Great Southern Lumber Co. v. May

• Decision Date: 23 February 1925
• Docket Number: 24664
• Court: Mississippi Supreme Court
• Parties: GREAT SOUTHERN LUMBER CO. v. MAY. [*]

102 So. 854

138 Miss. 27

GREAT SOUTHERN LUMBER CO. v. MAY. ^[*]

No. 24664

Supreme Court of Mississippi

February 23, 1925

Division B

Suggestion of Error Overruled April 6, 1925.

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

Action by John May against the Great Southern Lumber Company. From judgment for plaintiff, defendant appeals. Reversed and rendered.

Judgment reversed. Suggestion of error overruled.

Brady & Dean, for appellant.

Appellant submits but one question to this court and that is that it was entitled to a peremptory instruction and that the judgment of the court below should be reversed and a judgment entered in this court for the reason that the appellee and Percy Talley, who were both employees of the appellant, were not acting in the course of their employment and with a view to their master's business.

The record shows the controversy arose over a hanger. That the appellant's employee, Percy Talley, had moved a hanger from the right side of the skidder to the left side of the skidder. That the appellee, who was a fellow servant of Percy Talley, discovered that the hanger had been moved. He ascertained in advance who moved it but, nevertheless, proceeded to leave his place of work because as he stated he wanted the hanger, although he did not need it at that time, and go over to the opposite side of the skidder and demand to know who had moved the hanger. He did not look for the hanger or undertake to use it or secure possession of it. He made a simple demand to know who moved it. The controversy which arose was not on account of an effort to secure the possession of the hanger.

Appellee and his fellow servant, Talley, were not acting within the course of their employment and with a view to the master's business but it was a personal controversy caused by the fact that the appellee was irritated on account of the moving of the hanger.

The master, the appellant was not interested in which one of its two servants had the hanger. The hanger was provided for the convenience of its negro employees who had to load the timbers either on the car or on the hangers. A hanger had just been lost by its employees and one was, therefore, missing. It was not interested in the question as to which of its employees should have the convenience of the identical hanger.

This court in the case of Hines, Director General v. Cole, 85 So. 199, stated that, "The master is not liable for the wrongful assault by one servant on another, unless the servant in making the assault was acting within the course of his employment and with a view to his master's business."

In the case of Director General v. Green, 87 So. 649, this court quoted from the opinion in the Cole case. Appellant is willing to predicate its right to a judgment in this court upon the doctrine laid down in the Green case.

It cannot be thought for a minute that an assault made in reply to a civil question would further the master's interest or that such an assault was with a view to the master's business or within the course of employment of Talley when the master's interest would have been as well furthered or protected by the hanger being in the possession of Talley as in the possession of May or vice versa.

In the Cole case hereinabove cited wherein the foreman in charge of the wood work of the appellant assaulted the foreman in charge of the metal work who was tearing up the wood work, this court stated that the counsel representing Cole, who was the appellee, "do not and could not successfully contend that when Cannon assaulted the appellee he was acting within the course of his employment and with a view to his master's business. "

This court then proceeded to hold that there was no liability, as appellee's counsel contended, on account of the employment by the appellant of a violent and dangerous man. This court stated that conceding for the sake of argument that Cannon was a violent and dangerous character and that he wrongfully assaulted Cole, there was, nevertheless, no liability because "Cannon was not acting in the course of his employment or with a view to his master's business," and cited as authority for its position the following authorities: 2 Cyc. 1539; 20 Am. & Eng. Encyc. Law (2 Ed.), 171; 18 R. C. L. 807; 6 Labatt on Master and Servant (2 Ed.), par. 2347; Richberger v. Express Co., 73 Miss. 161, 18 So. 922, 31 L. R. A. 390, 55 Am. St. Rep. 522; Railway Co. v. Harz, 88 Miss. 681, 42 So. 201; Railway Co. v. McAfee, 71 Miss. 70, 14 So. 260; Railway Co. v. Latham, 72 Miss. 35, 16 So. 757; Railroad Co. v. Hare, 104 Miss. 564, 61 So. 648.

