ARK.] S. & C. TRANSPORT 'COMPANY V . BARNES. 205 S. & C. TRANSPORT COMPANY V . BARNES. • 4-3927
Opinion delivered July 1, 1935. MASTER AND SERVANT—INDEPENDENT CONTRACTOR: =In an action .to reeover damages resulting from a collision of an: automobile with a truck, evidence , that defendant company undertook to haul • cars which the driver of the truck had delivered, furnished-him a permit, paid him 75 per cent, of the . delivery charges, that defend:- ant Icompank's name Wa's 'painted on the truck, and that ft guaran-• teed safe deliVeiy of the :cara held to kipport a finding . that the • driiver was an employee of. the comPany, and .not an independent • contractor. . ' 2. ._MASTER AND SERVANT—ABANDONMENT , OF MASTER'S BUSINESS,—.4i truck.driver, after making a trip as employee of defendant company, who, on a ietUrn' trip, collided with Plaintiff's antomObile, while towing an automobile of his own accord, held'noCto. have abandoned his employer's busines§ so as to disCharge the employer from liability for the driver's negligence. 3. NEW TRIAL—REDUCTION OF VERDICT.—A court of record has inherent power to reduce the verdicts of juries to . conform to estak-lished facts. , 4. APPEAL ANt; ERROk— REMISSION OP DAMAGES.— Where the testimony ' conclusively established liability': and the trial 'cou'rt reduced the - award of- the jury at the•request of defend t, a n it 'is in no'Poktion to complain that the court .should have granted a new trial on account of excessive damages awarded by the jury. .. DAMAGES — EXCESSIVENESS.--Awards of $2,000 to $5,000 for each of several plaintiffs held. not excessiire where plaintiffs were seriously and More or less perinanently injured, and have suffered and will continue to suffer' in the future. 6. NEW TRIAL—OFFER OF REMITTITUR.—Failure of the trial court- to grant a new trial upon plaintiff's refusal to . accept remittiturs which the court.has ordered held error. ' Appeal from MonrOe . Circuit Court; W: J. W goner, Judge; affirmed on' Condition. Allan- Robinsoi, J. R. 'Slirreney and Brdmn . e6 _Brad-ley, for appellants. , • Robert S. McGregor and Sharp; for *abOelleeg. JOHNSON,. C. J.' Separate adtiOns *ere instituted' bY appellees, Kenneth C: Barnes, Mrs. Kenneth' C. Barnes; Mrs. Arnie Ray, Mrs. Annie-Worsham and Clarenee Banes, against appellants, S: & C. Transport' Company, a foreign corporation, and S.J. Bake in the Montoe'Circuit Court to compensate * personal injuries 'and also the
206 S. & C. TRANSPORT COMPANY 'V. BARNES. [191 destruction of an automobile, the proOerty of -appellee, Kenneth C. Barnes, which occurred in and by reason of a collision between said* automobile . and a truck and trailer driven by appellant Bage on July 7, 1934. The complaints respectively, alleged that Bage was an employee and servant of S. & C. Transport Company at the time of the -collision, and was in due performance of his duty as such ; that the collision was due to the carelessness an * d negligence of Bage in suddenly driving his truck and trailer from behind a car which he was following and entering the left side of the highway which was being traveled by appellees, thereby carelessly and negligently striking appellees' automobile, destroying it, and inflicting the very serious personal injuries complained of. Appellant . S. & C. Transport Company files answers denying all the material allegations of the complaints and specially alleged that Bage was, at the tiMe of the collision, an independent contractor. Appellant S. J. Bage answered the . complaints of appellees by denying all material allegations thereof and specially affirmed that at the time of the collision he was an independent contractor and not -an employee or servant of his co-appellant ; moreover, that the collision was due solely to the negligence of Kenneth C. Barnes, the driver of the automobile. The specific negligent acts of Kenneth C. Barnes relied upon by appellant Bage as a defense are not set out in the answer. The several causes were consolidated for trial, and the testimony adduced by appellees, when viewed in the light most favorable to them, warranted the jury in finding: That on July 7, 1934, appellees Kenneth C. Barnes, accompanied by his wife and son, Mrs. Ray and Mrs. -Worsham, co-appellees herein, were upon a journey from Madison, Tennessee, to Coleman, Texas, and, while traveling in a westerly direction across the State of Arkansas and at a point near Brinkley, and while driving at a moderate rate of speed and upon the right-hand side of the highway, were suddenly met head-on by the truck and . trailer which was being -driven by appellant Bage; that the Barnes automobile was completely wrecked by the im-
