Mississippi Supreme Court, 1939

Furr v. Brookhaven Creamery Co.

Mississippi Supreme Court · Decided October 30, 1939 · McGowen, McG-owen

191 So. 684; 188 Miss. 1; 1939 Miss. LEXIS 5 (Southern Reporter)

Counsel

Brady, Brady, Phillips James, of Brookhaven, for appellee on motion to strike stenographer's notes from the record. The obligations placed upon appellants are imposed by Section 726 of the Mississippi Code of 1930. The language of the obligations is as follows: "For ten days after the mailing of the notice by the court reporter the appellant's counsel shall have the use of the notes for the purpose of examination and correction, at the expiration of which time the appellant's counsel shall deliver or mail the notes to one firm or attorney representing the appellee, appending to the notes or endorsing thereon a certificate showing the date when the notes were so mailed or delivered. Appellant's attorney shall also append any written suggestion or proposed correction in the notes." It is evident from the record now pending in this court that the appellants or appellants' counsel, did not discharge this obligation. The obligations imposed on appellee's attorneys by said section are in language as follows: "The appellee's counsel shall be entitled to have the use of the notes for five days from the date of the mailing or delivery of the same by the appellant for the purpose of examination or suggesting corrections therein and at the end of five days, shall be returned to the clerk." It is evident from the record in this court that the appellee, Brookhaven Creamery Company, Inc., could not discharge the obligations imposed upon it by the language quoted from this section of the Mississippi Code of 1930, because of the failure of appellants' counsel to comply with the obligations placed upon them by Section 726 of the Mississippi Code of 1930, and there are no other obligations imposed on it or appellee's counsel with reference to the filing of the record in the supreme court, by this section. It is likewise obvious to this court that the appellee, Brookhaven Creamery Company, Inc., was not in any way negligent in a failure to discharge its duty to enable the appellants to perfect an appeal or to have an appeal perfected, or to have a complete record before this court. It is obvious that this statement is a correct one, and it needs no argument to support it. Section 726, from which the foregoing language is quoted, must be construed in connection with Section 728 of the Code. Appellee, Brookhaven Creamery Company, Inc., avers with earnestness and, as it must appear from this record, with sincerity that its rights were ignored by one of the attorneys for the plaintiffs in giving private instructions to the court reporter to transcribe only a part of the testimony before the trial court and by the inexcusable negligence or wilful failure of the appellants' counsel to deliver or mail said transcript in such manner and within such time as required by law, to appellee or any firm or attorney representing appellee, which appellee avers amounted to a fraud in law and which thereby caused the record to appear in this court, imperfect, incomplete and incorrect in a material particular without fault or neglect or lack of diligence on the part of appellee or appellee's attorneys. Sec. 728, Miss. Code of 1930. For the benefit of the court, the cases cited under Section 726 are hereby referred to in the Mississippi Code of 1930 as well as the 1938 Supplement thereto. Wilkinson v. Love, Supt. of Banks, 149 Miss. 517 , 111 So. 457 ; Hume et al. v. Inglis et al., 154 Miss. 481 , 122 So. 535 ; Geiselbreth v. Miss. Power Light Co., 166 Miss. 749 , 147 So. 874 . R.L. Jones, of Brookhaven, M.S. McNeil and J.H. Garth, both of Hazlehurst, for appellants on motion to strike stenographer's notes from the record. The record in the case as filed embodies all of the evidence introduced in the trial of the case from the beginning until the entry of the judgment in favor of the Brookhaven Creamery Company, Incorporated, which is the only judgment from which this appeal is prosecuted. After the sustaining of the motion of the Brookhaven Creamery Company, Incorporated, for a peremptory instruction there were no further proceedings had insofar as said creamery company was concerned and no further testimony introduced as to the said Brookhaven Creamery Company, Incorporated. The lower court held, and rightly so, that the evidence was sufficient to go to the jury as to the negligence of the alleged servant, Hugh Nettles, but held that the relationship between Hugh Nettles and the Brookhaven Creamery Company was not such as would impose liability upon the creamery company, and it is from this holding of the court that this appeal is prosecuted, and all the testimony bearing upon the relationship of Hugh Nettles and the Brookhaven Creamery Company, Incorporated, is incorporated in the record, and, as we