Benjamin v. Davidson-Gulfport Fertilizer Co

• Decision Date: 19 February 1934
• Docket Number: 31071
• Court: Mississippi Supreme Court
• Parties: BENJAMIN v. DAVIDSON-GULFPORT FERTILIZER CO

152 So. 839

169 Miss. 162

BENJAMIN v. DAVIDSON-GULFPORT FERTILIZER CO

No. 31071

Supreme Court of Mississippi

February 19, 1934

Division B

Suggestion Of Error Overruled March 19, 1934.

APPEAL from circuit court of Harrison county, HON. W. A. WHITE Judge.

Action by Georgia Benjamin, on behalf of herself and her minor children, against the Davidson-Gulfport Fertilizer Company for the death of Herbert Benjamin, employee. Judgment for defendant, and plaintiff appeals. Reversed and remanded.

Reversed and remanded.

Graham & Graham and Bidwell Adam, all of Gulfport, for appellant.

With due respect to the trial judge we are unable to concede four negro men employed to unload a car of dust for the lump sum of two dollars and sixty cents could be held to be independent contractors and this necessary results from the holding of the court below.

Hinton & Walker v. Pearson, 142 Miss. 40, 107 So. 275; Harper v. Wilson, 153 Miss. 199, 140 So. 693; McDonald v. Hall-McNeely Lbr. Co., 147 So. 315.

It is generally held that one who does what is known as "piecework," that is so much pay for so much work, is an employee and not an independent contractor.

38 A. L. R. 839.

Assuming the relation of master and servant to have existed it seems that the question of whether plaintiff's husband died as a result of inhaling the dust is not debatable; at any rate the testimony certainly shows sufficient facts to make this question one for the jury to determine.

Miss. Central Railroad Co. v. Lott, 118 Miss. 816, 80 So. 277.

The question of negligence, or what constitutes negligence, is in most cases one for the jury; indeed it is the rarest case that justifies a court in taking the case from the jury.

Gulf & Ship Island Railroad Co. v. Cole, 58 So. 214.

Unless the evidence of negligence is so plain and convincing that all reasonable men would draw the same inference from the facts adduced, it is a question of fact for the jury.

Railroad Co. v. Turner, 71 Miss. 402, 14 So. 450; Southern Railroad Co. v. Floyd, 55 So. 228; Abernathy v. Railroad Co., 53 So. 504; Stevens v. Railroad Co., 32 So. 312.

There is no difference in principle in damages resulting from inhaling irritating dust and damages caused from breathing impure air in a coal mine or breathing impure air caused by noxious gas; many of the states have enacted laws to compel operators of coal mines to keep the air pure so that those engaged in mining would not be injured by breathing impure air, and it has been held that a violation of these statutes causes the master to be liable to its employees for any injury caused by the breathing of such impure air.

Log Mountain Coal Co. v. Crunkleton, 169 S.W. 692; Frey v. Kerens-Donnewald Coal Co., 152 Ill.App. 548; Thayer v. Kitchen, 145 Ky. 554; King v. DeCamp Coal Mine Co., 161 Ill.App. 203.

Leathers & Greaves, of Gulfport, for appellee.

An independent contractor is one who contracts to do certain work according to his own methods and without being subject to the control of his employer except as to the result of his work.

Hinton v. Pearson, 142 Miss. 50, 107 So. 275; McDonald v. Hall-Neely Lbr. Co., 147 So. 315; Harper v. Wilson et al., 163 Miss. 199, 140 So. 693.

The appellee exercised no control whatever over the deceased and his fellow-workers.

Crescent Baking Co. v. Denton, 147 Miss. 639, 112 So. 21; Kisner v. Jackson, 159 Miss. 424, 132 So. 90; Louis Werner Sawmill Co. v. Northcutt, 161 Miss. 441, 134 So. 156; Hutchinson Moore Lbr. Co. v. Pittman, 154 Miss. 1, 122 So. 191; Callahan Construction Co. v. Rayburn, 110 Miss. 107, 69 So. 669.

On the question of causal connection between the inhaling of the dust and the pneumonia, which the doctor positively testified was the proximate cause of Benjamin's death, we submit to the court that there is not a word of proof of probative value which would justify the submission of the case to the jury on this issue.

F. W. Woolworth Co. v. Volking, 100. So. 3.

In the absence of allegation and proof that the dust was poisonous or especially injurious because it was poisonous, and proof to support the allegation, there was no duty on the master to provide against the inhalation of the dust and its failure to do so was not negligence; but the inhaling of dust under these circumstances, without negligence on the part of the master, was one of the necessary incidents of the work, or in other words, a risk which the deceased assumed in doing the work and for the consequences of which the master is not liable.

Yazoo City Transportation Co. v. Smith, 28 So. 807; Austin et al. v. Mobile & O. R. Co., 99 So. 3; Vehicle Woodstock Co. v. Bowles, 128 So. 98; Wilbe Lbr. Co. v. Calhoun, 140 So. 680; Seifferman v. Leach, 138 So. 563; Morgan Hill Paying Co. v. Morris, 133 So. 229.

There was no evidence that inhaling the dust was the proximate cause of the death, consequently no issue to submit to the jury on this phase of the case.

M. & O. R. Co. v. Clay, 125 So. 819; American Sand & Gravel Co. v. Reeves, 151 So. 477.

OPINION

Anderson, J.

Appellant brought this action against appellee on behalf of herself and her seven minor children for damages for the death of her husband, Herbert Benjamin, alleged to have been caused by appellee's negligence while he was engaged in appellee's service. At the conclusion of appellant's evidence, the court, on motion, directed a verdict in favor of appellee; judgment was accordingly entered; from which judgment appellant prosecutes this appeal.

The declaration is in two counts. Both counts charge that the deceased, with others, was employed by appellee to unload a car of phosphate rock dust and dump it into appellee's mixing pit; that the unloading of the car caused a thick cloud of the dust, which was necessarily inhaled by Herbert Benjamin while doing the work to the extent that it caused him to have bronchial pneumonia, resulting in his death. One count based recovery on the failure of appellee to furnish the deceased with a respirator to protect him against breathing the dust. The other count was based on the failure of appellee to provide the deceased with a reasonably safe place in which to work, alleging that the car should have been made reasonably safe by proper ventilation.

There was little, if any, substantial conflict in the material evidence. The deceased and three others were employed by Mr Paggett, appellee's foreman, to unload a box car filled with phosphate rock dust and to convey the dust to appellee's mixing pit some fifty feet away. Appellee's foreman furnished them with shovels and a push cart, all of which belonged to appellee, and directed them to unload the car and place its contents into the mixing pit. He agreed to pay them two dollars and sixty cents jointly for the work. The deceased had never worked for appellee before. He worked in the car, shoveling the dust into the push cart, from nine o'clock in the morning until two-thirty in the afternoon, when his...