ARK.] S. & C. TRANSPORT COMPANY V. BARNES. 207 pact, and appellees and each of them • received very serious and more or less painful and permanent injuries on account of said collision ; that at and prior to the collision appellant Bage was driving a truck which was drawing a large trailer, the, property of S. & C. Transport Company, and was returning •to East St. Louis from a trip to Southwest Arkansas where a delivery of a load of new automobiles bad been effected under the directions and control of the said S. & C. Transport Company. The testimony . on behalf of appellants was to the effect tbat Bage owned tbe truck and had borrowed the trailer from his co-appellant for use in making deliveries of new automobiles, and that appellant, S. & C. Transport Company, had nothing to do with the directions or control of the manner • and means of effecting deliveries of the cars which were •being transported. Moreover, that Bage at the time of the collision was transporting a car owned by one Mr. Darby under a private contract of hire, and was therefore not in : performance of any duty for the master while- engaged in this private enterprise. Instructions were . given by the trial court to the jury . in charge which will be hereinafter adverted to covering all issues of fact reflected by the testimony. The jury returned verdicts in favor of appellees and against appellants • jointly as follows : Kenneth C. Barnes • $10,000 Mrs. Kenneth C. Barnes 10,000 Mrs. Ray • 10,000 Mrs. Worsham 10,000 Clarence Barnes . 3,500 • • On the presentation of appellants' motion for new trial, the court reduced the above awards .as follows.: . Kenneth C. Barnes to . $5,000 Mrs. Kenneth C. Barnes to 4,000 Mrs. Arnie Ray to • 4,500 Mrs. Annie Worsham to 3,750 Clarence Barnes to -2,000 and entered judgments 'accordingly, and thereupon overruled said motion for new trial. .Both appellees and appellants saved proper exceptions and have appealed and eress-appealed respectively from the modified judgments.
208 S. & C. TRANSPORT COMPANY V. ' BARNES. [191 • Appellant S. & C. Transport Company's primary contention for reversal is that as a matter of law Bage, the driver of the truck and trailer at the time of the collision, was an independent cOntractor—directing- and controlling the manner . and means of • carrying on his business, and that therefore . the liability to appellees, if any; falls upon Bage and not it. ; - • The trial court submitted this issue of fact to the jury under instructions, the form of which . are not here complained of, and we think properly so. Appellant S. & C. Transport Company's president, Mr. • Smith, testified that . their headquarters were situated in East St. Louis,- and it operates eight or nine-trucks and trailers in ten or twelve different States under licenses and permits issued by the respective States ; that his company procured the order for hauling the cars tran§ported by Bage and furnished to hini the permit to operate in this State; that his company collected the charges for-delivering the new cars and paid to Bage 75 per cent. of the amount collected; that, under -the directions of witness, Bage had the name of "S. & C. Transport -Company" painted on both sides of his . truck . ; that safe delivery of the neW cars hauled bY B . age was guaranteed by the S. & C. Company, and its responsibility in this. behalf was insured by an insurer. Under repeated decisions of this' court, the above testimony is amply sufficient to support the jury's finding that the relationship existing between appellant S. & C. Transport Company and Bage was that of master and servant or employer and eniployee and not an independent contractor. Monk IT; Jones, 190 Ark. 1117; Magnolia Petroleum Co. v. Johnson; 149 Ark. 553, 233 .S. W. 680 ; Ellis Lewis v. WaTner, 180 Ark. 53, 20 S. W. (2d) 320; Terry Dairy Co: v. Parker, 144 Ark. 401, 223 S. W. 6. Next appellant S. & C. Transport Company urges that Bage, by his contract of hire with Darby to haul his auto m -obile upon his return trip from Southwest Arkan-Sas to East St. Louis, deserted his master's business for that of his own private . affnirs, and was therefore withOut the scope of his authority at the time of the collision. Keller v. White, 173- Ark.. 885, 293 S. W. 1017, is cited
