Anderson v. Cumberland Telephone & Telegraph Co.

• Decision Date: 17 July 1905
• Court: Mississippi Supreme Court
• Parties: FRANCES E. ANDERSON v. CUMBERLAND TELEPHONE AND TELEGRAPH COMPANY

38 So. 786

86 Miss. 341

FRANCES E. ANDERSON v. CUMBERLAND TELEPHONE AND TELEGRAPH COMPANY

Supreme Court of Mississippi

July 17, 1905

From the circuit court of Madison county, HON. DAVID M. MILLER Judge.

Mrs Anderson, the appellant, was plaintiff, and the telephone company, the appellee, defendant in the court below. From a judgment in defendant's favor the plaintiff appealed to the supreme court.

The Cumberland Telephone and Telegraph Company maintained an exchange office at Canton, and had a local manager there, one George B. Potter. Edward Anderson was employed by said company as a messenger boy there, and was about fourteen years old. He was requested by Potter to assist a lineman to string some wires, and while so engaged he attached one end of a wire to his wrist, the other end of which was on the ground, the wire being stretched across a public street. While Anderson was engaged at this work, the horse of one Shannon, who was passing along the street, became entangled in the wire and pulled Anderson, the lad, off the pole to the ground. He received injuries from the effects of which he died in a short time thereafter. Mrs. Anderson, the mother of Edward Anderson, brought this suit against said company to recover damages. After plaintiff and defendant both rested the defendant asked and obtained a peremptory instruction.

Reversed and remanded.

F. B Pratt, for appellant.

It is contended by opposing counsel that the doctrine of common employment in its entirety has been adopted by this court, and that the superior servant doctrine has no place here. The granting of the peremptory instruction in the court below was predicated of the above assumption. We submit that there is nothing in the decisions of this state to support such contention. Let us see about this.

It is true that in the Hughes Case, 49 Miss. 280, Murry v. Railroad and Farwell v. Railroad were referred to as authorities, but the court by no means decides that there may not be cases where superior servants would be held to be representatives of the master and vice principals. But, on the contrary, Simrall, J., says in concluding his opinion: "Nor would we undertake to say that there may not be officers, clothed with such special authority, as that the corporation should be held as present with them, so as to be amenable to subordinate servants." The superior servant doctrine was not involved.

The Hughes case simply decides that the corporation is not liable to one servant for the negligence of other servants employed in another department distinct from that in which the plaintiff was engaged. It by no means decides that a superior servant having charge and control of another servant may not be vice principal as to such other servant in case of injury from his negligence.

Simrall, J., in his opinion in Railroad v. Hughes. 49 Miss. 283, refers to Murry v. Railroad and Farwell v. Railroad, and says, "The general doctrine of these cases has been followed in England and in most of the states," and mentions Ohio and Kentucky as exceptions.

This utterance must be understood with reference to the general doctrine of the fellow-servant rule--rule of common employment--and having no reference to the exceptions to that doctrine; for no question of vice principalship--superior servant--was involved in the Hughes case. Judge Simrall cannot be understood as saying that the superior servant rule as claimed to be announced in these cases had been followed in most of the states. If so, he was clearly in error as to the facts, as shown by LaBatte.

LaBatte says, p. 1505, sec. 530: "Undoubtedly, the great weight of authority in this country sustains the doctrine that the master is responsible for the negligence of general managers and other employes intrusted with similar functions, so far, at least, as such negligence may occur in the exercise of what may be called their official duties."

And the summary of these decisions of the several states by LaBatte, pp. 1576 to 1609, show that the superior servant rule is recognized in nearly all the states.

The McMasters Case, 65 Miss. 265, simply decides that the conductor of one train is a fellow-servant of employes on another train over whom he has no control.

Arnold, J., says in the opinion in this case: "The conductor, while he may not be the fellow-servant of other employes in trains subject to his direction and authority, yet would be a fellow-servant of other employes of the company over whom he had no control."

We say there is nothing in the opinion in this case to indicate that the court would not in proper case adopt the superior servant doctrine.

