Curry & Turner Const. Co., Inc. v. Bryan

• Decision Date: 02 January 1939
• Docket Number: 33436
• Parties: CURRY & TURNER CONST. CO., INC., et al. v. BRYAN
• Court: Mississippi Supreme Court

185 So. 256

184 Miss. 44

CURRY & TURNER CONST. CO., INC., et al. v. BRYAN

No. 33436

Supreme Court of Mississippi, Division B

January 2, 1939

Suggestion Of Error Overruled January 30, 1939.

APPEAL from the circuit court of Prentiss county HON THOS. H JOHNSTON, Judge.

Action by Baremore Bryan against the Curry & Turner Construction Company, Inc., and others for injuries sustained while performing duties as named defendant's employee. Judgment for plaintiff, and defendants appeal. Affirmed.

Affirmed.

J Sidney Finch, of Booneville, and Leftwich & Tubb, of Aberdeen, for appellants.

It was error in the court below to overrule the motion of appellants, at the close of the trial, for a directed verdict.

If the exploded can contained gasoline or a mixture of kerosene and gasoline, appellee is himself responsible for it.

If there was an interchange of gasoline and kerosene in these cans, the mistake was made by the fellow servants of appellee for whose negligence appellants are not responsible.

The master is not liable for injuries resulting from acts of negligence of a fellow servant, a subforeman or employees of the subforeman's crew or gang who actually labors with the crew in cases where the, master himself is in direct control and supervision of the, work, or in cases where the master employs a superior superintendent or foreman and who has designated a subforeman to have charge of a crew or gang of laborers, and the subforeman himself actually labors with his crew. In such cases the subforeman and the members of his crew are fellow servants and they are fellow servants of other employees of the master engaged in the same line of work. The master is not liable for acts of negligence of any of them.

Petroleum Iron Works v. Bailey, 86 So. 644, 124 Miss. 11; Givens v. Southern R. Co., 49 So. 180, 94 Miss. 830 22 L.R.A. (N.S) 971; Bradford Construction Co. v. Heflin, 42 So. 174, 88 Miss. 314, 12 L.R.A. (N.S) 1040, 8 Ann. Cas. 1077; Hercules Powder Co. v. Hammack, 110 So. 676, 145 Miss. 304; Cybur Lbr. Co. v. Erkhart, 79 So. 235, 118 Miss. 401; Barron Motor Co. v. Bass, 150 So. 202, 167 Miss. 786; Harper v. Public Service Corp. of Miss., 154 So. 206, 170 Miss. 39; Buckeye Cotton Oil Co. v. McMorris, 158 So. 799, 172 Miss. 99.

At the time of the alleged accident and injury appellee was not engaged within the scope of his employment, he had gone entirely outside of his line of duty in making the fire. The contractor had provided other servants to perform the duty of making and maintaining fires. Appellants are not responsible for the injury.

Gulfport Traction Co. v. Faulk, 118 Miss. 894, 80 So. 340; Y. & M. V. R. Co. v. Slaughter, 92 Miss. 289, 45 So. 872; Ten Mile Lbr. Co. v. Garner, 117 Miss. 814, 78 So. 776; Van Scoter v. Megginson, 144 Miss. 510, 110 So. 247; Hinton Bros. Lbr. Co. v. Polk, 117 Miss. 300, 78 So. 179.

Appellee in making the fire wholly disregarded his own safety in the use of gasoline or kerosene for that purpose. These products were not supplied for such use, and the slightest care and prudence on the part of appellee would have prevented the accident and injury.

This principle of law is well established by the decisions: If the master provides a safe way to do the work, and the servant adopts an unsafe method in performing the work, the master is not liable.

I. C. R. Co. v. Daniels, 73 Miss. 258; Morehead v. Y. & M. V. R. Co., 84 Miss. 112; Ovett Land & Lbr. Co. v. Adams, 109 Miss. 740, 69 So. 499; Buckeye Cotton Oil Co. v. Saffold, 125 Miss. 407, 87 So. 893; Ten Mile Lbr. Co. v. Garner, 117 Miss. 814, 118 Miss. 105, 78 So. 776; Stokes v. Adams-Newell Lbr. Co., 151 Miss. 711, 118 So. 441; Brown v. Coley, 168 Miss. 778, 152 So. 61; Favre, Admr. v. L. & N. Ry. Co., 180 Miss. 843, 178 So. 327; Woodstock Co. v. Bowles, 158 Miss. 346, 128 So. 98.

Appellant contractor in handling gasoline and kerosene and other petroleum products on the job followed strictly the universal custom in general use throughout the country. These products are of such common use and are so well known that all persons of reasonable intelligence are familiar with their use and qualities. There is nothing complex or uncertain in their use and therefore rules and regulations are not necessary.

