Goodyear Yellow Pine Co. v. Mitchell

• Decision Date: 02 October 1933
• Docket Number: 30693
• Citation: 168 Miss. 152,149 So. 792
• Court: Mississippi Supreme Court
• Parties: GOODYEAR YELLOW PINE CO. v. MITCHELL

149 So. 792

168 Miss. 152

GOODYEAR YELLOW PINE CO. v. MITCHELL

No. 30693

Supreme Court of Mississippi

October 2, 1933

Division B

Suggestion Of Error Overruled November 27, 1933.

APPEAL from circuit court of Pearl River county HON. J. Q. LANGSTON Judge.

Action by Harvey Mitchell against the Goodyear Yellow Pine Company. Judgment for plaintiff, and defendant appeals. Affirmed.

Affirmed. Overruled.

Parker & Shivers, of Poplarville, and Stevens & Heidelberg, of Hattiesburg, for appellant.

The master is not liable for injury caused by overexertion or overstrain.

Our court has heretofore held that the master is not liable to an employee for overexerting or overstraining himself, or misjudging his own lifting capacity.

Batson-Hatten Lbr. Co. v. Thames, 147 Miss. 794, 114 So. 25.

It is the general rule that a servant is the best judge of his own physical strength and in the absence of coercion compelling him to overtax that strength, it is his duty not to overtax it.

Williams v. Kentucky River Power Co., 179 Ky. 577, 200 S.W. 946, 10 A. L. R. 1396; Hunter v. Busy Bee Candy Co., 307 Mo. 656, 261 S.W. 800.

In this state, just as at common law, the servant still assumes all of the usual and ordinary dangers and hazards attendant upon and incident to his employment.

Vehicle Woodstock Co. v. Bowles, 158 Miss. 346, 128 So. 99.

When the courts refer to the danger of overexertion or overstraining being one of the risks assumed by the employee, they are referring to one of the usual and ordinary risks of the employment and not to one of the dangers caused by the negligence of the master.

Williams v. Kentucky River Power Co., 10 A. L. R. 1396; Ehrenberger v. Chicago, Rock Island & Pacific. Ry. Co., 182 Iowa 1339, 166 N.W. 735, 10 A. L. R. 1388; Patrum v. St. L. & S. F. R. Co., 168 S.W. 622; Williams v. Pryor, 272 Mo. 613, 200 S.W. 53; Tull v. Ry. Co., 216 S.W. 572; Worlds v. Georgia R. Co., 25 S.E. 646; Haviland v. Kansas City P. & G. R. Co., 172 Mo. 106, 72 S.W. 515; Yazoo City Transportation Co. v. Smith, 78 Miss. 140.

There has been no case by our court upholding liability of the master on account of the servant's overexerting or overstraining himself.

We are not unfamiliar with the rule that where the work is of such nature as to require men to do the work, then the men engaged in the work are classed in the same category as appliances, and the master owes the duty to furnish a sufficient number of men to do the work. However, this rule does not create liability where, in the absence of a sufficient number of men to do the work, the employee overexerts or overstrains himself in an effort to do it alone, or with insufficient help.

Hunter v. Busy Bee Candy Co., 307 Mo. 656, 261 S.W. 800; Haviland v. Kansas City P. & G. R. Co., 172 Mo. 106, 72 S.W. 515; Thorpe v. Railroad, 89 Mo. 650, 2 S.W. 3, 58 Am. Rep. 120; Fogus v. Railroad, 50 Mo.App. 250; Petrilli v. Swift & Co., 260 S.W. 516; Bowman v. Kansas City Elec. Light Co., 213 S.W. 161; Tull v. Kansas City, etc., R. Co., 216 S.W. 572; Roberts v. Indianapolis St. Ry. Co., 64 N.E. 217; 10 A. L. R. 1399; Stenvog v. Minnesota. Transfer R. Co., 108 Minn. 199, 25 L. R. A. (N. S.) 362, 121 N.W. 903, 17 Ann. Cas. 240.

A mere threat to discharge even when made by one having the power to discharge has been held by our court not to amount to duress.

Gulf & S. I. R. Co. v. Sullivan, 119 So. 501.

The defendant is not responsible for injuries caused by plaintiff's own abnormal condition.

Hathorn & Williams, of Poplarville, and J. E. Stockstill, of Picayune, for appellee.

Under the evidence appellee was entitled to have this case submitted to the jury on the theory that appellant was negligent in failing to furnish and maintain sufficient help with which to carry, lift and stack said bundle.

39 C. J., p. 523, para. 627; 18 R. C. L., p. 601, para. 101; Cincinnati R. R. Co. v. Tucker (Ky.), 181 S.W. 940; Tull v. Kansas City Southern Railroad Co. (Mo.), 216 S.W. 572; Natural Gas Engineering Corp. v. Bazor (Miss.), 137 So. 788; Denkmann Lbr. Co. v. Jefferson (Miss.), 148 So. 237; Pigford v. Railroad Co., 160 N.E. 93, 75 S.E. 860, 44 L. R. A. (N. S.) 865; Di Bari v. Bishop Co., 199 Mass. 254, 85 N.E. 89, 17 L. H. A. (N. S.) 773; Rosin v. Lbr. Co., 63 Wash. 430, 115 P. 833, 40 L. R. A. (N. S.) 913; Alabama Railroad Co. v. Vail, 142 Ala. 134, 38 So. 124, 110 A. S. R. 23.

