Colotta v. Phillips

85 So. 2d 574, 226 Miss. 870, 1956 Miss. LEXIS 475
CourtMississippi Supreme Court
DecidedFebruary 27, 1956
Docket39954
StatusPublished
Cited by16 cases

This text of 85 So. 2d 574 (Colotta v. Phillips) is published on Counsel Stack Legal Research, covering Mississippi Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Colotta v. Phillips, 85 So. 2d 574, 226 Miss. 870, 1956 Miss. LEXIS 475 (Mich. 1956).

Opinions

Ethridge, J.

This is an appeal from a judgment of the Circuit Court of Sunflower County in favor of appellee-plaintiff, Sandy Phillips, against appellant D. Colotta in the amount of $4,000. The damages claimed are for per[873]*873sonal injuries received by appellee when appellant’s truck, driven by Ms servant, Jessie Moon, ran into appellee wMle he was walMng on a street in the City of Indianola. The principal question is whether at' the time of the accident Colotta’s servant and truck driver, Moon, was acting in the scope of his employment, or had departed from it so substantially as to remove him therefrom.

Colotta owns and operates a produce company in Indianola. Moon had been driving a delivery truck for Colotta for 12 years, maMng deliveries of produce, such as fresh fruits and vegetables, in Sunflower, Coahoma and surrounding counties, or as Moon testified, “all over the country.” He made deliveries twice a week to the Town of Baird which is situated about six or seven miles southeast of Indianola. In making deliveries over his routes, Moon drove Colotta’s truck, and necessarily he had a considerable area of discretion in determining his routes and the best methods of handling deliveries and collections.

On September 21, 1954, Colotta directed Moon to deliver to two stores in Baird some produce consisting of bananas, potatoes and cabbages. He instructed Moon to go to Baird, make the deliveries and collections, and to return when that was done. Moon left in the truck with the produce around 3:00 p.m. He made the deliveries, collected the money, and returned to Indianola around 7:20 p.m. that evening. Colotta said he should have been back not later than 6:00 p.m., but appellant offered no evidence to show a deviation from the employment prior to Moon’s return to Indianola. He came in the northeast side of town and drove south of Hannah and Depot Avenues, coming within a block of Colotta’s place of business, which was located on Court Avenue. However, instead of turning at the point where he was a block from Colotta’s establishment, Moon drove south for five or six blocks, then turned west for two blocks [874]*874and turned north on Church Avenue. Court Avenue, on which Colotta’s place of business is situated, is an extension of Church Avenue, and is approximately six blocks north and on the same street where Moon in the truck turned on to Church Avenue.

Moon testified that as he turned north on Church Avenue his house'was the second house on the left or west side of that street; that he was going to his house first to see what his wife wanted for supper; and that he then intended to continue north on the same street to his master’s place of business, six blocks north. Moon turned over to the left side of the street to park in front of his house for the stated purpose, but before he stopped he ran into appellee Phillips, an elderly Negro man who was walking south along the west edge of the street. At the time of the collision, Moon had in his possession nine or ten dollars which he had collected for the delivered produce, and the truck which he was driving still had in it some produce. All of this he planned to return to Colotta’s place of business along with the truck after the proposed stop at his house to find out what his wife wanted for supper.

Moon said that he was going to Colotta’s place of business after he made the stop at his house for the stated purpose; that he planned to take the produce, truck and money back to Colotta’s after he made the stop; that he did not consider he was off duty until he took the undelivered produce back to Colotta; and that he had no fixed hours of work, and his working day ended when he got back and delivered the truck and other things to Colotta.

A short time after the accident Policeman Pulton arrived at the scene. He said that Moon was intoxicated at that time. Moon stated that he had not had a drink before the collision, but after it and before the policeman arrived he drank about one fourth of a pint of whiskey. He also said that Colotta told him how he [875]*875should go to Baird, naming particular streets and highways, hut he did not instruct him about a return route, simply saying to “come on back to his place.” Colotta denied that he gave Moon any specific route to go to Baird, but said he told him to go there and come on back; that he had never been to Baird in his life. At the time of the trial, Moon was still employed by Collotta and driving his truck. Moon testified that “on several occasions” since he had been employed by Colotta he had taken his master’s truck to his home, but that “he didn’t give me any orders to take it there. ’ ’ He did not say that Colotta did not know that he took the truck to his home from time to time. Colotta said that he did not authorize Moon to go to his house, but he did not say that he did not know that Moon drove to his home at various times.

Several well-established propositions are pertinent to this case. In an automobile accident case involving a truck which is driven by the owner’s regular driver, it is presumed that the driver, Moon, was at the time engaged in the scope of his employment. The burden of proof is on the master to prove that Moon abandoned the duties of his employment and went about some purpose exclusively his own which was not incidental to his employment. And where the testimony leaves this question in doubt, the issue must be submitted to the jury. Eagle Motor Lines, Inc. v. Mitchell, 78 So. 2d 482, 485 (Miss. 1955).

The principle which controls this case is stated in 57 C.J.S., Master and Servant, Sec. 574 d, pp. 327-328: “The mere deviation or departure by a servant from the strict course of duty, although for a purpose of his own, does not in and of itself constitute such a departure from the master’s business as to release him from liability for injuries inflicted by the act of the servant. The liability of the master depends on the degree of deviation and all the attendant circumstances. [876]*876A slight deviation by the servant will not release the master from liability. In order to relieve a master from liability for the servant’s acts, on the ground that the servant had deviated from his service, the deviation mnst be so substantial as to amount to an entire departure therefrom and be for purposes entirely personal to the servant.”

This well-established rule was cited in Southern Bell Telephone and Telegraph Co. v. Quick, 167 Miss. 438, 451, 149 So. 107 (1933), where the Court quoted with approval from a Connecticut case as follows: ‘ ‘ But in by far the greater number of cases where the question of the master’s responsibility turns, as in the present case, principally upon the mere extent of deviation by the servant from the strict course of his employment or duty, it has been generally held to be one of fact and not of law. In such case it is and must usually remain, a question depending upon the degree of deviation and all the 'attendant circumstances. In cases where the deviation is slight and not unusual, the court may and often will, as matter of law, determine that the servant was still executing his master’s business. So, too, where the deviation is very marked and unusual, the court in like manner may determine that the servant was not on the master’s business at all, but on his own. Cases falling between these extremes will be regarded as involving merely a question of fact, to be left to the jury or other trier of such questions.”

The same principles are stated in 35 Am.

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Colotta v. Phillips
85 So. 2d 574 (Mississippi Supreme Court, 1956)

Cite This Page — Counsel Stack

Bluebook (online)
85 So. 2d 574, 226 Miss. 870, 1956 Miss. LEXIS 475, Counsel Stack Legal Research, https://law.counselstack.com/opinion/colotta-v-phillips-miss-1956.