Benton v. Finkbine Lumber Co.

• Decision Date: 24 June 1918
• Docket Number: 20335
• Court: Mississippi Supreme Court
• Parties: BENTON v. FINKBINE LUMBER COMPANY ET AL

79 So. 346

118 Miss. 558

BENTON v. FINKBINE LUMBER COMPANY ET AL

No. 20335

Supreme Court of Mississippi

June 24, 1918

Division A

APPEAL from the circuit court of Simpson County, HON. W. H. HUGHES Judge.

Suit by L. A. Benton against the Finkbine Lumber Company and others for wrongful death. From a judgment for defendants on demurrer to the declaration, plaintiff appeals.

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

Reversed and remanded.

Hirsh Dent & Landau, for appellant.

The defendants in this case are sued as joint tortfeasors. This court held in numerous cases that this can be done. Bright v. Finkbine Lumber Company, 77 So. 316; Bailey v. Power Company, 86 Miss. 634; Harris v. I C. R. R., 85 Miss. 15.

Federal court held declaration stated. A joint cause of action. This case was thoroughly briefed and argued in the federal court, and the federal judge, in remanding the cause to the state court for the trial, referred, amoung others, to the following cases: Chesapeake & Ohio Railroad v. Dixon, 179 U.S. 131. This case holds: Buchanan v. Ritter Lumber Company et al, 210 F. 144; Galeotti et al v. Diamond Match Co., et al, 178 F. 127.

Strange as it may seem, the trial judge held, not that the declaration failed to state a point cause of action, but that no cause of action, whatever was set forth, sustained the demurrer and finally dismissed the cause.

This court has held in every case we can find relating to the subject, that if a declaration in any court, whether one or more, states a good cause of action, a general demurrer should be overruled. Sevey v. Dyers, 51 Miss. 501; Hines v. Patts, 56 Miss. 346; Alexander v. Western Union Telegraph Co., 66 Miss. 161; Cummings v. Dougherty, 73 Miss. 405; Washington v. Soria, 73 Miss. 665; Lynn v. Railroad, 63 Miss. 157; State Board of Education v. Railroad, 71 Miss. 500; Jacobs v. Postal Telegraph Co., 76 Miss. 278; Thompson v. Winona, 96 Miss. 591.

Facts alleged in declaration admitted. A general demurrer admits all the facts alleged in the pleading demurred to. Delano v. Holly-Mathews Mfg. Co., 47 So. 475; Knox v. Exporters Cotton Oil Company, 56 So. 185; Globe & Rutgers Fire Insurance Co. v. Fireman's Insurance Co., 97 Miss. 148; Carrero v. Wright, 93 Miss. 306; Delano v. Mfg. Co., 47 So. 475.

Declaration sufficient. Duty of defendants to promulgate and enforce rules relative to hazardous business. We desire to direct this court's attention to the well considered case of Potlatch Lumber Company v. Anderson, from the circuit court of appeals, Ninth circuit, October, 1912, 199 F. 742; Gillett v. Lumber Company, 12 Neg. & Compensation Cases, 812; Second Edition, Vol. 4, Labatt's Master & Servant, 4308, 4309, 4310.

Safe place to work must be maintained by having and enforcing reasonable rules relative thereto. It is elementary law that it is the nondelegable, duty of the master to furnish the servant a safe place to work. Edwards v. Lumber Company, 113 Miss. 378; Finkbine Lumber Company, v. Cunningham, 47 So. 916; Lucey v. Stack-Gibbs Lumber Company, 131 P. 897, 46 L. R. A (N. S.) 86.

Under these authorities and indeed under all the authorities on which this action is based, we submit, that the declaration herein states a good cause of action and that it was error for the court below to sustain the demurrer.

Counsel in the court below referred to the case of I. C. R. R. Co., v. Abrams, 84 Miss. 456. With all due deference and respect to learned counsel for appellees, this case has no application to the pleadings of the case at bar. No contract is alleged between the appellant and appellees. The action is based entirely in tort.

Section 729, Code 1906, is as follows: "The declaration shall contain a statement of the facts constituting the cause of action, in ordinary and concise language, without repetition; and if it contain sufficient matter of substance for the court to proceed upon the merits of the cause, it shall be sufficient; and it shall not be an objection to maintaining any action that the form thereof should have been different."

We submit in all candor and seriousness that the declaration in this case under the foregoing section or any other rule of pleading, states a substantial cause of action. Indeed, every count states a good cause of action under any rule of pleading, and therefore, it was error for the court below to sustain the demurrer and dismiss said cause.

The case, therefore, should be reversed and remanded.

Wells, May & Sanders, for appellee.

No new question is presented for determination by this appeal. In fact, every contention here presented was earnestly, ably and exhaustively argued by counsel for appellant. McDonald & Marshall and Mize & Mize in the case of Leonard Cuefas, by next friend, v. Ingram Day Lumber Company, No. 16,627, which the court disposed of adversely to this appellant's contentions without a written opinion.