39 C. J., sec. 586; Hammontree v. Cobb, 168 Miss. 844; Vehicle Woodstock Co. v. Bowles. 158 Miss. 346, 128 So. 99; Newell Contracting Co. v. Flynt, 172 Miss. 719, 161 So. 298; Seifferman v. Leach, 161 Miss. 853, 138 So. 563; Tatum v. Crabtree, 130 Miss. 462, 94 So. 449; Y. & M. V. R. Co. v. Downs, 109 Miss. 140, 67 So. 962; Poplarville Lbr. Co v. Kirkland, 149 Miss. 116, 115 So. 191; Crossett Lbr. Co. v. Land, 121 Miss. 834, 84 So. 15; Dobbins v. Lookout Co., 133 Miss. 248, 97 So. 546; Eastman Gardiner Hardwood Co. v. Chatham, 168 Miss. 471, 151 So. 556; Eagle Cotton Oil Co. v. Pickett, 175 Miss. 577, 166 So. 764; Anderson Tulley Co. v. Goddin, 174 Miss. 162, 163 So. 536; Wilson & Co. v. Holmes, 180 Miss. 361, 177 So. 24; Shell Petroleum Co. v. Kennedy, 167 Miss. 305, 141 So. 335; Davis v. Price, 133 Miss. 236, 97 So. 557; Magnolia Stores Co. v. Croft, 161 Miss. 756, 138 So. 405; Natchez, C. & M. R. Co. v. Boyd, 141 Miss. 593, 107 So. 1; Miller v. Teche Lines, Inc., 175 Miss. 351, 167 So. 52; Hahn v. Owen, 176 Miss. 296, 168 So. 622.

The first assignment complains what when the jury was being empaneled, the court permitted counsel for appellee to announce to the jury: "That this is a suit for a large amount; a large sum is being sued for, " and to request the jury each of them to know whether or not if the proof showed that the appellee had been damaged in a large amount it would embarrass them to return a verdict for a large sum.

It is manifest that in doing this counsel was in effect tuning up the jury, impressing upon their minds the enormity of the case and to prepare them for a large verdict at the end of it.

Assignment No. 2 deals with the testimony of Dr. Cunningham and others to the effect that plaintiff had been confined in the hospital for approximately a year, and was required to have an attendant at $ 4 a day and board, the board for the attendant being $ 1 a day beside the hospital expenses. And, after the plaintiff left the hospital, an expenditure of this sum would be required daily for his care and maintenance and this for an indefinite period. The declaration contained no allegation as to these sums for medical treatment and hospital bills and nurses and other expenditure, and on this ground appellant objected to this class of testimony.

Chapman v. Powers Construction Co., 150 Miss. 687, 116 So. 609; Greyhound Lines, Inc. v. Silver, 155 Miss. 765, 125 So. 340.

Jas. A. Cunningham, Frank W. Cunningham, and Donald M. Franks, all of Booneville, for appellee.

Appellee, hereinafter called plaintiff, plants his case on that just and unerring principle of law that it is the nondelegable duty of one handling explosives, especially a master, and especially dangerous explosives handled or kept in a way to be disguised or hidden and likely to do harm to others to exercise all reasonable care to safeguard such hidden danger or to fully inform others of the danger who are likely in any way for any cause to come within the danger zone, especially either invitees or employees, and such a situation demands a very high degree of care, that high degree which is in proportion to the danger.

Evans v. Brown, 106 So. 281; Huey-McTighe v. Johnson, 75 So. 600; Hamilton v. Gano, 76. So. 633; Hercules Powder Co. v. Williamson, 110 So. 244; Golden Sawmill Co. v. Jourdan, 127 So. 287; Standard Oil Co. of Ky. v. Evans, 122 So. 735; 25 C. J. 185, secs. 7 and 8; 11 R. C. L. 662, sec. 14, and sec. 16.

A number of the authorities cited in the above division of this brief cover explosive dangers to children whose curiosity to pry into such things and become injured should have been anticipated because of their incapacity to discover the dangers involved, but the same high standard of care is required for the protection of adults under the above authorities where the danger is in any way hidden and known to the master but not known to the employee. There is no difference in the application of this due care to adults where the danger is hidden and where both and/or either the duties of the employee or the practice on the premises are such as to likely bring an adult person within the danger zone of such hidden and disguised explosive as well as any other hidden danger, and is dealt with in the law under hidden dangers.

Seafood Co. v. Alvis, 77 So. 856; Masonite Corp. v. Lockridge, 140 So. 223; Yazoo-Miss. Valley R. Co. v. Smith, 117 So. 339; Barron Motor Co. v. Bass, 150 So. 202; Norton v. Standard Oil Co., 171 So. 691; 18 R. C. L. 567; 39 C. J. 486, sec. 602.

On the question of the defendant's knowledge of the dangerous character of this gasoline and of that cloud of fumes that it constantly gives off so easily ignited and so terrible in its explosive qualities, the defendants are chargeable with knowledge thereof and cannot escape responsibility of knowledge of such properties.

American Sand & Gravel Co. v. Reeves, 151 So. 477; Allen Gravel Co. v. Curtis, 161 So. 670; Standard Oil Co. v. Evans, 122 So. 735; O'Hara v. Nelson, 63 A. 836; Buchholz v. A. B. A. Independent Oil Co., 33 A.L.R. 769; Gust v. Muskegon Oil Co., 33 A.L.R. 772.

The jury were altogether justified in their province of passing on the weight of the evidence that their foreman McRae not only knew it but ordered the gas brought on the job and saw and knew that it was in the kerosene can and after this full observation and knowledge he ordered it placed in the toolbox. It is our position that this dangerous explosive to be used in the master's business took its...