In the Howe Case, 50 Miss. 186, the issue was under the first count of the declaration, which charged that the railroad was not kept in good condition, and hence the accident; the doctrine of the duty of the master to furnish and maintain safe appliances and instrumentalities was invoked and recognized by the court. The main question of fact in that case was, What caused the accident? Says the court in that case: "It cannot be determined with entire satisfaction what was the proximate cause of the accident." The verdict was for the defendant, and the verdict can well be sustained by the evidence, unless the jury was erroneously instructed. "In this case the instructions were directed solely to the point that it was the duty of the company to furnish safe roadbeds and other instrumentalities, and to employ competent servants and a sufficient number."

The question of the liability of the master to one servant for the negligence of another and superior servant who had control of the one was not raised or discussed.

In the Lagrone Case, 67 Miss. 596, it was held that a section boss who had power over and control of his hands was not a vice principal under the peculiar circumstances under which the injury occurred; that the boss and workmen were fellow-servants at the time of the accident, as they were both engaged in manual labor at the time. The rule is laid down by Woods, C. J., in that case, as it had previously been declared by Campbell, J., in the Petty Case, 67 Miss. 255, that "all employes of the master engaged in merely operative service, connected with the company in the business of running trains, are fellow-servants."

We submit that the Ladrone case simply determines that a section boss, while engaged in manual labor with one of his hands--the boss and the hand assisting each other in a particular piece of work--is not a vice principal, but a fellow-servant in his relations to the injured servant.

The decision was but the recognition of the doctrine adopted by those courts which accept the doctrine of vice principalship to its fullest extent--i, e., that if the vice principal engage with a subordinate in the performance of a particular piece of manual labor, they become fellow-servants while so engaged, and although the subordinate is injured by the negligence of his superior in the performance of that work, he cannot recover.

The case at bar and the case of Sykes v. Ga. Pac. R. Co., manuscript opinion, are the only ones that have come to this court involving the doctrine of "superior servant." And the question is still open whether a general or department manager is or is not a vice principal.

LaBatte says, p. 1596, note "Mississippi:"

"Mississippi.--In this state Wilson v. Merry has been expressly approved in Lagrone v. Mobile & Ohio Railroad Co. (1890), 67 Miss. 596; Howd v. Miss. Cent. R. R. Co. (1874), 50 Miss. 178. But of these cases the first merely denied liability for the negligence of a section foreman, and the second absolved the company where the delinquent was a conductor. The broad rule impliedly adopted by the approval thus expressed of the English decision was, therefore, not required for the purpose of either decision; and when Constitution 1890, sec. 193, and Code 1892, § 3559, introduced what was virtually the superior servant doctrine, it was still, perhaps, an open question in Mississippi whether a general or department manager would have been held a vice principal or not."

The Sykes case, referred to in the Ladrone case, goes to the extent only that a servant having charge of a particular piece of work with other servants subject to his orders, is not by virtue of such position a vice principal. It must be borne in mind that in that case the injury was not caused by negligence of Caton, the superior servant.

This court may now consistently hold that the manager of a distinct department of business is a vice principal without conflicting with the opinion in the Sykes case or any other case that has ever come before this court, may consistently adopt the superior servant rule in its entirety.

And is there any reason why this court should not, so far as it can do so without conflicting with prior decisions, give the fellow-servant doctrine as liberal construction as the courts of other states?

We have seen that with two or three exceptions the courts of all the states now hold general and department managers vice principals. Even South Carolina, the pioneer in, and the original hotbed of, the common employment doctrine, has evidently come into line with the other states, so far as the general and department managers are concerned.

Says LaBatte, p. 1605, note "South Carolina:" "From the summary of the effect of the decisions in South Carolina it is difficult to state the present position of the court, but the decisions may be regarded as indicating an adoption of the doctrine of department control."

Massachusetts, and she alone, goes to the extreme limit of the doctrine of common employment. Like Ephraim, she is joined to her idols, and we will let her alone.

This court in Bussy v. Railroad, 79 Miss. 607,...