L.C. Benjamin v. Cornwell Well Service
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IN THE COURT OF APPEALS
OF THE
STATE OF MISSISSIPPI
NO. 2001-CA-00888-COA
L.C. BENJAMIN
v.
CORNWELL WELL SERVICE
DATE OF TRIAL COURT
JUDGMENT:
TRIAL JUDGE:
COURT FROM WHICH APPEALED:
ATTORNEY FOR APPELLANT:
ATTORNEY FOR APPELLEE:
APPELLANT
APPELLEE
05/21/2001
HON. KEITH STARRETT
LINCOLN COUNTY CIRCUIT COURT
D. L. JONES JR.
JOSEPH L. MCNAMARA
DONNA H. WRIGHT
JOHN MICHAEL COLEMAN
NATURE OF THE CASE:
CIVIL - PERSONAL INJURY
TRIAL COURT DISPOSITION:
SUMMARY JUDGMENT GRANTED IN FAVOR OF
CORNWELL WELL SERVICE, INC.
DISPOSITION:
AFFIRMED - 06/25/2002
MOTION FOR REHEARING FILED: 7/9/2002; denied 9/17/2002
CERTIORARI FILED:
MANDATE ISSUED:
BEFORE McMILLIN, C.J., MYERS, AND CHANDLER, JJ.
MYERS, J., FOR THE COURT:
¶1. This is an appeal from a grant of summary judgment in the Circuit Court of Lincoln County, with the
Honorable Keith Starrett presiding. L. C. Benjamin sued Cornwell Well Service for negligent entrustment
of a deadly weapon, a truck, after he was run over by the truck. Finding that no disputed material facts
existed, the court granted summary judgment in favor of Cornwell. It is this holding of the court that
Benjamin now appeals. Finding no error, we affirm.
FACTS
¶2. In the morning hours of October 11,1998, L. C. Benjamin was run over by a Cornwell Well Service
truck. This truck was driven by Robert Bryan Smith, a friend of George Case, the Cornwell employee
entrusted with the truck. While employed as a floor hand for Cornwell, Case was allowed use of a
company-owned truck for travel to and from job sites. He was instructed that he was the only person
allowed to drive the truck, that he was not to drink and drive, and that he was not to use the truck to travel
to purchase alcohol. He was also prohibited from having passengers in the truck other than those employed
with Cornwell.
¶3. On the morning in question, Smith came to Case requesting a ride into town. Case refused but finally
relented. However, Case permitted Smith to drive because Case was very hung-over from the previous
night. Unbeknownst to Case, Smith had a suspended license due to a previous DUI arrest. After Smith
struck Benjamin, Smith fled the scene in the truck. Later the police located the truck and Case and took
Case in for questioning.
STANDARD OF REVIEW
¶4. Our standard of review for summary judgment is de novo. We will not affirm summary judgment "if the
pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any,
show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment
as a matter of law." Robinson and Robinson v. Ratliff and Johnson, 757 So. 2d 1098 (¶6) (Miss. Ct.
App. 1999) (quoting Spartin Foods Systems, Inc., v. American Nat'l. Ins. Co., 582 So. 2d 399, 402
(Miss. 1991)). All that is required of a non-moving party to survive a motion for summary judgment is to
establish a genuine issue of material fact by the means available under M.R.C.P. 56(c). Id.
DISCUSSION
¶5. In order for the master to be liable for damage caused by his servant, the servant must be acting within
the course and scope of his employment. Partrige v. Harvey, 805 So. 2d 668, 670 (¶5) (Miss. Ct. App.
2002).
In order for the master to escape liability, it must be shown that the servant, when the wrongful act
was committed, had abandoned his employment and gone about some purpose of his own not
incident to his employment.
Id. Case was not acting within the course and scope of his employment when he allowed a non-employee
to drive his truck on the way into town. In addition, this accident occurred on a Sunday morning. Sunday is
not one of the days that Case works for Cornwell and a trip to town does not qualify as being in the scope
of his employment, since it was not "of the same general nature of, or incidental to, the conduct authorized"
by his employer. Id.
¶6. Benjamin asserts that because Cornwell did not fire Case the time he was caught with a non-employee
passenger, he was negligently retained and liability can be imputed to Cornwell through Case. We are
unable to see the causal connection between Case carrying a passenger and Case allowing someone else to
drive his vehicle which then struck a pedestrian. Benjamin wants this Court to reverse the ruling of the lower
court because he claims the material fact in question is whether Case was negligently retained. With the
record provided, we likewise find that summary judgment was appropriate.
¶7. THE JUDGMENT OF THE CIRCUIT COURT OF LINCOLN COUNTY IS AFFIRMED.
ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.
McMILLIN, C.J., KING AND SOUTHWICK, P.JJ., BRIDGES, THOMAS, LEE,
IRVING, CHANDLER AND BRANTLEY, JJ., CONCUR.
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