Edward Hines Lumber Co. v. Dickinson

• Decision Date: 09 December 1929
• Docket Number: 28008
• Citation: 125 So. 93,155 Miss. 674
• Court: Mississippi Supreme Court
• Parties: EDWARD HINES LUMBER CO. v. DICKINSON

125 So. 93

155 Miss. 674

EDWARD HINES LUMBER CO. v. DICKINSON

No. 28008

Supreme Court of Mississippi

December 9, 1929

Division B

1. MASTER AND SERVANT. Whether person in charge of lumber mill's saw filing department, who employed injured helper, was independent contractor or employee, held jury question, under evidence.

Under the facts of this case, it was a case for the jury as to whether the defendant in the case employed the plaintiff through one of its servants or employees, or whether the person employing the plaintiff was an independent contractor and the court was not in error in refusing a peremptory instruction for either party upon the facts contained in the record.

2. MASTER AND SERVANT. Instructions respecting master's non-delegable duty to keep work place safe held erroneous in failing to charge employee could not recover if his failure to perform duty to keep place safe caused injury.

In a personal injury suit, where there is testimony to show that the plaintiff was under duty to keep the place where he worked in safe and good condition, and he was injured and brings suit for such injury against his employer, alleging the place to be unsafe, and that the master was negligent, it is improper to instruct the jury that the master was under duty to furnish a safe place for the plaintiff to work and that such duty was nondelegable, and, if the defendant delegated to another the duty to keep the place in a reasonably safe condition and such servant or agent negligently failed to perform this duty, that such failure was chargeable to the defendant, without informing them that if they believe the plaintiff was under duty to keep the place safe and clean, he could not recover, if his failure so to do was the cause of his injury.

3. MASTER AND SERVANT. Negligence. Charge that servant does not assume risk if master is negligent held erroneous, under evidence that master's negligence was due to servant's own negligence; employee's negligence cannot be attributed to master where employee represents master and is injured by own negligence; one cannot benefit by own negligence.

Under the facts of this record, it was error for the court to charge the jury that a servant does not assume the risk of his employment if the master is negligent, as there was evidence that the master's negligence, if any, was due to the negligence of the plaintiff or servant. The negligence of an employee cannot be attributed to the master where the servant represents the master and is injured by his own negligence and must make the master negligent, if at all, by reason of his own negligence. A person will not be permitted to benefit by his own negligence.

4 TRIAL. Rule for construing instructions together does not cure error in instructions none of which gives sufficient information to supply defects.

Where instructions are erroneous as applied to certain facts in a case, and where none of the instructions give the jury sufficient information to supply the defects in the instructions which are erroneous, the rule of construing all the instructions together and considering them as a whole does not cure such error, and especially is this true where the jury is not instructed that they must take the instructions altogether and consider them as a whole and as being one instruction governing the case.

HON. J. Q. LANGSTON, Judge.

APPEAL from circuit court of Lamar county HON. J. Q. LANGSTON, Judge.

Action by S. C. Dickinson against the Edward Hines Lumber Company. Judgment for defendant, and plaintiff appeals. Reversed, and remanded for new trial.

Judgment reversed and cause remanded.

T. J. Wills, of Hattiesburg, for appellant.

The instructions given for appellee told the jury that the law imposed upon the defendant the duty to furnish the plaintiff a reasonably safe place to do the work required of him.

Also that under the law the plaintiff did not assume the risk of being injured as a result of any negligence on the part of the defendant, etc.

Also that contributory negligence on the part of the servant does not bar recovery on damage inflicted as a proximate result of negligence on the part of the master; and if you believe from the evidence in this case that the defendant negligently furnished and failed to keep the place where plaintiff was required to work, etc., that the plaintiff was entitled to a verdict at the hands of the jury. This was error.

Hutchinson-Moore Lbr. Co. v. Pittman, 122. So. 191.

Tatum was an independent contractor, having the right to select and discharge the employees, such as appellee, and appellant was interested only in the ultimate result and not in the details of the performance of the work. The peremptory instruction requested by appellant should have been given.

