Tchula Cooperative Store v. Quattlebaum , 176 Ark. 780 ( 1928 )

Kirby, J.,

(after stating the facts). It is insisted for reversal that there is no testimony sufficient to support the judgment, and that the court erred in giving certain instructions in which it is’ claimed the driver of the truck causing the damage in the collision was assumed to'be the agent of appellant, instead of leaving the question to be determined by the jury.

It is true that the plantation manager who hired the trucks to be used in the transportation of the hands or laborers from Pine Bluff to the plantation testified that lie employed Starks as the driver of one of them, the one afterward in the .collision, and put him in charge thereof, and had no knowledge or information that another driver, Wells, had been substituted for him on the trip to the farm in the morning, and knew nothing about the different driver taking the loaded truck back to Pine Bluff in the evening, until after hearing of the collision and wreck that night; stated, however, that he did come along in his own car. near the trucks, when they started out, and had waited, for them at the free bridge to inquire how they were proceeding, and had given Jim Greer, the agent of the company, who collected the hands and accompanied them to the plantation in their work there, money to purchase a fan belt for one of the trucks. The change of drivers, was made about this time, or had been made before.

Several witnesses testified that Mr. McKenzie, the 'manager, was present when the change was made. One or two of the witnesses being carried in his car stated they had noticed the driver being changed, and that Wells had been substituted for Starks at the store near the bridge. The testimony also shows that the hands were paid off by the bookkeeper at the store upon the identification of Jim Greer, and that Wells was paid as a truck driver at his suggestion.

The driver, Jack Jaggers, furnished by the hiring ' agency for one of the trucks, was necessarily the servant of the appellant company, engaged in its business in transporting the hands or laborers to the plantation, and subject to the control and direction of his employer, as was also Jim Greer, whose business it was to collect the hands, assist in getting them to the plantation, and see that they did the work which they were employed to do.

The testimony tends to show that McKenzie, the manager, was present when the change of drivers was made, and one witness said that he knew it was done. In any event, whoever drove this truck taking the laborers to the plantation for cotton chopping, was engaged in the service of the master, whose duty it was to carry them to and from their place of labor, under the terms of their employment.

The driver of one truck sent along by Hood, from whom the three trucks were hired, was not charged with any duty to Hood, the proprietor of the “U-Drive-’Em” agency, to procure or supply drivers for the other two trucks, nor for their safe operation, being sent along by the hiring agency, so far as the other trucks were concerned, only to keep them in good mechanical condition. He was otherwise the servant of appellant company in the transportation of its laborers to and from the plantation.

If Starks, the driver employed by appellant’s manager, had abandoned the truck on the trip without reason or excuse, in the absence of the manager, McKenzie, who had started out with and accompanied the trucks for some distance on the way, and either Greer, who had employed and collected the laborers and was accompanying them to the'plantation, or Jaggers, who was the driver hired with one of the trucks for transporting them, had assumed to place another driver in charge of the truck abandoned by Starks for completion of the trip, there is no reason to say that such substituted driver would not have been the servant of the appellant company in such operation. This substitute for Starks drove the truck on down to the plantation, and was paid off by the bookkeeper of appellant company, upon the designation by Jim Greer as a truck driver, when the other laborers were paid for the day’s work.. He started on back to Pine Bluff, driving the truck, the former driver, Starks, having departed on the afternoon train, transporting and returning the farm laborers to their home in the evening in accordance with their contract of employment, and we hold that he was a servant of the master engaged about the master’s business in so doing, and necessarily for whose negligence, so far as the public is concerned, the master must be held to account.

The instructions complained of do not tell the jury that the truck was operated by the agent of the appellant company, bnt it is. apparent that it was -the intention to leave the jury to find from the evidence that it was operated or driven by the agent of the appellant; and if its meaning was regarded doubtful on this point, the error should have been corrected by a specific objection, which was not made.

The jury has found, on conflicting evidence, that the collision with appellee’s automobile and its destruction and the injury to appellee Nelson was caused by the negligent operation of appellant’s truck in the conduct of its business, and its verdict will not be disturbed.

The assignment that the damages adjudged for personal injury to appellee Nelson are excessive seems to have been abandoned here, but the testimony is sufficient to support the verdict, in any event.

We find no prejudicial error in the record, and the judgments are affirmed.