conceive it, is all the testimony necessary to be considered by this court in passing upon the question as to the relationship between the said Hugh Nettles and the Brookhaven Creamery Company, Incorporated. Counsel's motion stressing the other evidence introduced by Hugh Nettles and not the Brookhaven Creamery Company, Incorporated is an effort to have this court on this motion to pass upon the merits of the controversy rather than upon the sufficiency of the record. While not conceding, but, on the contrary, denying that the evidence mentioned by counsel for appellee is material or necessary in the consideration of this appeal, we are nevertheless willing that counsel's motion may be considered as a suggestion of diminution of the record, and inasmuch as counsel for appellee has in his possession the transcribed testimony of the witnesses mentioned by him, whose testimony was taken after the granting of the peremptory instruction to the Brookhaven Creamery Company, Incorporated, we here now agree, if the court considers the same material, that the transcript of such testimony, certified by the court stenographer, and now in possession of counsel for appellee may be filed in this cause and made a part of the record herein. M.S. McNeil, R.L. Jones, and J.H. Garth, for appellants on merits. In the beginning of our argument, we desire first to anticipate at least three propositions that were argued in the lower court, to-wit: (1) The Brookhaven Creamery Company was not the owner of the truck. (2) Nettles was not employed directly by the Creamery Company, but his employment came through Britt. (3) That the Creamery Company did not pay Nettles or Britt from its own funds. The first proposition above mentioned is settled by the case of Caver v. Eggerton, 157 Miss. 88 , where the Supreme Court says: "The fact that the employee uses and maintains his own means of conveyance in said work, and selects his own route is not controlling upon the rule, in a case such as stated." Gulf Refining Co. v. Nations, 157 Miss. 315 . As to the second proposition, the Supreme Court of Mississippi set that at rest many years ago, in Southern Express Company v. Brown, 67 Miss. 260 . Gulf Refining Co. v. Nations, 157 Miss. 315 . It has been decided several times by our supreme court that the mode of payment is not decisive. N.O. N.E.R.R. Co. v. Reese, 61 Miss. 588 ; N.O., etc., R.R. Co. v. Norwood, 62 Miss. 565 . In the present case Homer Britt was paid by the Creamery Company, and the amount paid him was deducted by the Creamery Company from the amount due the dairymen. "Among the numerous tests which have been from time to time suggested for the determination of the question, Whose servant is this? are the following, each of which has in some case been considered as conclusively fixing the existence of the relation: (1) The right of selecting the servant; (2) the right to discharge the servant; (3) the right to control the servant; (4) that he is not a master who is interested in the ultimate result of the work done as a whole, but not in the details of its performance." N.O., etc., R.R. v. Norwood, 62 Miss. 565 . All the testimony shows that the Brookhaven Creamery Company was engaged in the creamery business and was buying milk from dairymen throughout the country. That numerous trucks were being run for the hauling of this milk; that the milk was delivered by the truck drivers to the plant of the Creamery Company, and unloaded on the place provided for receiving milk. It shows that Hugh Nettles was engaged in driving one of the trucks that hauled milk every day to the creamery plant at Wesson, and that the milk he hauled was unloaded by him onto the place provided by the Creamery Company for receiving the milk. In other words, it shows that Nettles was engaged in and about the business which was for the benefit of the Creamery Company and in its interest, and that the milk hauled by him was delivered by him to the premises of the appellee. The fact that Nettles was engaged in work for the benefit of the Creamery, in its interest, and about its premises was of itself sufficient to make a prima facie case of master and servant, and shift the burden of showing another relationship to the appellee. 39 C.J. 970, Sec. 1191; Miss. Public Service Co. v. Scott, 178 Miss. 875 ; 14 R.C.L. 78, par. 15. To establish the relationship of master and servant it is not necessary to prove a special contract or any contract. It is sufficient to show facts and circumstances from which an agreement or contract may be implied. 39 C.J. 1270, Sec. 1455; Woods v. Clements, 113 Miss. 720 ; N.O., etc., R.R. v. Norwood, 62 Miss. 565 ; Meridian Taxicab Co v. Ward, 186 So. 636 . While we do not see how under the evidence in this case there could be any doubt as to the relation of master and servant existing, yet if it be said that the evidence is conflicting, it should have been submitted to a jury for determination. 