Allen v. McIntosh Lumber Co.

• Decision Date: 04 March 1918
• Docket Number: 20012
• Citation: 77 So. 909,117 Miss. 156
• Court: Mississippi Supreme Court
• Parties: ALLEN ET AL. v. MCINTOSH LUMBER CO. ET AL

77 So. 909

117 Miss. 156

ALLEN ET AL. v. MCINTOSH LUMBER CO. ET AL

No. 20012

Supreme Court of Mississippi

March 4, 1918

Division B

APPEAL from the circuit court of Jackson county, HON. JAS. H NEVILLE, Judge.

Suit by Hattie Allen and others against the McIntosh Lumber Company and the Southern Paper Company. The court granted a peremptory instruction for the Southern Paper Company and submitted the case to the jury as to the McIntosh Lumber Company and from a judgment for defendant, plaintiffs appeal.

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

Reversed and remanded as to defendant McIntosh Lumber Company.

Mize &amp Mize, for appellant.

The first error assigned is that the court erred in admitting in evidence the marriage record or marriage license issued December 26, 1889, to Joseph Allen and Adeline Hotten.

We presume this was admitted to show that in 1889 Adeline Hotten married Jobe Allen, and that, when Jobe Allen married Harriet Turner in 1894, he had a wife living and therefore his marriage to Harriet Turner was null and void.

This was manifest error; because there is not a word of evidence nor a hint of suspicion that Jobe Allen was ever known as Joseph or Joe Allen. The record is complete that the deceased was never called or known by any other name than Jobe Allen and by what stretch the marriage license issued to Joseph Allen and Adeline Hotten could prove anything against Jobe Allen we are at a loss to understand. We submit that this is clearly reversible error; and we will ask the court to give the record most careful attention to see if it can find any evidence at all that Jobe Allen was ever known as Joe Allen or Joseph Allen.

We submit that it was also error to admit in evidence the record of divorce proceedings between Adeline Allen and Joseph Allen, said suit having been filed at August term, 1896, because there is not a squint of evidence in the record that Adeline Allen was Adeline Hotten or that Joseph Allen named in the proceedings was Jobe Allen, or that Jobe Allen, the deceased, was ever called Joe Allen or Joseph Allen.

The next error assigned is that the court erred in granting a peremptory instruction in favor of the Southern Paper Company. In discussing this assignment, we assume that Parker was the independent contractor of the Southern Paper Company. With this assumption, we contend that the Southern Paper Company is liable as well as the McIntosh Lumber Company for the injury to Jobe Allen.

The cause of the complaint in evidence is not against Parker's operation of the slasher of the Southern Paper Company at the time of the injury complained of, or that Parker was in any manner negligent or that it was through any fault in the operation of the slasher that Allen was injured; the complaint that there was faulty construction of the slasher and that the Southern Paper Company is liable because it failed to comply with its nondelegable duty of placing guards or aprons around the slasher, between the slasher and the live rollers where deceased had to work; in other words, the complaint is faulty construction of the slasher by the Southern Paper Company.

Of course, we would not contend for a moment, if the injury to Allen had occurred on account of faulty operation or negligence in the active operation of the slasher by Parker--if the slasher had been properly constructed--that then the Southern Paper Company would be liable; but we submit that the law is that a proprietor cannot lease to an independent contractor and escape liability to a third person injured when the injury grew, not out of the negligence of the independent contractor in the active operation of the machinery, but out of an inherent defect in the construction of the machinery by the proprietor.

Now, the question at bar is: Is the Southern Paper Company liable to appellants for the death of Jobe Allen, an employee of the McIntosh Lumber Company, who was killed at a time when the slasher of the Southern Paper Company was being operated in the ordinary manner by an independent contractor, as a proximate result of said slasher not being guarded, and at a time when Jobe Allen was at his proper place and at a time when the Southern Paper Company knew that the employees of McIntosh Lumber Company worked in close proximity to said slasher?

We contend that the authorities are unanimous in support of liability. Thompson on Negligence (2 Ed.), p. 647, lays down the following: "Proprietor continuously liable for his own negligence. If the negligence of the proprietor and not that of the contractor is the proximate cause of the injury then the proprietor will be liable to the person injured."

