Fromme v. Borchman
| Decision Date | 19 February 1940 |
| Docket Number | 34057 |
| Citation | 193 So. 811,188 Miss. 535 |
| Court | Mississippi Supreme Court |
| Parties | FROMME v. BORCHMAN |
APPEAL from the circuit court of Harrison county HON. L. C. CORBAN Judge.
Action by Miss Matilda C. Borchman against Mrs. Elizabeth H. Fromme employer, to recover for injuries sustained by plaintiff while working as a domestic servant. Judgment for plaintiff and defendant appeals. Reversed and rendered.
Reversed, and judgment here for appellant.
Carl Marshall, of Gulfport, for appellant.
The chief point raised by the appellants on this appeal is that when an employee is directed by an employer to perform a task of simple, everyday character falling within the purview of the employment; there being no coercion adopted, and the method of performing the work being left entirely to the judgment of the employee, in the absence of the employer, and the employee is injured through faulty exercise of his or her own uninfluenced judgment in the selection of the means, or by inevitable accident, the employer is not amenable to respond in damages for the injury.
39 C J., sec. 597; Superior Oil Co. et al. v. Richmond et al., 172 Miss. 407, 159 So. 850; Goodyear Yellow Pine Co. v. Clark, 163 Miss. 661, 142 So. 443; Brown v. Coley, 168 Miss. 778, 152 So. 61; Eastman-Gardiner Hardwood Co. v. Chatham, 168 Miss. 471, 151 So. 556; Martin v. Beck, 177 Miss. 303, 171 So. 14.
The second point raised by the appellants is that when a plaintiff in an action at law pitches his or her action upon a precise and definite theory, in the absence of amendment, he or she is bound by that theory and cannot recover upon another by departure therefrom in his or her proof.
None of the pivotal allegations contained in the declaration as a statement of the gist of the appellee's action being sustained by the proof, she was permitted to recover on a complete departure from her asserted theory of action.
Ozen v. Sperier, 150 Miss. 458, 117 So. 117; Richards v. City Lbr. Co., 101 Miss. 678, 57 So. 977.
David Cottrell, Jr., of Gulfport, for appellee.
In support of his argument, the learned counsellor for appellant relies principally on Superior Oil Company v. Richmond, 172 Miss. 407. There is no question but that Joe Richmond, as an employee of Standard Brands, Inc., assisting in the fighting of the fire, had no specific instructions or directions and, in fact, he was not a professional fire fighter. He acted on his own judgment and agreed to go fight a fire in which he was hurt, but the broad announcement of that case could hardly be applicable to the case at hand, which involved so definite an instruction and command from the employer for activity to take place within the confines of a single room where the employer specifically said "go hang this curtain, " and where, on entering the room, there was but one curtain to be hung, and the employer had provided and placed the dangerous ladder for the performance of the operation requested and appellee was injured in the performance of the specific act requested by the employer.
J. J. Newman Lbr. Co. v. Cameron, 179 Miss. 217.
An employee need not subject himself to discipline in order to do a particular act with an unsafe tool, for the statute abolishes the assumption of risk when the master is negligent.
Aponaug Mfg. Co. v. Carroll, 184 So. 83; Laurel Mills v. Ward, 99 So. 11, 134 Miss. 447.
Appellee contends that the record shows ample testimony that her employer negligently ordered her to hang the curtain aforesaid, and where master is negligent and that negligence contributes directly and proximately to the servant's injury, the servant does not assume the risk resulting from such negligence of the master.
Graham v. Brummett (Miss.), 191 So. 721.
The declaration alleges, and the testimony supports the contention, that appellee, in this instance, was not provided a reasonably safe place in which to work.
Davidson v. Riley (Miss.), 17 F.2d 345; Reynolds-West Lbr. Co. v. Taylor (Miss.), 23 F.2d 36.
A verdict of the jury is conclusive as to the questions of fact...
To continue reading
Request your trial