Easterling Lumber Co. v. Pierce

• Decision Date: 02 March 1914
• Docket Number: 16274
• Citation: 64 So. 461,106 Miss. 672
• Court: Mississippi Supreme Court
• Parties: EASTERLING LUMBER CO. v. S.W. PIERCE

64 So. 461

106 Miss. 672

EASTERLING LUMBER CO. v. S.W. PIERCE

No. 16274

Supreme Court of Mississippi

March 2, 1914

APPEAL from the circuit court of Covington county, HON. W. H HUGHES, Judge.

Suit by S.W. Pierce against the Easterling Lumber Company. From a judgment for plaintiff, defendant appeals.

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

Affirmed.

T Brady, Jr., and Mayes & Mayes, attorneys for appellant.

Hirsch Dent & Landau and E. L. Dent, attorneys for appellee.

Argued orally by T. Brady, Jr., and Edward Mayes, for appellant and R. L. Dent, for appellee.

OPINION

REED, J.

Appellee obtained judgment against appellant in the sum of seventeen thousand five hundred dollars for damages from personal injury. At the time he was injured, he was employed by the appellant company as an engineer in charge of an engine which was engaged in pulling a train carrying employees of appellant company from its mill at Ora to its camp in the woods over its logging railway, a distance of about fifteen miles. The injury resulted from a head-on collision between the engine which was in charge of appellee and an engine known as the "Shay," pulling cars from the camp. Appellee charged that the collision was from negligence of several employees of appellant company. The negligence included the placing of an incompetent engineer in charge of the Shay and the failure to give proper orders as to the proper running of the trains, which resulted in their unexpected meeting. Appellee's injury was serious, and resulted in the loss of a leg.

Appellant assigns as error the refusal by the court to give instructions to the effect that if the jury believed from the evidence in the case that the injury to appellee was caused by the negligence of a fellow servant, then appellee could not recover. Counsel for appellant in their brief make this assignment of error in the following words: "The court erred in denying the appellant the defense that the injury of appellee was caused by the negligence of a fellow servant."

This brings to our consideration the law of Mississippi abolishing the fellow-servant rule among certain employees.

It is asserted by appellant that chapter 194 of the acts of 1908 is unconstitutional for two reasons: "(1) It violates section 193 of the Mississippi Constitution; (2) it violates the equality clause of the fourteenth amendment to the Constitution of the United States."

The title to chapter 194 of the Acts of 1908 shows it to be an act to amend section 4056 of the Code of 1906, so as to abolish the fellow-servant rule in actions for injuries to employees of railroads and other corporations using engines, etc., propelled by the dangerous agencies of steam, electricity, etc.

We quote the first section of the chapter:

"Every employee of a railroad corporation, and all other corporations and individuals, using engines, locomotives or cars of any kind or description whatsoever, propelled by the dangerous agencies of steam, electricity, gas, gasoline or lever power, and running on tracks, shall have the same rights and remedies for an injury suffered by him from the act or omission of such railroad corporation or others, or their employees, as are allowed by law to other persons not employed.

Knowledge by any employee injured of the defective or unsafe character or condition of any machinery, ways or appliances, or of the improper loading of cars, shall not be a defense to an action for injury caused thereby, except as to conductors or engineers in charge of dangerous or unsafe cars or engines voluntarily operated by them. When death ensues from an injury to an employee, an action may be brought in the name of the widow of such employee for the death of the husband, or by the husband for the death of his wife, or by a parent for the death of a child, or in the name of a child for the death of an only parent, for such damage as may be suffered by them respectively by reason of such death, the damages to be for the use of such widow, husband, parent or child, except that in case the widow should have children, the damages shall be distributed as personal property of the husband. The legal or personal representatives of the person injured shall have the same rights and remedies as are allowed by law to such representatives of other persons. In every such action the jury may give such damages as shall be fair and just, with reference to the injury resulting from such death to the person suing. Any contract or agreement expressed or implied, made by an employee to waive the benefit of this section shall be null and void, and this section shall not deprive an employee of a person, natural or artificial, or the legal or personal representatives of such person, of any right or remedy they now have at law."