The safe-place doctrine has been so clearly defined and so well settled by the many decisions of this honorable court, and the court is so perfectly familiar with its own declarations, we deem it unnecessary to refer specifically to any of these innumerable cases. However, the rule announced in varying forms in at least a dozen cases, decided by this honorable court may be epitomized as follows:

The master owes his servants the non-delegable duty of exercising reasonable care to provide and maintain for his servant a reasonably safe place in which to work. Mr. Labatt in his work on Master and Servant, volume 1, pp. 7, 14, sections 6, 11, 26 Cyc. 1113; Byrd v. Thompson, 91 S.E. 100; Iams v. Hazel-Atlas Glass Company, 251 Penn. 439; Sloss-Sheffield Steel & Iron Company v. Terry, 67 So. 678; Shields v. Bergendahl-Bass Engineering & Const. Co., 187; Ill.App. 5; Eagle Coal Company v. Patrick's Admr., 170 S.W. 948, 161 Ky. 413; Cooney v. Laclede Gaslight Company, 171 S.W. 572, 186 Mo.App. 156; Horton & Horton v. Hartley, 170 S.W. 1046; Losasse v. Jones Bros. Co., 93 Am. 266; Cowart v. Southern Marble Company, 87 S.E. 282, 144 Ga. 254; Upchurch v. Culpepper, 87 S.E. 834; Brooks v. Central Coal & Coke Company, 152 S.W. 616, 96 Kan. 530; San Antonio Brewing Association v. Sievert, 182 S.W. 389; Kreigh v. Westinghouse, 214 U.S. 255, 256, 29 S.Ct. 621, 53 L.Ed. 984; Baltimore & Potomac R. R. Co. v. Mackey, 157 U.S. 15, S.Ct. 491, 39 L.Ed. 624; Union Pacific R. R. Co. v. O'Brien, 161 U.S. 451, 16 S.Ct. 618, 40 L.Ed. 766; Choctaw, Oklahoma, etc., R. R. Co. v. McDade, 191 U.S. 62, 24 S.Ct. 24, 48 L.Ed. 95; Choctaw Oklahoma, etc., R. R. Co. v. McDade, 191 U.S. 64, 68, 24 S.Ct. 24, 48 L.Ed. 96; Armour v. Hohn, 111 U.S. 313, 4 S.Ct. 251, 51 N.E. 1021; Ocean Steamship Company v. Cheeney, 86 Ga. 278, 284, 12 S.E. 351.

It seems useless to multiply authorities touching a question which has been definitely decided by the supreme court. The case of Standard Oil Co. v. Brown, 218 U.S. 78, 30 S.Ct. 669, L.Ed. 939, relied upon by the appellee, is thought not to be in point. Foss v. Vaker, 62 N.H. 247, 251; Northern, etc., R. R. Co. v. Peterson, 162 U.S. 346, 353, 16 S.Ct. 843; Fifield v. Northern R. R. Co., 42 N.H. 225, 238; Harms v. Sullivan, 1 Ill.App. (1 Bradw.) 251; Hehoe v. Allen, 92 Mich. 464, 52, N.W. 740, 31 Am. St. Rep. 608; Hefferen v. Northern Pac. R. Co., 45 Minn. 471, 48 N.W. 1, 526; Ling v. St. Paul, M. & M. Ry. Co., 50 Minn. 160, 52, N.W. 378; Kenny v. Cunard S. S. Co., 55 N.Y.S. 23 Jones & S. 558; Prescott v. Ball Engine Co., 176 Pa. 459, 35 A. 224, 53 Am. St. Rep. 68; Keith v. Walker Iron & Coal Co., 81 Ga. 49, 12 Am. St. Rep. 296.

Where a master provides a safe place for work, it is the duty of the servant, by attention to details or arrangement and execution, to guard against in security; and if a servant is injured by neglect of such details, no matter by whom, the negligence is that of a fellow-servant. Georgegan v. Atlas, S. S. Co., 3 Miss. 224, 22 N.Y.S. 749; Ewald v. Chicago & N.W. Ry. Co. 70 Wis. 36, 12 N.W. 591, 5 Am. St. Rep. 178; The Louisiana, 74 F. 748, 41 U.S. App. 324; Harty v. Cromwell S. S. Co., The Victoria, 13 F. 43, followed; Baron v. Detroit & C. Steam Nav. Co., 91 Mich. 585, 52 N.W. 22; Filbert v. Delaware & H. Canal Co., 121 N.Y. 207, 23 N.E. 1104, reversing (1888) 56 N.Y.S. Ct. (24 Jones & S.) 170, 2 N.Y.S. 623; McCoy v. Empire Warehouse Co., City Ct. Brook, 10 N.Y.S. 99; Pawling v. Hoskins, 132, Pa. 817, 25 Wkly. Notes Cas. 443; Jacques v. Miami Ice & Cold Storage Co., 75 So. 788.

We believe the authorities cited above, with thousands of others which could be cited, thoroughly demonstrate the unsoundness of the contention that the safe-place doctrine applies to the facts stated in the plaintiff's declaration. We will now give the court the benefit of the cases that specifically hold that liability cannot be predicated of the facts depended upon in this case. Anderson v. Columbia Improvement Company, 2 L. R. A. (N. S.) 840. See Thomp. Neg., sections 4060-4063, 4068; 1 Labatt, Mast. Ser., sections 237-239; 1 Shearm. & Redf. Leg., sections 180, 185.

The only case at all similar to Anderson v. Columbia Improvement Company, which a careful search has discovered in Melton v. E. E. Jackson Lumber Company Ala., 580, 31 So. 848. In this case it was held that a servant who is a deaf mute cannot maintain an action against his master for personal injuries inflicted by the falling of a tree which other servants cut while clearing a right of way for a railroad which fell upon him while he was shoveling dirt on the side of the right of way; the dangers incident to the felling of trees being perfectly obvious, and such work having been carried on for several days where he was employed. Melton v. Jackson Lumber Company 31 So. p. 848; Hagins v. Southern Bell Telephone Co., 20 Am. & Eng. Ann....