Hamilton Bros. Co. v. Narciese

• Decision Date: 07 January 1935
• Docket Number: 31316
• Citation: 158 So. 467,172 Miss. 24
• Court: Mississippi Supreme Court
• Parties: HAMILTON BROS. CO. v. NARCIESE

158 So. 467

172 Miss. 24

HAMILTON BROS. CO. v. NARCIESE

No. 31316

Supreme Court of Mississippi

January 7, 1935

Division A

1. MASTER AND SERVANT.

Employee engaged in carrying buckets of molten asphalt from porch roof to main roof, where other employees were to apply asphalt was not engaged in work of changing or shifting nature, as regards liability of employer for injuries received by employee on porch roof.

2. MASTER AND SERVANT.

Employer in discharge of its continuing duty to provide employee receiving buckets of molten asphalt on porch roof and delivering buckets to main roof with reasonably safe place to work and to maintain place in reasonably safe condition, was required to guard against injuries which reasonably prudent person could have foreseen as reasonably likely to occur.

3. MASTER AND SERVANT.

In action by employee for injuries sustained from fall received by stepping on accumulated mass of spilled asphalt, whether employer's officer exercising supervision over employee should have reasonably anticipated injury would result from spilling of asphalt held for jury.

4 RELEASE.

Evidence sustained finding of invalidity of instrument executed by employee releasing employer from damages for injuries because of temporary insanity or mental incapacity of employee to contract.

5. CONTRACTS. Evidence.

Law presumes sanity and mental capacity to contract.

6. INSANE PERSONS.

Party seeking to avoid instrument on ground of insanity or mental incapacity of maker must establish insanity or mental incapacity by preponderance of proof, and not by clear, convincing, and indubitable proof.

7. APPEAL AND ERROR.

Instruction to disregard employee's release if employer obtained release when employee was overcome by physical pain and mental anguish from injuries and when he was mentally incapable of comprehending instrument held not prejudicial to employer, where gravamen of employee's pleading regarding release was temporary insanity or mental incapacity to contract.

8. RELEASE.

Where employee sought to set aside instrument releasing employer from damages for injuries as invalid for temporary insanity or mental incapacity of employee to contract, instruction held not erroneous as informing jury that valid contract could be executed only by party mentally capable of understanding and comprehending meaning, nature, and purpose of every term and provision of contract, where language of instruction was "every material term and provision" of contract.

HON. WM. A. WHITE, Judge.

APPEAL from circuit court of Harrison county HON. WM. A. WHITE, Judge.

Action by Peter B. Narciese against the Hamilton Bros. Company. From a judgment for the plaintiff, the defendant appeals. Affirmed.

Affirmed.

Heiss & Heiss, of Gulfport, and W. L. Guice, of Biloxi, for appellant.

This was a situation where there was ever changing circumstances which made it impossible for the master to at any time know of any danger to his servant and which the servant did not know himself and which the servant failed to warn the master of and which the servant, in his suit, has failed to show to the court any reasonable method by which it believed could have been avoided.

R. R. Co. v. Price, 18 So. 415; Dobbins v. Lookout Oil & Rfg. Co., 97 So. 549; Y. & M. V. R. R. Co. v. Downs, 67 So. 962; Edward Hines Lbr. Co. v. Dickinson, 125 So. 93; Gulf M. & N. O. R. R. v. Brown, 108 So. 503.

Not only must fraud be proven by clear and convincing evidence, but this evidence must be indubitable, which means that it must be beyond a doubt of its truthfulness.

A. & V. R. R. Co. v. Trumbull, 16 So. 346; A. & V. R. R. Co. v. Kropp, 92 So. 691.

If a man, for a legal consideration, enters into a legal bargain of release, this release, like all other written agreements, must not and cannot be set aside unless it is set aside by evidence on behalf of the plaintiff which in itself, not with reference to the defendant's evidence, but in itself is clear and convincing, and as the court further says, indubitable, which means, as we understand languages, beyond a doubt.

Griffith's Chancery Practice, Secs. 501-589; Ellis v. Ellis, 134 Miss. 150; Y. & M. V. R. R. v. Hawkins, 132 So. 742.

R. A. Wallace, of Gulfport, for appellee.

It is the non-delegable duty of the master to exercise reasonable care to furnish his servant a reasonably safe place to work.

Finkbine Lbr. Co. v. Cunningham, 101 Miss. 292, 57 So. 916; Edwards v. Haynes-Walker Lbr. Co., 113 Miss. 378, 74 So. 284; Sea Food Co. v. Alves, 117 Miss. 1, 77 So. 857; Benton v. Finkbine Lbr. Co., 118 Miss. 558, 79 So. 346; Y. & M. V. R. R. Co. v. Smith, 117 So. 339; Gulf Refining Company v. Ferrell, 147 So. 476.

The duty of the master to furnish his servant a reasonable safe place to work is a continuing duty, it is not satisfied by putting the place in a reasonably safe condition once, and then allowing it to become dangerous while the servant is at work, but it must be maintained in a reasonably safe condition at all times while the servant is at work.