Section 193 of the Mississippi Constitution reads: "Every employee of any railroad corporation shall have the same right and remedies for any injury suffered by him from the act or omission of said corporation or its employees, as are allowed by law to other persons not employees where the injury results from the negligence of a superior agent or officer, or of a person having the right to control, or direct the services of the party injured, and also when the injury results from the negligence of a fellow servant engaged in another department of labor from that of the party injured, or of a fellow servant on another train of cars, or one engaged about a different piece of work. Knowledge by any employee injured, of the defective or unsafe character or condition of any machinery, ways, or appliances, shall be no defense to an action for injury caused thereby, except as to conductors or engineers in charge of dangerous or unsafe cars, or engines voluntarily operated by them. Where death ensues from any injury to employees, the legal or personal representatives of the person injured shall have the same right and remedies as are allowed by law to such representatives of other persons Any contract or agreement, express or implied, made by any employee to waive the benefit of this section shall be null and void; and this section shall not be construed to deprive any employee of a corporation or his legal or personal representative of any right or remedy that he now has by the law of the land. The legislature may extend the remedies herein provided for to any other class of employees."

Section 193 of the Constitution of 1890 has been upheld as not violative of the Constitution of the United States.

It has been held that section 193 applies only to railroad corporations engaged in the business of common carrier, or those denominated "commercial railroad companies," and that it does not apply to railroads owned and operated as an adjunct to the main business of their owners, such as construction company roads, roads used in connection with mines and lumber corporations and logging roads. Construction Co. v. Heflin, 88 Miss. 314, 42 So. 174. The railroad in the case at bar is a logging road.

It will be noticed that the final sentence of section 193 provides for the extension of the remedies therein in the following language: "The legislature may extend the remedies herein provided for to any other class of employees." It is not argued by counsel for appellant that the legislature could not extend the remedies to employees of logging roads. It is conceded that this may be done. It is claimed that the words were at once a grant and a limitation; that by necessary inference the limitation amounted to a denial to the legislature of a power to grant any remedies curtailing the fellow-servant rule other than those provided in the section. It is true that by the statute (chapter 194 of the Acts of 1908) there is a broader and fuller statement of the abrogation of the fellow-servant rule than that contained in the section of the Constitution. The makers of the Constitution, by section 193, provided for the abrogation of the fellow-servant doctrine to a certain extent.

It was said by Chief Justice WHITFIELD in the case of Ballard v. Oil Co., 81 Miss. 507, 34 So. 533, 62 L. R. A. 407, 95 Am. St. Rep. 476, that it was the purpose of the framers of the Constitution to authorize legislation to abolish the fellow-servant rule in the case of railroad corporations whose business was known to be inherently dangerous in so far as such litigation would be in accord with the principles announced by the decisions of the United States supreme court. He further stated in his opinion in that case that "the purpose of the last clause of section 193 was to extend the remedies therein provided for to any other class of employees of corporations or persons whose business was, like that of railroads, inherently dangerous, or whose business was so different from the business of other corporations or persons as to furnish the basis for a classification of the business of such corporations, or persons, under which their employees might be permitted to sue without reference to the fellow-servant rule, while the employees of corporations, or persons not having that sort of business, could not so sue; in other words, to permit a classification based on 'some difference bearing a reasonable and just relation to the act in respect to which the classification is proposed.' . . . It is not therefore to be supposed that the last clause of the section meant any more than that there might be other classifications of the employees of corporations or individual persons based also on some distinguishing difference in the nature of the business."

After making the provision referred to and treating the subject in hand, the Constitution framers added at the end, and from its appearance, as an afterthought, the final sentence: "The legislatu...