ARK.] S. & C. TRANSPORT. COMPANY v. ; BARNES: 209 as conclusive of this :contention.. ' We cannot agree.. In the ; case, cited,: White , was conclusitely :shown. to have been :upon , no 'business of. \the'. master at the time :of, his injury whereas . in- the Instant' case : Bage: was returning to appellant_ S. & C... Trthisport Conapany's. headquarters at East' St. Lanis r illitiois;from it trip made to Southwest ArkanSas at this :Master's demand,: hy its' direction and under its 'control. Under Jacts and.. circnnistances- .not materially different 'froin the ones here under consideration, : we stated ;the . applicable . rule , as . . ; follows : : • , ,.! ," Where :an agent,: driving a truck over. a.,route. for the purpose ,of delivering:,and . selling merchandise, in reT turning: to„ the, principal's place .of .business„: towed', an automobile , .of . .his ,own accord, .and,. at an intersection skidded , the truck through a:filling ,station, :causing the car. being towed to strike plaintiffs' .car and injure plaintiffs, held that the principal . was liable,, since, although he exceeded . his authority, he had not, as a matter of law, completely .abandoned the :principal's husine§s. Camp-pol Baking .Co. .v., Clark, 175 Ark. 899, 1 8...W. (2d)35. , Appellants next .urge that the, trial , . court *erred in reducing; the; jury's, awards and not granting a new trial. Twisty. Mullinix,.n6 Ark-427, 190.S. W. 851, and Spadra C r epic . C oal ;Callahan, 129 . Ark. 443, 196. S. W. 477, are . cited in support of this contention.... „These -eases do not supporLthe.contention.arged. . There we were :dealing. with ,the . question of, the; sufficiency , of: the testimony to support a jury 's verdict or whether or not, such yer7 diet, rested . with: the . weight . of, the testimony.. , Certainly if a jury's. verdict is , contrary to the testimony,, and. the trial court .so determinesor is Ivithout testimony to support. it,. nothing . can :be. done save grant a new trial . ; Init this rule . . has no application to the facts of . this ,cas,e. Here.the testimony is conclusive that liability e N ists,. and the . trial- court reduced the awards at : the .invitation. and request of . appellants, a . nd;they:are therefore in no position to: complain, were it, determined. that this. ruling was errOneous. Inherently :courts of ;record, have . the: power to .reduCe jury awards. to conform : to the, established facts as is established by our repeated actions. ill . this,:regard. St. Louis & N. A. Ry. Co. v. Mathis, 76 Ark. 184, 91 S. ,W.
210 S. & C. TRANSPORT COMPANY V. BARNES. [191 763 ; St. Louis Iron Mt. & Southern Ry. Co. v. Adams, 74 Ark. 326, 85 S. W. 768; Fordyce v. Hardin, 54 Ark. 554, 16 S. W. 576 ; St. L. I. M. & S. Ry. Co. v. Warner, 65 'Ark. 619, 48 S. W. 222; St. L. I. M. & S. Ry. Co. V. Williams, 92 Ark. 534, 123 S. W. 403 ; St. L. I. M. & S. Ry. Co. v. Hesterly, 98 Ark. 240, 135 S. W. 874; St. L. I. & S. Ry. Co. v. Brown, 100 Ark. 107, 140 S. W. 279 ; Fowler v. Johnson, 11. Ark. 280; Hay v.- &y ak of State, 5 Ark. 250; McFarland v. State Bank, 4 Ark. 444. • Neither can we agree that prejudicial error is made to appear in granting and refusing instructions to the jury in charge. We have carefully considered all instructions granted and refused by the trial court, and it must suffice to say that the instructions given; when considered as a whole, were fair, .complete and free from prejudicial error and covered all controverted issues of fact tendered by the admitted testimony. Finally, appellants contend that the modified judgments as entered by the trial court are excessive. The testimony reflects that each . of appellees was painfully, seriously and more or less permanently injUred by the collision and has suffered and will continue in the future to suffer from the effects thereof. This testimony, without quoting it in detail, is amply sufficient to support the modified judgments. • It follows that no prejudiciai error is made to appear from appellants' appeal, and the judgments against them Must therefore be affirmed. On cross-appeal appellees contend that • the trial court abused its discretion in reducing the jury's awards. Without reviewing the testimony in reference to the extent of appellees' injuries, it suffices to say that the jury's awards, until modified, were clearly excessive, and -the trial court was justified in making the reductions, but erred in not granting a new trial upon appellees' refusal to accede to the remittiturs. See cases cited supra. If appellees elect within fifteen days to accede to the remittiturs of the trial court and waive the error indicated, the judgments will in all things be affirmed; otherwise they must be reversed and remanded on cross-appeal.
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