Gwin v. Carter

• Decision Date: 22 September 1930
• Docket Number: 28718
• Citation: 129 So. 597,158 Miss. 196
• Court: Mississippi Supreme Court
• Parties: GWIN v. CARTER

129 So. 597

158 Miss. 196

GWIN v. CARTER

No. 28718

Supreme Court of Mississippi

September 22, 1930

Division B

APPEAL from circuit court of Forrest county HON. W. J. PACK, Judge.

Action by Wiley Carter against O. M. Gwin, doing business under the name of the Gwin Construction Company. From a judgment of the circuit court, affirming a judgment of the county court for plaintiff, defendant appeals. Affirmed.

Affirmed.

Stevens & Heidelberg, of Hattiesburg, for appellant.

There is a difference between a foreman, who has the authority to control the services of the men and a vice-principal who has authority to hire and fire men in addition to controlling them. A foreman is a fellow servant of employees under him and the master is not liable for negligence of foreman to fellow servant.

Givens v. Southern Railway Company, 94 Miss. 830; Petroleum Iron Works v. Bailey, 86 So. 644; Lagrone v. Mobile &amp Ohio Railroad Company, 67 Miss. 592; Hercules Powder Co. v. Hammack, 110 So. 675; Cybur Lumber Company v Erkhart, 238 F. 751.

Instructions to a jury to return a verdict in favor of the plaintiff, whether they believed the party committing an assault was a foreman or a vice-principal are erroneous.

Currie & Currie, of Hattiesburg, for appellee.

Where a servant had been placed by the master in his position, with authority to direct his work and control his laborers and in the exercise of this authority, the servant committed an assault, the master is liable.

Richburger v. American Express Company, 73 Miss. 161, 18 So. 922; Great Southern Lumber Co. v. May, 102 So. 854; Alden Mills v. Pendergraft, 115 So. 713.

If the act complained of was in furtherance of the master's business, and within the course of the servant's employment, the master will be liable therefor, although it was in excess of the authority conferred by the master on the servant and was wilfully and maliciously done.

Richberger v. Express Company, 73 Miss. 161, 10 So. 922; Hines v. Greene, 125 Miss. 476, 87 So. 649; 39 C. J. 1285.

All of the instructions both for appellant and appellee made it clear regardless of whether the word foreman or vice-principal, that the criterion was whether or not the servant committing the assault had been delegated with authority to direct and control the work of appellee and whether or not he unlawfully assaulted him about a matter pertaining to the master's business.

The master who puts a servant in a place of trust or responsibility or commits to him the management of his business or care of his property, is justly held responsible when the servant, through lack of judgment or discretion, or from infirmity of temper, or under the influence of passion aroused by the circumstances of the occasion, goes beyond the strict line of his duty and authority and inflicts an unjustifiable injury upon another.

39 C. J. 1285; Alden Mills v. Pendergraft, 115 So. 713; Gill v. Dantzler Lbr. Co., 121 So. 153.

OPINION

Anderson, J.

Appellee brought this action against appellant in the county court of Forrest county, to recover damages in the sum of one thousand dollars for an injury received by appellee while in the employ of appellant, alleged to have been caused by the latter's negligence. The trial in the county court resulted in a judgment in appellee's favor in the sum of one thousand dollars; from that judgment appellant appealed to the circuit court of Forrest county, wherein the judgment of the county court was affirmed. Prom the judgment of affirmance appellant prosecuted this appeal.

The evidence on behalf of appellee made the following case: Appellant, doing business under the name of Gwin Construction Company, was engaged in constructing the Forrest Hotel at Hattiesburg. Appellee was one of appellant's employees, and was working under Joe Halphin, one of appellant's foremen. Appellee was stationed on the seventh floor of the building, engaged in removing loaded wheelbarrows from the elevator, unloading them, and placing them back on the elevator, to be lowered to the ground floor for material. Appellant's foreman, Halphin, as were all of his other foremen was engaged in the construction of the hotel, was under the control and direction of appellant's general superintendent, H. L. Guinn, but appellee, at the time of his injury was working under Halphin, who had the right to direct and control the manner in which the work should be done. Halphin gave appellee orders as to the manner of unloading and replacing the wheelbarrow on the elevator. Halphin claimed that appellee was disobeying his orders in that respect, and for that reason cursed him, and struck him on the nose with his fist, breaking his nose.

Appellant contends that the court erred in refusing to direct a verdict in his favor, upon the ground that the fellow-servant doctrine applied, relieving appellant from responsibility for the appellee's injury. Appellant's position is that in committing the assault and battery on the appellee Halphin was not representing his master, but was acting for himself alone, and therefore the injury was that of a fellow-servant, and not of the master.

There has been a good deal of controversy and disagreement among the courts as to the basis of the master's liability for the acts or omissions of his foremen, and other superior servants. A majority of the courts are agreed that for some acts of the superior the master may be held liable; and all the courts agree, it appears, that the master is not liable for every such negligent act or omission. In a few instances mere superiority of rank has been accepted as the criterion in determining the master's liability, but the propriety of this has been very generally controverted. The courts generally hold that liability for the acts of the superior "is founded upon the power of control or direction with which the master has clothed the actor. And many express powers--as for example that of employing and discharging inferiors--have been specified as criteria for determining whether the master has designated the sort and degree of authority that will render him liable." 18 R. C. L. 743, section 215. But the fundamental consideration in determining the liability of the master for the act of his managing servant is the nature and character of the power of control, direction, and superintendence with which the master has clothed the actor. "An increasingly large number of cases emphasizes this fact, or declares in terms that where the master confers upon another power to control, direct and superintend the persons who are engaged in the business, the director or superintendent, or whatever he may be termed, becomes the master's representative, for whose acts and omissions the master or employer is accountable. He is not a fellow-servant within the fellow-servant doctrine." 18 R. C. L. 748, section 218.

"Generally speaking, the decision as to whether the rule is to be applied depends on whether or not the so-called superior servant has the authority to superintend or control the injured servant, and not merely on the grade or rank of the so-called superior servant." 39 C. J. 574-576, section 691.

Appellant relies on Givens v. So. R. Co., 94 Miss. 830, 49 So 180, 22 L. R. A. (N. S.) 971; Petroleum Iron Works v....