Finkbine Lbr. Co. v. Cunningham, 101 Miss. 292, 57 So. 916; Sea Food Co. v. Alves, 117 Miss. 1, 77 So. 857; Gulf Refining Company v. Ferrell, 147 So. 476; Murray v. Natchez Drug Co., 100 Miss. 260, 56 So. 330.

The risk arising from a dangerous place to work is not assumed by the servant, where his master is negligent.

Murray v. Natchez Drug Co., 100 Miss. 260, 56 So. 330; A. & V. R. R. Co. v. Groome, 52 So. 703; Sea Food Co. v. Alves, 117 Miss. 1, 77 So. 857; Sec. 513, Code 1930.

Where a servant acts under the orders and directions of his superior, who has the right to control his services, the doctrine of assumption of risk does not apply.

St. L. & S. F. R. R. Co. v. Guin, 109 Miss. 187, 68 So. 78; Central Lumber Co. v. Porter, 139 Miss. 66, 103 So. 506; Hercules Powder Co. v. Tyrone, 155 Miss. 75, 124 So. 74; Wilbe Lbr. Co. v. Calhoun, 163 Miss. 80, 140 So. 680; Gulf Refining Company v. Ferrell, 147 So. 476.

Under the facts of this case, it was a jury question as to whether the appellant was negligent in the matter of furnishing and maintaining a reasonably safe place for the appellee to work.

Finkbine Lbr. Co. v. Cunningham, 101 Miss. 292, 57 So. 916; Edwards v. Haynes-Walker Lbr. Co., 113 Miss. 378, 74 So. 284; Sea Food Co. v. Alves, 117 Miss. 1, 77 So. 857; Benton v. Finkbine Lbr. Co., 118 Miss. 558, 79 So. 346.

On the disaffirmance of a contract by an infant, or insane person, the rights of the parties are to be determined as if the contract had never existed.

Woolbert v. Lee Lumber Co., 151 Miss. 56, 117 So. 354; Bell v. Smith, 155 Miss. 227, 124 So. 331; 11 R. C. L. 601, sec. 28; Wod v. State, 58 Miss. 742; Sheehan et al. v. Kearney et al., 82 Miss. 688, 21 So. 41; Hutson v. Continental Casualty Co., 142 Miss. 388, 107 So. 520.

In all civil actions it is generally held that the burden of proof of insanity rests upon him who alleges it, or seeks to avoid an act on account of it, and it devolves upon him to establish the fact of insanity by a preponderance of the evidence.

14 R. C. L. 622, sec. 74; 32 C. J. 786, sec. 640; 32 C. J. 787, sec. 642; King v. Rowan, 82 Miss. 1, 34 So. 325; Jamison v. Jamison, 96 Miss. 288, 51 So. 130; Washam v. Beaty, 99 So. 163; Greene v. Phoenix Mutual Life Ins. Co. et al., 10 L.R.A. (N.S.) 576.

Argued orally by J. L. Heiss and W. L. Guice, for appellant, and by R. A. Wallace, for appellee.

OPINION

Cook, J.

This is an appeal from the judgment of the circuit court of Harrison county awarding the appellee, Peter B. Narciese, a recovery for personal injuries alleged to have been sustained as a result of the negligence of the appellant, Hamilton Bros. Company.

The facts shown by the record are substantially as follows: The appellee was employed by the appellant company, which was engaged in the application of sheet felt and asphalt to the surface of the roof of the Gulfport Compress building, in the city of Gulfport. This work was being done under the direct supervision of one of appellant's vice presidents, N. A. Rice, who personally directed and supervised the ways, means, and methods of prosecuting the work and the labors of the workmen engaged therein. The building which was being roofed was about four hundred feet long, and the roof covering it was almost flat. Along the side of the building, there was a shed or porch, the roof of which, where it joined the main building, was about three feet lower than the roof of the building itself. This porch or shed was about ten or twelve feet wide, and its roof sloped one inch to the foot from the point where it joined the main building to the outer edge or eaves thereof. At the time the appellee was injured, the sheet felt had been applied to the roof of the main building and to the porch roof, and the employees of appellant were spreading molten asphalt on the roof of the main building. For the prosecution of this work they were using a large kettle, equipped with a heating furnace, which was located on the ground near the porch, in which the raw asphalt was boiled preparatory to the application thereof to the roof. For the purpose of raising the molten asphalt, in buckets, to the surface of the porch roof, there was attached to the edge of the roof a derrick which was equipped with a pulley and a rope with a hook attached to one end. Sheet iron buckets of about five-gallon capacity were being used to convey the molten asphalt from the kettle in which it was boiling to the points on the roof where it was applied.

Two laborers, stationed on the ground, were engaged in boiling the asphalt, filling the buckets, and elevating them to the porch roof by means of the derrick. The appellee was stationed on the porch roof, and his duties...