Hamilton v. Madison Auto Sales Co.

[621]

MUSSELL, J.

Action for damages for personal injuries and property damage arising out of a collision of vehicles.

Defendant Madison Auto Sales Company of Jackson, Mississippi, through its agent, Rodney Henderson, contacted defendant F. M. Deason at Memphis, Tennessee, by telephone and Henderson stated that he had 125 trucks at the Naval Base at Oxnard, California, which he wanted unerated and moved to Jackson, Mississippi. Deason agreed to bring the trucks to Jackson for the sum of 15 cents per mile and to pay the drivers and all incidental expenses. Deason came to California and while he was moving a convoy of six of the trucks through Riverside County, one of them being operated by defendant Warren L. Straign, collided with an automobile and trailer owned and operated by plaintiff John G. Hamilton. Plaintiffs, who were all riding in the Hamilton car at the time of the accident, commenced this action against the three named defendants, alleging, among other things, that the truck involved was owned by defendant Madison Auto Sales Company, and at the time of the accident was being driven by defendant Warren L. Straign, with the knowledge and consent of the defendant company; that at the said time Straign was the agent, servant and employee of the defendant company and was acting within the scope and course of said agency and employment; that at said time defendant Deason was the agent, servant and employee of the defendant company and was acting within the scope of said agency and employment.

A jury returned a verdict against all three defendants and assessed damages as follows: $150 in favor of plaintiff Bonnie Kay Hamilton; $2,585 in favor of plaintiff Irene Hamilton; $11,901 to John Hamilton for personal injuries, doctor bills, medical expenses and loss of salary, together with $1,000 property damage.

The trial court granted a motion for judgment notwithstanding the verdict made by defendant Madison Auto Sales Company, hereinafter referred to as the “Company,” and plaintiffs appeal from the judgment then entered in favor of the company.

It is stipulated by the parties to this appeal:

“1. That there was evidence at the trial sufficient to establish negligence proximately contributing to the happening of the accident on the part of the defendant Warren L.