. His work consisted in delivering goods to the places designated by the express company, and receiving-goods at places to Avhich he Avas sent by them, and transporting the same to their office or place of business. The court said in considering that case:

“The principles of laAV Avhich control in this class of cases are quite Avell settled. A servant in the general employment of one person, Avho is temporarily loaned to another person to do the latter’s work, becomes, for the time being, the servant of the borrower, who is liable for his negligence. But if the general employer enters into a contract to do the work of another, as an independent contractor, his servants do not become the servants of the person with whom he thus contracts, and the latter is not liable for their negligence.”

The judgment against the defendant was reversed, and the complaint dismissed.

To the same effect is Burns v. Jackson (Cal. App.), 211 Pac. 821, and other California cases cited in that opinion; Campbell v. N. Y., N. H. & H. R. Co., 92 Conn. 322, 102 Atl. 597; Greenberg & Bond Co. v. Yarbrough, 26 Ga. App. 544, 106 S. E. 624, and authorities therein cited; Sargent Paint Co. v. Petrovitzky, 71 Ind. App. 353, 124 N. E. 881; Hill v. Poindexter, 171 Ky. 847, 188 S. W. 851, L. R. A. 1917B, 699; Grothmann v. Hermann (Mo. App.), 241 S. W. 461; Puhlman v. Excelsior Express & Standard Cab Co., 259 Pa. 393, 103 Atl. 218, L. R. A. 1918D, 118; Badertscher v. Independent Ice Co., 55 Utah, 100, 184 Pac. 181; Core v. Resha, 140 Tenn. 408, 204 S. W. 1149; Olson v. Clark, 111 Wash. 691, 191 Pac. 810; Ash v. Century Lumber Co., 153 Iowa, 523, 133 N. W. 888, 38 L. R. A. (N. S.) 973; Quinby Co. v. Estey, 221 Mass. 56, 108 N. E. 908; Standard Oil Co. v. Anderson, 212 U. S. 215, 29 Sup. Ct. 252, 53 L. Ed. 480; Fuller Co. v. McCloskey, 228 U. S. 194, 33 Sup. Ct. 471, 57 L. Ed. 795.

It is clear to us from the principles announced in the foregoing cases that the truck was in the service of the Cumberland Telephone Company and that the driver was the servant of that company, performing their work,'subject to their orders, and not subject to the orders of Prince & Wilds.

In Woods v. Clements, 113 Miss. 720, 74 So. 422, L. R. A. 1917E, 357, it was held that to make a person liable in damages for an injury inflicted in the operation of an automobile the relation of master and servant must exist, and, second, the car must have been used at the time of the injury in the course of the master’s business. This rule has been announced in many cases in this state, and, as we understand the law and the record, the truck was pot being operated in the business of Prince & Wilds at the time of the injury, but was being operated in the business of the Cumberland Telephone Company, under its direction and control. In our view the peremptory instruction for the defendant was proper, and the judgment will be affirmed.

Affirmed.