39 C.J. 54, Sec. 34. Brady, Brady, Phillips James, for appellee, on merits. Appellants insist that the fact that Nettles was engaged in work for the benefit of the appellee in its interest and about its premises, was of itself sufficient to make a prima facie case of master and servant and shifts the burden of showing another relationship to the appellee. Appellee contends exactly to the contrary. The evidence in the case at bar does not show that the deceased was on appellee's premises, that the work at the time of the injury to the deceased, was for the benefit of appellee. It is possible for the entire truck load of milk to have turned over and been rendered absolutely useless for sale to the appellee. 39 C.J., p. 1269, Sec. 1454, and p. 1316, Sec. 1518, and p. 1319, Sec. 1521. Appellee insists that upon the tests named and upon the positive statement of the court that no universal formula covering all cases, may be announced, that the case at bar was rightfully decided by the court below when a peremptory instruction was granted. An independent contractor is one who renders service in the course of an occupation representing the will of his employer only as to the result of his work and not as to the means by which it is accomplished. Callahan v. Raburn, 110 Miss. 108 . Applying the test fixed in this case to the case at bar, it is evident that if Homer Britt was not employed by the milk producers and had no connection with the appellee, then he was an independent contractor, for the reason that the appellee was interested only in the "result" of Homer Britt's work and not as to the "means by which it was to be accomplished." That which interested the appellee was the sale to it of milk which it could process or resell. The appellee had a right to decline to receive, when the condition of the milk sold by the milk producers was such as would impair the "result of the work," but the mere right to decline to purchase the milk cannot be construed to mean that the details of the work were controlled by the appellee. The court likewise says: "When, in addition to the right to direct the manner in which work is to be done by the servants of a contractor, the principal employer reserves the right to require the contractor to discharge such of his servants as are not satisfactory to him, then there can be no doubt that the servants of the contractor are servants of the principal employer." Applying this test, which is the most favorable one for the appellants, the record discloses the fact that the appellee did not reserve the right to require Homer Britt to discharge Hugh Nettles; in fact, Hugh Nettles had been in the employment of Homer Britt for some months before appellee had any knowledge of the fact. There is not a hint in the record that appellee had a right to require Homer Britt to discharge Hugh Nettles and, therefore, under the test laid down in this case, there can be no recovery against the appellee. Hutchinson-Moore Lbr. Co. v. Pittman, 154 Miss. 1 ; Crescent Baking Co. v. Denton, 147 Miss. 639 ; Louis Werner Sawmill Co. v. Northcutt et al., 161 Miss. 441 ; McDonald v. Hall-Neely Lbr. Co., 165 Miss. 143 ; Cook et al. v. Wright, 177 Miss. 644 . Such contract as existed was between Homer Britt and the milk producers and between Hugh Nettles and Homer Britt, with whom the appellee had no concern. It was interested in the net result of having milk sold to it in such manner as would enable it to handle the milk sold to it on a profitable basis, and it therefore had a right to see in obtaining the net result that it did not accept split milk shipments. The net result, of course, was to purchase milk in such manner as would enable appellee to successfully handle the milk and this in itself could not be done with split shipments. The mere fact that it declined to accept split shipments did not create the relation of master and servant between it and Hugh Nettles, or between it and anyone else. Crosby Lbr. Mfg. Co. v. Durham, 181 Miss. 559 . Appellee insists that the record in this case discloses the fact that Hugh Nettles and Homer Britt were not in its employment, and any negligence on the part of either or both of them could create no liability against it. That they were not its servants. That it was not their master. That their behavior insofar as appellee is concerned, was as if they were strangers to it. But, if appellee is mistaken in this contention, then it certainly cannot be said that Homer Britt was not an independent contractor and as such, neither he nor his employee, Hugh Nettles, could create any liability against the appellee. There was no question under the facts in the court below to be submitted to the jury. The facts did not from any viewpoint place appellee under any liability for the death of Albert Earl Furr. Appellee, therefore, respectfully insists that this case should be affirmed. Argued orally by R.L. Jones, for appellants, and by T. Brady, Jr., for appellee.

