306 So. 2d 304 | Miss. | 1975
In a tort action for personal injuries, the appellee, Milton Ray Cook, received a jury verdict and judgment for $350,000 against the appellant, Luther McGill, Inc. in the Second Judicial District of Jones County. We reverse.
Although other issues are presented, the dispositive issue is: Was Curtis Brown the agent and servant of appellant McGill, and acting within the course and scope of his employment, at the time of the traffic accident in which Brown’s vehicle struck and injured Cook so that any negligence of Brown was imputed to McGill ?
On August 19, 1970, Brown was driving his truck west on Highway 528 in Jasper County near Heidelberg, Mississippi when a collision occurred between that truck and one driven east by appellee, Cook. The truck driven by Cook was owned by Cook’s employer, Baxter Porter & Sons Well Service. Cook testified that as they were about to meet, Brown suddenly swerved into the lane of traffic properly used by Cook for eastbound traffic. Brown’s version was that he never left his proper lane of traffic (his righthand side of the highway or that used by westbound traffic), but that Cook struck him on Cook’s left-hand side of the traveled portion of the highway. They were both injured in the collision.
Appellant, McGill, requested a directed verdict at the close of the presentation of the case of Cook, and requested a peremptory instruction at the close of all the evidence presented by both sides. In its motion for a new trial which was overruled, the appellant asserted that the earlier requests for directed verdict and peremptory instruction were erroneously denied.
I.
Uncontradicted evidence shows that at the time of the accident Brown was driving his own truck en route to his work for Gulf Oil Corporation, not McGill, at Soso. Testimony of the witness Bishop, President of McGill, without contradiction shows that Brown was not paid for his time consumed in driving to or from his work. However, Brown was (by McGill) paid or reimbursed $3 per week for traveling expenses from Brown’s home at Heidelberg to work for McGill at McGill’s business location in Laurel. For several years Brown had been an employee of McGill but contracted to work for Gulf Oil Corporation certain days of the week, and under that arrangement McGill paid all of Brown’s wages. Gulf then reimbursed McGill for the time Brown worked .for Gulf.
No testimony indicates that Brown’s time for hourly wages for work had begun before the wreck occurred or that either employer controlled or directed his actions during his travel to work. Under these circumstances, we hold that the proof fell short of establishing that Brown was acting within the scope of his employment with McGill, and, therefore, McGill was not legally chargeable with responsibility for any alleged negligence on the part of Brown in the operation of his vehicle. 53 Am.Jur.2d Master and Servant §§ 426-427 (1970); 8 Am.Jur.2d Automobiles and Highway Traffic § 635 (1963); Mississippi Power & Light Co. v. Laney, 247 Miss. 71, 154 So.2d 128 (1963); S. & W. Constr. Co. v. Bugge, 194 Miss. 822, 13 So.2d 645 (1943).
Appellee’s argument that Brown was not a servant by McGill loaned to Gulf is not effective upon the facts before us. Luther McGill, Inc. v. Clark, 244 Miss. 707, 146 So.2d 338 (1962), is relied upon by appellee but that case presented facts dissimilar to the facts here in that there an employee of a certain company on a one time basis assisted another company in moving a heavy item where the work of both companies was on the same site. See Mississippi Export Railroad v. Temple, 257 So.2d 187 (Miss.1972), for discussion of loaned servant doctrine. Our holding here is in line with the rule announced in Runnels v. Burdine, 234 Miss. 272, 106 So.2d 49 (1958), and cases cited therein; 8 Am.Jur. 2d Automobiles and Highway Traffic §§ 630, 635/637 (1963).
II.
An interesting factual aspect of the instant case is that Brown applied for and was paid Workmen’s Compensation
Viewed in the light most favorable to Cook, and treating as true all evidence favorable to him, the uncontradicted evidence was insufficient to show that Brown was at the time of the accident acting within the scope of his employment. Therefore, the question of liability of Brown’s employer, McGill, was erroneously submitted to the jury in the lower court. We do not reach other interesting questions asserted (collateral estoppel, res judicata, and the correctness of jury instructions) inasmuch as the court finds that the appellant is entitled to a judgment here for failure of the proof to make a prima facie case against McGill.
Reversed and rendered.