Richards v. City Lumber Co.

• Decision Date: 25 March 1912
• Docket Number: 15,420
• Citation: 57 So. 977,101 Miss. 678
• Court: Mississippi Supreme Court
• Parties: JAKE RICHARDS v. CITY LUMBER CO

57 So. 977

101 Miss. 678

JAKE RICHARDS v. CITY LUMBER CO

No. 15,420

Supreme Court of Mississippi

March 25, 1912

APPEAL from the circuit court of Pike county, HON. D. M. MILLER Judge.

Suit by Jake Richards against the City Lumber Company. From a judgment for defendant, plaintiff appeals.

The facts are fully stated in the opinion of the court.

Affirmed.

Brady &amp Dean, for appellant.

We desire to call the attention of the court especially to what we believe to be serious errors committed by the trial judge as follows:

First in refusing to grant to plaintiff below the instruction asked by him, and refused, numbered "4."

Second, in granting to defendant below the instructions asked by it, and given, numbered "6" and "11."

With regard to the first point noted, we beg to quote again the instruction refused:

"The court instructs the jury for the plaintiff that if they believe from the evidence in the case that Lucius Magee, in the absence of Skean, was by the defendant authorized to perform the duties of the superintendent, and that at the time the plaintiff was injured he was in charge of the planing machines performing the duties of the superintendent, and saw the machine choke, or, by the exercise of reasonable care could have seen it, then it was his duty, as superintendent in charge, to direct the manner of handling the machine; and if they believe from the evidence, that with knowledge of the trouble he neglected and failed to direct the handling of the machine after it choked, and he left plaintiff to his own resources, and that the plaintiff, while exercising reasonable care and caution, was injured by the breaking of a belt which was defective, or defectively laced, then they will find a verdict for plaintiff, even though they may believe the lumber being passed through the machine was too large and choked the machine."

Appellant contends that this instruction correctly stated the law and there was no good reason for not granting it. It is not an instruction on the weight of evidence, for it does not say that Lucius Magee was acting superintendent in the absence of Skean, but leaves that to the determination of the jury; it further leaves to be determined by the jury the question of whether or not he neglected and failed to direct the handling of the machine, with knowledge of the trouble; and states finally that "if they believe from the evidence that the plaintiff, while exercising reasonable care and caution, was injured by the breaking of a belt which was defective, then, . . . etc." The saving expression, "if they believe," applies to every question stated in the instruction, to the condition of the belt as well as the status of Lucius Magee. The jury are not precluded by it from finding that the belt was defective, but are instructed that if they believe that plaintiff was injured by the breaking of a belt which was defective, and the other facts theretofore stated are found to exist by them, then they will find for plaintiff.

There was testimony offered upon every point mentioned in the instruction. There was testimony that Lucius Magee was in charge of the mill and machinery in the absence of superintendent Skean, and this testimony came from defendant's witnesses as well as plaintiff's. It was "up to the jury" to decide whether or not by authority or custom he stood in the place of the superintendent, in his absence, and was vested with the same powers; there was testimony from which the jury could say that at the time of this accident Lucius Magee, the acting superintendent, saw the machine choke, or could and should have seen it choke; there was testimony from which they could say that he failed and neglected to perform the duties of acting superintendent and left plaintiff to his own unaided resources; there was testimony that the belt was not in a good condition, but was defective and worn; there was abundance of testimony that the belt was defectively laced, witness Morris' testimony on this point being different from what it is stated by appellee to have been, as he stated that he never used wire lacing, used lace leather, laced his belts double, which was more substantial than the single lace, which was a cheap and easy way only. There was also testimony that plaintiff was exercising a proper degree of care and caution. This being true, how can it be denied, as a matter of law, that if Magee, in the absence of the superintendent, became superintendent in charge of the machine, and if he saw the machine choke, and if he failed to exercise his duties, and if the belt was defective or defectively laced, and if plaintiff exercised reasonable care and caution and was injured by the breaking of the belt, then he should recover damages from defendant? Yet that is what the instruction did set forth--and the lower court refused.