Opinion of the Court

On Motion to Strike.

McGowen, J.,

delivered the opinion of the court on motion to strike.

On the appeal of Furr and others, as heirs at law of Albert Furr, the appellee, the Brookhaven Creamery Company, moves to strike the stenographer’s notes on file herein from the record.

The undisputed facts pertinent to this motion are as follows: A. L. Furr and others, as next of kin and heirs at law of A. E. Furr, brought an action for damages against the Brookhaven Creamery Company and Hugh Nettles, • alleging negligence on the part of Nettles as the agent'or servant of the Brookhaven Creamery Company, causing injuries to Albert Earl Furr resulting in death.

In the trial of the case in the court below at the conclusion of the appellants’ evidence, the Brookhaven Creamery Company and Hugh Nettles, the defendants *12 there, moved the court to exclude the evidence offered by the plaintiffs and grant to each of them a peremptory instruction.

The court below granted to the Brookhaven Creamery Company a peremptory instruction and entered a separate judgment for that defendant on that instruction. The court overruled said motion as to Hugh Nettles. Thereafter the evidence was offered before the jury on behalf of Hugh Nettles and rebuttal thereto, six or seven witnesses being examined. According to the stenographer’s certificate, which is undisputed, while the last witness was on the witness stand plaintiffs in the court below entered a motion for a non-suit on the ground that Nettles was insolvent. The court sustained the motion and the order was accordingly entered. Several days later appellants here, plaintiffs in the court below, made a motion for a new trial, alleging as ground therefor the action of the court in granting a peremptory instruction in favor of the Brookhaven Creamery Company. That motion was overruled by the court as shown by the order now in this record from which an appeal is prosecuted to the Court by Furr, et al.

In making up the record the attorneys for the appellants instructed the stenographer not to transcribe her notes of the evidence taken on behalf of Hugh Nettles subsequent to the granting of the peremptory instruction, and the entry of the judgment discharging the Brookhaven Creamery Company from liability.

The stenographer so transcribed the notes in due time, upon due notice, and also in compliance with the instructions of plaintiffs’ attorneys, only transcribed the notes of the evidence introduced by the plaintiffs prior to the time the court below granted the peremptory instruction in favor of- the Brookhaven Creamery Company, and did not transcribe the notes of the evidence offered by Hugh Nettles in his defense to the action. When the stenographer filed a transcript of her notes in due time, upon due notice, she notified all the attorneys *13 of the filing of the transcript of the notes of the evidence, bnt the record shows that the appellants ’ attorney at no time indorsed on the notes a certificate at the expiration of ten days, that the said notes had been delivered or mailed to the attorneys for the appellee. In fact, this was not done by appellants’ attorneys. In this state of the record, the stenographer’s notes would be stricken from the record because of the failure of counsel for the appellants at the expiration of ten days, the time allowed appellants ’ attorneys, to examine and correct the record, to certify that the said transcript was mailed or delivered to appellees’ attorneys. This is required by Section 726, Code of 1930, bnt under Section 728 it is provided that: “If notice as above required is given to the court reporter by appellant or his counsel within ten days after the conclusion of the .terms of court, no court reporter’s transcript of his notes shall be stricken from the record by the Supreme Court, for any reason, unless it be shown that such notes are incorrect in some material particular, and then only in cases where such notes have never been signed by the trial judge, nor been agreed on by the parties, nor become a part of the record as provided by this chapter. ’ ’