Currie & Currie, of Hattiesburg, for appellee.

Tatum was not an independent contractor. Appellant required appellee to be examined and it retained the doctor's report in its office. It took from his wages a portion to cover insurance and doctor's bills. Appellant's superintendent maintained absolute control over the premises and directed the manner of the work both of the man Tatum and that of appellee.

Hutchinson-Moore Lbr. Co. v. Pittman, 122 So. 191; New Orleans, B. R. V. & M. R. Co. v. Norwood, 62 Miss. 565, 52 Am. Rep. 191; Finkbine Lbr. Co. v. Cunningham, 57 So. 916.

The instructions must be considered as one and read together.

Haynes-Walker Lbr. Co. v. Hankins, 141 Miss. 55, 105 So. 858; Lamar Hardwood Co. v. Case, 143 Miss. 277, 107 So. 868; Gibson v. Wineman, 141 Miss, 573, 106 So. 826; Crawford v. Maryland Casualty Co., 115 So. 586; Alabama & C. R. R. Co. v. Fountain, 145 Miss. 515, 111 So. 153.

OPINION

Ethridge, P. J.

S. C. Dickinson sued the Edward Hines Lumber Company for personal injuries. The declaration charged that the plaintiff was employed by the defendant as a saw filer helper, and that the defendant required him to help change the saws and gauge them so as to keep them up to the standard in every respect for the cutting of logs into lumber. It was further alleged that the floor upon which he was required to stand and to walk in pursuance of his duties was permitted to become greasy, slippery, and accumulated with trash, which resulted in his falling to the floor by slipping and being injured by suffering a hernia.

The defendant pleaded the general issue, denying all the facts in the declaration. There was a judgment for the plaintiff from which this appeal is prosecuted.

The first contention of the appellant is that the appellee was not employed by the Edward Hines Lumber Company, but that he was employed by one Tatum, who, it is claimed, was an independent contractor, and who hired the appellee and paid him, and had power to employ and discharge his help. The appellee claimed that he was hired by the Edward Hines Lumber Company and was subject to the control of that company, and that he paid seventy-five cents per month for medical and hospital fees, which amount was taken out of his wages for part of the hospital and medical services furnished by the Edward Hines Lumber Company. He further testified that he was paid weekly by Mr. Tatum. It was in the proof by the company that Mr. Tatum was hired for twenty-eight dollars a day to keep the saws in the proper condition, and that he had helpers to assist him in this work, but that the twenty-eight dollars a day was paid him, and from it he paid such helpers as he employed or needed, and that he was the judge of the help employed.

The general foreman of the mill testified that, when dust accumulated on the floor where the filing work was done, it was the duty of the saw filer to keep the station clean; that each shift should keep the floor clean; and that they did not have a general clean-up man for the saw-filing department.

Mr. Tatum, the person employed by the company to keep the saw-filing department in condition and the saws sharpened, stated that he was under contract to keep the saws filed and to keep the saws up; that the company did not have a clean-up man in the saw-filing department; that it was not the duty of any clean-up man of the company to keep the saw-filing room clean; and that his duty as such contractor and his helpers was to keep that floor clean. He testified that he paid Mr. Dickinson, and that he hired his own help, and the company had nothing to do with paying them; they being paid out of the twenty-eight dollars a day.

The general foreman testified as follows:

"Q. If he didn't keep it clean what was the result, Mr. McKeown? A. I'd probably come through the next morning, and see it and mention it to Tatum and have somebody get busy and clean it up; we have inspectors come in and we have one of our own that inspects all parts of the plants for hazardous places and dirt and they require us to keep it clean whether we want to or not.

"Q. If they didn't what would they do? A. Get a new superintendent or general foreman.

"Q. Is your job to see that it's kept clean? A. Yes, sir.

"Q. If Mr. Dickinson refused to sweep it up at night while he was on the job what would happen to him? A. Get somebody to take his place. . . .

"Q. All of the authority is vested in you? A. My orders go to Mr. Tatum."

Mr. Tatum, the sawmill filing foreman, also testified:

"Q. What would have happened...