It is the duty of the master not only to furnish but to maintain a sufficient number of men to do the work assigned.

39 C. J., p. 525, par. 629; Mason v. Edison Mach. Works, 28 F. 228; Brown v. Rome Mach., etc., Co., 5 Ga.App. 142, 62 S.E. 720; Dougherty v. Minneapolis Steel, etc., Co., 110 Minn. 497, 126 N.W. 136, 19 Ann. Cas. 1043; Stewart v. Stone, etc., Engineering Corp., 44 Mont. 160, 119 P. 568; Wallace v. Tremont, etc. , R. Co., 140 La. 873, 74 So. 179, L. R. A. 1917D, 959.

Where the, work is of such nature as to require men to do the work then the men engaged in the work are classed in the same category as appliances, and the master owes the duty to furnish a sufficient number of men to do the work.

Gas Corp. v. Bazor, 137 So. 788; Jefferson v. Denkmann Lbr. Co., 148 So. 237.

Where a master employs servants to act in concert in the performance of their duties, it is the nondelegable duty of the master to furnish a sufficient number of servants to perform the duties required of them; if he fails so to do, and such failure is the proximate cause of the injury of one of the servants, the master is liable for such injury.

Gas Corporation v. Bazor, 137 So. 788.

The court will observe that the only difference in the case at bar and the Bazor and Jefferson cases, is that in those two cases the master sent Bazor and Jefferson to do the work assigned without sufficient help, while in the case at bar appellant furnished sufficient help in the beginning but later found appellee's helper absent and required appellee to do the work assigned, in the absence of said helper, which was tantamount to a failure to furnish sufficient help in the beginning.

At the time appellee was required to do the work in the absence of his helper that appellee was voluntarily refraining from attempting to lift the heavy bundle by himself and was waiting for the return of his helper when the volition of his master stopped in and displaced appellee's volition in language that carried with it the authority of a master, viz.: "Get those things back there and stack them or go to the office and get your pay."

Mason v. Edison Machine Works, 28 F. 228; Brown v. Rome Machine & Foundry Co., 62 S.E. 720.

The duty of the master to furnish sufficient help is a continuing duty, just as the duty of the master to furnish a safe place in which to work is a continuing duty.

Appellee was not permitted to exercise his own volition and refrain from lifting said bundle until his helper returned, but had to submit to the volition of his master or lose his job.

The assumption of risk doctrine has been abolished in this state.

Great Southern Lbr. Co. v. May, 103 So. 363.

Where the given instructions properly submit the disputed issues of the case to the jury, it is not error for the court to refuse other instructions submitting the same issues.

Y. & M. V. Ry. Co. v. Miller (Miss.), 131 So. 101.

Argued orally by Rowland W. Heidelberg, and H. H. Parker, for appellant, and by F. C. Hathorn, and E. B. Williams, for appellee.

Anderson, J., Ethridge, P. J., delivered the opinion of the court on suggestion of error.

OPINION

Anderson, J.

Appellee brought this action against appellant in the circuit court of Pearl River county to recover damages for an injury received by him while in the employ of appellant, alleged to have been caused by the negligence of the latter. There was a trial resulting in a verdict and judgment in favor of appellee in the sum of three thousand dollars. From that judgment appellant prosecutes this appeal.

Appellee was employed as a laborer in the lumber plant of appellant at Picayune. His work was in the pattern department and crate shed. A part of his duties was to assemble packages of boards and braces for use in the making of crates; he and his fellow laborers bound these packages together with wire. The evidence showed that the packages weighed more than two hundred pounds, probably more nearly two hundred fifty pounds. One witness testified that the weight was something like three hundred pounds. These packages were bound together for shipment, and appellee and his coworkers were required to stack them on a platform from which they were to be loaded into railroad cars. In stacking the packages for railroad loading they had to be lifted by the workers from six to seven feet high. Appellee and Monroe Bounds were working together.

Appellee's evidence, which was believed by the jury, showed that Bob Simmons was appellant's foreman over the work; that these packages could not be safely lifted and placed in position by one man; that it was a two-man job, and that Foreman Simmons knew that fact; that Simmons, in his rounds, found Bounds absent (he had gone to get some wire used in binding the packages), and appellee awaiting his return; that Simmons asked appellee what was the matter, why he was doing nothing to which the latter replied that his coworker, Bounds, had gone to get some wire. In reply to this Simmons said, "Hell-fire, we can't shut this plant down for one man, get those things back there and stack them up, or go to the office and get your time," which meant that if appellee did not do the work alone in Bounds' absence he would be discharged. Thereupon appellee, fearing he would lose his job if he refused to obey the foreman, attempted to stack one of the packages on the platform. In doing...