The transcript in this case had never been signed by the trial judge, nor been agreed on by the parties, nor had the certificate of the delivery of the record as corrected been attached thereto by appellants ’ counsel. In the case of Wilkinson v. Love, 149 Miss. 517, 111 So. 457,, 458, we held as follows: “The stenographer’s certificate to the transcript discloses that he filed it within the required time, and notified the attorneys thereof, but no certificate of the appellant’s attorneys is indorsed thereon disclosing that they delivered or mailed it to the appellee’s attorneys; consequently the transcript did not become a part of the record as provided by the statute, from which it follows that, if it is incorrect in some material particular, we must strike it from the record. ’ ’

Then the question is squarely presented that the evi *14 dence offered subsequent to the granting of the peremptory instruction for appellants here is material, in that it shows that Hugh Nettles was not liable in the action, and therefore the Brookhaven Creamery Company for that reason could not be held liable, and therefore the court below did not err in overruling the motion for a new trial.

Assuming that the evidence offered on behalf of Nettles after the Brookhaven Creamery Company had been discharged from liability by judgment duly entered might be material, in that it tended to bolster or support the action of the court below when it granted the peremptory instruction to the appellee, Brookhaven Creamery Company, we know of no rule of law by which the trial judge on a motion for a new trial could look to the subsequent record for evidence to support the ruling of the court in granting a peremptory instruction at the time it was granted. When the peremptory instruction was granted the Brookhaven Creamery Company was no longer concerned with the trial between the plaintiffs and the defendant, Nettles. It was no longer concerned with his liability and upon a motion for a new trial, the question is, did the court err in granting the peremptory instruction at the conclusion of plaintiffs’ evidence. We think this case has been settled in H. Weston Lumber Co. et al. v. Hibbens, 182 Miss. 669, 182 So. 115, 116, in which case Hibbens sued H. Weston Lumber Co., Pearson and David J. Joseph Company. At the conclusion of the plaintiffs’ evidence the court granted to Joseph Company a peremptory instruction and thereafter proceeded with the trial against the remaining two defendants. A. verdict and judgment was rendered against them. Weston Company and Pearson appealed to this Court and Hibbens filed his cross-appeal from the judgment in favor of Joseph Company. In that state of the record, this Court said: “Error, vel non, in the ruling of the court relieving Joseph Company from liability must be determined on the evidence then before it, for Joseph Company there *15 after had no fiorther concern with the trial of the case and cannot he charged with the evidence thereafter introduced.” (Italics ours.)

So we must say in this case that the Brooldiaven Creamery Company cannot be benefited by tbe evidence thereafter introduced, in tbe litigation between tbe plaintiffs and Niettles, that is, after it’ bad been discharged from liability on a peremptory instruction. A motion for a new trial does not change this sound rule, nor do we understand that on such a question tbe trial judge is invested with any more power or discretion than is this Court. If this Court could not look to tbe subsequent record, then bow could tbe trial judge on a motion for a new trial include evidence offered subsequent to its action in granting tbe peremptory instruction so as then to bolster or support that instruction, although it might have been improperly granted at tbe time tbe evidence for tbe plaintiffs was concluded. It will not do to bold that evidence offered after a party has been discharged from tbe court is either to bind him or be charged against him or to operate in bis favor or otherwise affect tbe ruling of tbe court theretofore made.

We are of opinion that tbe case of Dickerson v. Western Union Telegraph Company, 111 Miss. 264, 71 So. 385, has no application to tbe undisputed facts in this motion. The question there was when a judgment became final as to several defendants and when tbe statute as to time for appeal began to run, and in that case it was held as to appeal that tbe judgment was not final for purposes of appeal to this Court until a judgment bad been entered as to all the defendants.

We conclude in this case that tbe evidence offered by Nettles after tbe Brooldiaven Creamery Company bad been discharged from liability by tbe judgment of tbe Court or tbe granting of tbe peremptory instruction cannot be held to affect materially and favorably or adversely the appellee here.

Motion overruled.