In the case now presented to this court there is no contention made that Talley was a violent and dangerous character. No pretense was made that he is not a peaceable and quiet person. The appellee was a fellow servant of Talley. The fellow-servant doctrine was in full force and effect, since his injury was not suffered in such manner as to enable him to invoke section 6684, Hemingway's Code, abolishing the fellow-servant rule; and to hold to the contrary would violate the Fourteenth Amendment to the Constitution of the United States and deprive the appellant of its property without due process of law and, also, deny it the equal protection of the law. But, conceding that the fellow-servant rule had been abolished and was not in force and effect and that Talley and the appellee were of equal rank, which was hardly the case since Talley was only an extra drum man while May was a regular drum man, then the fact still remains that when Talley assaulted May he was not acting within the course of his employment and with a view to his master's business.

The doctrine laid down in the Cole case was reaffirmed in the Green case herein above cited. Upon this doctrine the appellant in this case is willing to stand.

In the Green case as in the Cole case the question presented was not merely one of wrongful assault but it involved, also, the further question in both cases and especially in the Green case of the turbulent, dangerous and violent character of the man who made the assault. It is not contended in this case that Talley was in any sense a dangerous, quarrelsome or a violent man. No proof of this kind was offered and the whole question, therefore, presented is: Was he engaged in the course of his employment and with a view to his master's business?

In the Green case this court stated that McClendon was acting in the course of his employment and with a view to his master's business because the quarrel arose over the failure of Green to throw a switch, which it was his duty to throw and over which it was the duty of McClendon to operate the locomotive of which he was engineer. In other words, it was his duty to move the locomotive which he was operating over the switch. He had a right to have the switch thrown so he could move over it. He had a right to accost the conductor about not throwing it and when a difficulty arose over the failure of the conductor to throw the switch so as to enable McClendon to move the locomotive of which he was engineer over the switch he was acting within the course of his employment and in insisting that the switch be thrown he was acting with a view to his master's business because it was necessary that the switch be thrown and it was necessary that McClendon move the locomotive which he was operating over the switch, otherwise the master's business would suffer.

The assault made by Talley on May in response to the civil question, "Who of you boys got my hanger?" was not in the course of his employment, was not with a view to his master's business and was not done to further the master's business but in the language of the supreme court of the United States was "a wanton and willful act done to satisfy the temper or spite of" appellant's employee, Talley. See James C. Davis, Director General, v. Mrs. Maude Green, Admx., 67 L.Ed. 229.

Appellant most respectfully insists that this case should be reversed and a judgment entered herein for the appellant for the reason that an assault was not committed upon the appellee by an employee of the appellant who was acting within the course of his employment and with a view to his master's business.

G. Wood Magee and Geo. N. Magee, for appellee.

The fellow-servant rule as to employees of railroads, etc., is abrogated by statute in this state, section 6484, Hemingway's Code, and the rule does not apply in the instant case. Ellis v. Bear Creek Mills Co., 117 Miss. 742. Counsel for appellant says that he is willing to stand on the doctrine laid down in the Green case, 125 Miss. 476. So are we.

The Green case was carried to the supreme court of the United States, 67 L.Ed. 299, but the disposition of the case by that court in no wise abrogated or changed the law as announced by this court in construing the law of this state. In passing upon the case the supreme court of the United States observed: "Whatever may be the law of Mississippi, a railroad company is not liable for such an act under the statutes of the United States." The court was passing upon a statute of the United States. We must submit that the case at bar is very similar in its controlling facts to the Green case.

The hangers did not belong to May or to Talley; they belonged to the appellant. The whole works--skidder, hangers and all--belonged to the appellant. Each of these men, May and Talley, was required to take care of and not lose the hangers furnished them by the appellant. It was quite reasonable, therefore, for May to inquire about the hanger belonging to him when he found it missing, and being informed that Talley had taken it, it was necessary for him to ask about it.

When May went around on Talley's side of the...