We think this is applicable exactly here, in that the negligence of the proprietor, the Southern Paper Company in not having a guard was the proximate cause of the injury.

Also, Thompson on Negligence (2 Ed.), section 650, at p. 591, which is as follows: "Proprietor liable where the injury proceeds from the nature of the work itself.--It is merely another way of stating the preceding proposition to say that the proprietor is liable on the principle of being answerable for his own negligence, where the injury proceeds from the nature of the work itself, and not from the manner in which the independent contractor has executed it. If, for any reason, the nature of the work is such that when done in the ordinary mode, it is necessarily or naturally injurious in a legal sense, to a third person, the proprietor must answer to him in damages for it.

This is exactly the state of affairs here. This work was necessarily dangerous when done in the ordinary mode. Why? Because the slasher was not guarded. At the time of the injury to Allen the slasher was being operated in the ordinary manner. That it was necessarily dangerous when being operated in the ordinary manner, the facts of the injury disclosed by the record conclusively show; and that it was realized as such is shown by the fact that it has since been guarded, as shown by the record. Section 652, Thompson on Negligence (2 Ed. ), p. 592; Thompson on Negligence, (2 Ed.), sec. 4931; Sullivan v. New Bedford Gas & Edison Light Co., 190 Mass. 288; Kanz v. J. Niels Lumber Co., 3 Neg. & Comp. Cases, p. 53, 114 Minn. 466; Lawerence v. Shipman, 39 Conn. 586; Crisler v. Ott, 72 Miss. 169; Earl v. Reid, 18 A. & E. Ann. Cas., p. 1; Bower v. Peate, 1 Q. B. 321; Kirk v. Toronto, 8 Ont. (L. R.) 730; Thomas v. Hammer Lumber Company, 32 L. R. A. 584; Davis v. Summerfield, 133 N.C. 325, 63 L. R. A. 492; Covington v. Steinbrock, 61 Ohio 215, 76 Am. St. Rep. 375, 55 N.E. 618.

Summing up the liability of a proprietor for the injury of a third person injured in the course of the operation of an appliance in the ordinary manner by an independent contractor, we submit that the law is, that the proprietor cannot let a dangerous premise to an in-independent contractor and not be liable for the injury by the ordinary operation of said premises by the independent contractor on account of a defect in the premises.

We therefore submit that this case should be reversed as to the Southern Paper Company also for this error. The Southern Paper Company knew or should have known that the slasher, which had been in operation for two years, was in close proximity to the live rollers of the McIntosh Lumber Company, where the McIntosh Lumber Company's servants, including Jobe Allen, had to work; and there was no excuse for such unguarded condition.

White & Ford, for appellees.

The case made by this record is exceedingly weak on the question of liability. There was no negligence shown in the construction or operation of the slasher. How can it be said that the machine is manifestly dangerous in the face of the proof that it threw one slab, contrary to the manner in which it was supposed to work in from three to five years continuous operation. It was not disputed that this slasher was constructed in the same manner as the only other slasher in use in Moss Point and vicinity. It was in testimony that the same slashers were in operation at the Bounds mill and the Dantzler mill, That in neither of these was any screen or guard placed between the slasher saws and persons working in the mill, but the construction of the machine was such that any slabs that might get caught in the saws would be thrown out of the building instead of into it, and there was an opening in the wall of the mill through which slabs were calculated to pass, thus going outside, instead of through the interior of the building. An employer is not a guarantor of the safety of his employees, but only owes them the duty of furnishing them a reasonably safe place in which to work. This rule would apply as to the McIntosh Lumber Company, but not as to the Southern Paper Company, between whom and the deceased Allen there existed no contractual relation whatever, or even between the deceased Allen and the independent contractor Parker, so far as that is concerned.

Learned counsel for appellant has cited no case and cannot cite any which holds that the mere happening of one dangerous incident in a period of from three to five years operation of a machine, contrary to the usual method of operation, that would justify the characterization of such machine as dangerous. The test as stated by Thompson in his Commentaries on the Law of Negligence in Vol. 8, section 28, is:

"A person is required to anticipate and guard against what usually happens or is likely to happen; but this does not require him to anticipate and provide against that which is unusual and not likely to happen, or that which is only remotely and slightly probable. The general test in such cases is, not whether the injurious result or consequence was possible, but whether it was...