Addendum

*16 On the Merits.

McG-owen, J.,

delivered the opinion of the court on the merits.

On September first, 1936, Earl Furr was run over by a truck loaded with milk, driver by one Hugh Nettles; and from the injuries suffered he died in about fifteen minutes. The heirs at law brought an action for damages for the death of their intestate against the Brook-haven Creamery Company and Hugh Nettles, alleging that the latter was the agent or servant of the Creamery Company. At the conclusion of the evidence for the plaintiff in the court below, the judge granted a peremptory instruction in favor of the Creamery Company, but held that as to Hugh Nettles it was a question for the jury. From the judgment in favor of the Creamery Company in the court below, the plaintiffs prosecuted an appeal to this Court.

We are of the opinion that the Creamery Company was entitled to a peremptory instruction for two reasons; first, the facts did not warrant the submission of the case to the jury on the question of the liability of Hugh Nettles, should it be held that Nettles was the agent or servant of the Creamery Company; second, that Hugh Nettles was not the employe, agent or servant of the Creamery Company.

Earl Furr, about sixteen years of age, was killed while undertaking to get aboard the truck loaded with milk, en route on the public highway to Wesson, Mississippi, there to deliver the milk to the Brookhaven Creamery Company at its depot. Nettles was driving the truck for Homer Britt, for which he was paid $20 a month by Britt, who owned the truck and hired Nettles; and was himself paid thirty cents per hundred by the farmers or dairymen whose milk was transported in his truck for delivery to the Creamery Company. This charge for hauling was deducted by the Creamery Company from the proceeds *17 of the milk so transported; and at stated.intervals Nettles, driver of the track, would deliver to the dairymen checks for their milk less the hauling charge, and to Britt for the amount due him for hauling it.

0!n the morning of the accident sustained by Earl Furr, Nettles was proceeding to Wesson, and when several miles therefrom, and in front of the Furr home, the right fear wheel of the truck, heavily loaded with milk, ran over young Furr, who received injuries from which he died in a few minutes. The home of the Furrs was on the right side of the truck as it proceeded toward Wesson. The driver, Nettles, was seated on the left side, while beside him on the seat, on the right side of the track, was Miss Smith. The only eye-witness of the accident, Mrs. Furr, mother of the decedent, was examined in respect to the details of the accident. She was about fifty steps from where it occurred. Miss Smith, although in court, was not examined. Hugh Nettles, driver of the truck, was placed upon the witness stand by the plaintiffs in the court below, but was carefully not examined in regard to the details of young Furr’s death. Miss Smith was in the courtroom, and although she was certainly in a position to know the circumstances surrounding the fatal accident to the boy, sbe was not called as a witness.

Mrs. Furr’s testimony was to tbe effect that her son was accustomed to ride with the driver, Nettles, to Wesson two or three times a week; that on the morning in question her son raised his hand to flag Nettles, who was looking at the highway in the direction in which he was proceeding, and as the truck passed the boy at a speed of eight or ten miles an hour, he caught the door of the cab, and as the truck speeded up, fell and was run over by the rear righthand wheel of the truck. She further said she believed that the driver, Nettles, saw her son immediately before and at the time of the accident; but on cross-examination admitted that she did not know *18 whether Nettles saw her son flag the truok and attempt to board it.

We are of opinion that in order to predicate negligence on the part of Nettles it was necessary to show, either by direct testimony or snch circumstances as would lead to the fair inference, that Nettles saw young Furr, and negligently speeded up his truck while aware of Furr’s effort to board it; and that he could have foreseen that increasing speed at that moment might result in injury to Furr. We do not think that it can fairly be inferred from Mrs. Furr’s evidence that the driver of the truck was aware of Furr’s perilous situation when he speeded up the truck.

The death of young Furr, therefore, as shown by this record, was not due to negligence on the part of Nettles; and the jury could only have reached a verdict for the plaintiff had the case been submitted upon mere conjecture, instead of these facts. The courts cannot base judgment upon mere conjecture or possibility.

