Moreland v. Kimes & Stone Const. Co.
| Docket Number: | 2003-CA-01929-COA Linked Case(s): 2003-CT-01929-SCT |
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| Court of Appeals: |
Opinion Link Opinion Date: 09-21-2004 Opinion Author: Lee, P.J. Holding: Reversed and Remanded |
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| Additional Case Information: |
Topic: Wrongful death - M.R.C.P. 56 - Employment relationship Judge(s) Concurring: King, C.J., Bridges, P.J., Irving, Myers, Chandler, Griffis and Barnes, JJ. Procedural History: Summary Judgment Nature of the Case: CIVIL - WRONGFUL DEATH Writ of Certiorari: Denied Appealed from Court of Appeals |
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| Trial Court: |
Date of Trial Judgment: 08-05-2003 Appealed from: Prentiss County Circuit Court Judge: Paul S. Funderburk Disposition: MOTION FOR SUMMARY JUDGMENT GRANTED IN FAVOR OF KIMES & STONE Case Number: CV 02-341F(PR) |
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| Party Name: | Attorney Name: | |||
| Appellant: | Agnes V. Moreland |
JOSEPH C. LANGSTON
ALAN M. PURDIE
R. H. "BO" BURRESS
RICKY L. BOGGAN |
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| Appellee: | Kimes & Stone Construction Company | JAMES E. PRICE |
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Synopsis provided by:  If you are interested in subscribing to the weekly synopses of all Mississippi Supreme Court and Court of Appeals hand downs please contact Tammy Upton in the MLI Press office. |
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| Topic: | Wrongful death - M.R.C.P. 56 - Employment relationship |
| Summary of the Facts: | Kenneth Moreland died when the vehicle he was driving was struck by a vehicle driven by James Sappington. Agnes Moreland, widow of Kenneth Moreland, filed suit as a wrongful death beneficiary against Kimes & Stone Construction Company. Kimes & Stone filed a motion for summary judgment, arguing that Sappington was not the company's employee, or that if he was, he was not engaged in the course and scope of that employment at the time of the accident. Moreland also moved for summary judgment. The court granted Kimes & Stone's motion and dismissed the cause with prejudice. Moreland appeals. |
| Summary of Opinion Analysis: | The traditional features of an employment contract are consent of the parties, consideration for the service rendered, and control by the employer over the employee. When a motion for summary judgment is made and supported as provided in M.R.C.P. 56, an adverse party may not rest upon the mere allegations or denials of his pleadings but must set forth specific facts showing that there is a genuine issue for trial. If he does not meet this burden, summary judgment, if appropriate, shall be entered against him. In this case, neither side has met its burden. From the deposition testimony submitted as exhibits to the motions for summary judgment, there are definitive questions of fact for the jury to consider regarding what control Kimes & Stone had over Sappington. The question concerning at which point in time, if any, did Kimes & Stone and Sappington create the employer/employee relationship is a question of fact for the jury to determine. |
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