This is a true statement of the law, even though appellee should go so far as to claim that Magee did not possess the dignity of a vice principal. See Bradford v. Taylor, 85 Miss. 409.

The proof did not show that Skean was within fifteen or thirty feet at the time of the accident, or when the machine choked, but his own testimony shows that he was outside of the mill, and out of sight of Richards, while Magee was right on the scene. Further, the instruction was not calculated to relieve Richards of the effect of his own negligence, if he was guilty of such. It was and is a good instruction.

With regard to the error committed by the trial judge in giving to defendant the instructions numbered "6" and "11," which read as follows:

"6. The court instructs the jury for the defendant that if you believe from the evidence that the plaintiff was injured by reason of his own negligence, or that his own negligence contributed proximately to his injury, then you must find for the defendant."

"11. The court instructs the jury for the defendant that even though you may believe from the evidence that the belt was in a defective condition, yet if you believe plaintiff knew it, or could have known it by the exercise of reasonable care, and that he voluntarily used it in that condition, and was thereby injured, then he cannot recover in that case, and you should find for the defendant."

These are in direct violation of the law as laid down in chapter 135, Laws of Mississippi of 1910, which it is needless to quote here, except its opening phrase, namely, "In all actions hereafter brought. . . ." This act was approved April 16, 1910, while the suit in question was not filed until January 12, 1911. The objections urged to this act so far as its "retroactive" feature is concerned, while naturally to be expected from appellee, are yet without merit. Only two of the authorities cited by appellee are in point, namely Reed & Co. v. Beall, 42 Miss. 472, and Powers v. Wright Bros., 62 Miss. 35, which bear out the rule laid down in 8 Cyc. 1017 (X. A. 2) and 1019 (X. A. 3), (b, c); also 36 Cyc. 1213, paragraph 2.

No vested rights are disturbed by the retrospective action of this law, no obligation of any contract impaired, no change made except that by this statute the common law is more clearly enunciated, and it is the duty of the trial judge to charge the juries accordingly. This was not done in this case, and there is no escape from the consequence of this failure on his part. The act is constitutional. See Natchez & Southern Railroad Co. v. Crawford, 55 So. 596.

Price & Price, for appellee.

On the 16th day of April, 1910, long after the appellant had been injured, and the rights and liabilities of the parties fixed by existing laws, the legislature of Mississippi passed the following act:

"In all actions hereafter brought for personal injuries or where such injuries have resulted in death, the fact that the person injured may have been guilty of contributory negligence shall not bar a recovery, but damages shall be diminished by the jury in proportion to the amount of negligence attributable to the person injured.

"Sec. 2. All questions of negligence and contributory negligence shall be for the jury to determine.

"Sec. 3. That this act shall take effect and be in force from and after its passage.

"Approved April 16, 1910."

There was no effort on the part of able counsel for the appellant in the trial of this cause in the circuit court to make Ch. 135 of the Laws of 1910 applicable to this case, but, in reading their brief we find it is sought here to make that statute apply, whereas the injuries were received, and the rights of the parties fixed, under the law existing at the time, long before the passage of the act above quoted.

Appellant claims that this statute is retrospective, and the rights of the parties must be determined by it and not by law in force at the time of the accident.

The mere fact that this act was not in existence at the date of the injury complained of, but was enacted by the legislature long thereafter, in our judgment is an all sufficient answer, and should put at rest that question.

It is not our contention that no retrospective law can be passed in Mississippi; but if such a statute is passed and is not by its terms wholly retrospective, then it will not be declared by the court retrospective. It must expressly, positively and certainly be so declared in the face of the statute. Such a statute is so closely akin to an ex post facto law, and carries with it so much of its mischief, that it could not be construed by the court as retrospective. To so construe it would be to impair vested rights.

In Carson v. Carson, 40 Miss. 349, this court said "Courts of justice always express the strongest disapprobation of such legislation and will never be persuaded that the legislature intends to give a retrospective effect to its enactment without...