The circumstances show, first, that the driver of the truck was looking ahead as he proceeded along the highway, with Miss Smith seated beside him in the cab, between him and the side next to the Furr Home; Nettles was not examined or asked any questions tending to show that he knew or appreciated the situation of the unfortunate young man.

Second, the evidence shows beyond question that Britt, the owner of the truck, had bought the route from another sometime before the occurrence of this accident; that he had employed Nettles to drive; that the Brook-haven Creamery Company had no control whatever over the employment of a driver by Britt. We think the evidence shows beyond question, expressly or by implication, that Britt was the agent or servant of the several dairymen whose’ milk he transported to the Creamery Company’s depot to be processed. The fact is that although several of the dairymen testified that they had no contract with Britt, the circumstances here detailed show *19 that after his purchase of the route, and his employment of a driver to transport the milk, the farmers placed their milk on the side of the road to be picked up by his truck, received the empty cans back after the milk had been delivered, and received their checks for the net proceeds of their milk, as hereinbefore stated. All of which constituted an implied contract between Britt and the dairymen. By their checks and statements they were aware that thirty cents per hundred pounds was charged for the hauling of their milk. Nothing in the evidence indicates that Nettles was the joint servant of Britt and the Creamery Company. The milk belonged to the farmers until delivered to, and accepted by, the Creamery Company. That Company, in the energetic prosecution of its business, presumably engaged in for profit, had declined to receive split shipments of milk— by which is meant the delivery by a truckman of part of the milk on his truck to the Company, and part to a competing creamery company, causing confusion and delay to one creamery or the other. The Creamery Company had the right to require that the milk should be handled in a sanitary manner before being delivered to it.

At one time, some two or more years prior to this accident, the Creamery Company paid a bonus to the drivers for increased delivery of milk — this to stimulate the activity of the truckmen in securing milk. The more weight in milk the truckman delivered, the larger his bonus; the more milk the creamery received, the larger its business.

The record shows that the manager of the Creamery Company had declined to receive milk from a truckman who trespassed upon the route of another, thus endeavoring to protect the integrity of the routes. One truckman said that he preferred to haul to the other company if the majority of his patrons so desired; and acting in accordance with the will of the majority, he ceased to haul milk to this Creamery Company.

In the case of Kisner v. Jackson, 159 Miss. 424, 132 *20 So. 90, was set forth quite a list of tests as to the relation of master and servant, as distinguished from an independent contract. In the case of Texas Co. v. Mills, 171 Miss. 231, 156 So. 866, 869, this Conrt, quoting from Rest. Agency gave terse and accurate definitions, so far as possible, of what constitutes a servant, and what constitutes an independent contract.

In the complex and varied relations of the service engaged in, it is impossible to announce any test which would govern all cases. But examining all the authorities, beginning with New Orleans, B. R., V. & M. R. Co. v. Norwood, 62 Miss. 565, 52 Am. Rep. 191, down to and including Meridian Taxicab Co. v. Ward (Miss.), 186 So. 636, 120 A. L. R. 1346, no test has been mentioned which could be applied to the facts of this case, which would authorize holding Nettles to be the servant or agent of the Creamery Company. The case of the Meridian Taxicab Co. v. Ward is more nearly in line with appellant’s contention here; but there the facts are so different from the facts of this case as not to be controlling here. No case can be cited with confidence as applying in all respects to the facts of the case at bar. We think that the Creamery Company did not control the truck-men in the details of taking up and delivering milk; all its acts in regard to the handling of milk looked to results at their depots. We think the case falls squarely within the rule and reasoning of Cook v. Wright, 177 Miss. 644, 171 So. 686, and Crosby Lbr. & Mfg. Co. v. Durham, 181 Miss. 559, 179 So. 285, 854. We shall not enter into an analysis of the facts of the case at bar, and comparison thereof with the facts of the above-mentioned cases.

For the reasons stated, the peremptory instruction was properly given.

Affirmed.

Case-law data current through December 31, 2025. Source: CourtListener bulk data.