Handy v. Mercantile Lumber Co

• Decision Date: 09 February 1920
• Docket Number: 20964
• Citation: 121 Miss. 489,83 So. 674
• Court: Mississippi Supreme Court
• Parties: HANDY v. MERCANTILE LUMBER CO

83 So. 674

121 Miss. 489

HANDY v. MERCANTILE LUMBER CO

No. 20964

Supreme Court of Mississippi

February 9, 1920

March 1920

MASTER AND SERVANT. Violation of statute limiting working hours gave. no right of action to injured employee not working about machinery.

Law 1916, chapter 239 (Hemingway's Code, sections 4523--4524) making it unlawful for parties engaged in manufacturing or repairing, to work an employee more than ten hours a day applies only to employees working with or around machinery and its violation gave no right of action for injury to an employee unloading from cars lumber which other employees were taking to the planing machine.

HON. W H. POTTER, Judge.

APPEAL from the circuit court of Hinds county, HON. W. H. POTTER Judge.

Action by Mitchell Handy against the Mercantile Lumber Company. From a judgment for defendant, plaintiff appeals.

The facts are fully stated in the opinion of the court.

Judgment affirmed.

Ridgeway, Enoch & Ridgeway, for appellant.

Every violation of law enacted for the protection of another, that is the proximate cause of injury to that other, is negligence per se, and actionable. Inland Steel Co. v. Yedinak, 172 Ind. 423, 87 N.E. 229, 139 Am. St. Rep. 391; Nickey v. Steuder, 164 Ind. 186, 73 N.E. 117; Payne v. Chicago, etc., R. Co., 129 Mo. 405, 31 S.W. 885; Bludorn v. Missouri Pac. R. Co., 121 Mo. 258, 24 S.W. 743; Mathison v. Mayer, 90 Mo. 685, 2 S.W. 834; Linciln Tr. Co. v. Heller, 72 Neb. 127, 100 N.W. 197, 102 N.W. 262; Omaha St. R. Co. v. Duval, 40 Neb. 29, 58 N.W. 531; Wise v. Morgan, 101 Tenn. 273, 48 S.W. 971, 44 L. R. A. 458; Siebert v. McManus, 104 La. 404, 29 So. 108; Kyne v. Wilmington, etc., R. Co., 8 Houst (Del.), 185, 14 A. 922; Gibson v. Leonard, 143 Ill. 182, 32 N.E. 182, 17 L. R. A. 588, 36 Am. St. Rep. 376.

The supreme court of the State of California, in McKune v. Santa Clara, etc., 110 Cal. 486, 42 P. 980, said: "That the failure of any person to perform a duty imposed upon him by statute or legal authority is sufficient evidence of negligence has been repeatedly declared by this court. Siemers v. Eisen, 54 Cal. 418; Driscoll v. Market Street, etc., Ry. Co., 97 Cal. 553, 32 P. 591, 33 Am. St. Rep. 203;" St. Louis & Iron Mountain Railroad Co. v. McWhirter, 229 U.S. 265, 57 Law Ed. 1179.

Point II.

The APPELLEE ENGAGED IN MANUFACTURING.

The business in which the appellee was engaged is that of planing or dressing lumber. And the appellee is what is known as and called a custom planing mill. Throughout the section of the state in which appellee is domiciled are numerous planers. The purchasers of this lumber more often than otherwise require this lumber to be planed or dressed. And to meet this requirement the manufacturers and sellers of this rough-sawn lumber, load and ship it out to their customers, via Jackson, Mississippi, in care of appellee, for planing. The appellee unloads the lumber, planes or dresses it, reloads it and ships it on to the customers. The operation is what is known as and called a milling-in-transit proposition.

The declaration alleges that the appellee carries on its business of planing lumber by means of a very great amount and variety of complicated machinery operated by the agency of steam, and large forces of employees.

This court, in the case of Buckeye Cotton Oil Co. v. State, 103 Miss. 767, 660 So. 775, said: "It will be observed that the business in which appellant was engaged is that of separating cotton seed into its component parts, giving to those parts new forms, and rendering them suitable for new uses. In the Newman Lumber Co. case, supra, we held that a person is engaged in manufacturing, within the meaning of this statute, when he is engaged in the production of articles for use from new forms, qualities, properties or combinations by means of an organized force of laborers working with machinery. From this it clearly appears that appellant is engaged in manufacturing."

So we say, that the appellee in the case at bar, whose business is that of planing or dressing lumber, which it does by a very great amount and variety of complicated machinery operated by the agency of steam, and large forces of employees, is engaged in manufacturing.

Point III.

APPELLANT WITHIN THE PROTECTION OF THE STATUTE.

It will be recalled that the declaration charges that the cars of lumber shipped to appellee for planing were placed on the private track of the appellee upon its premises and alongside its platform near its planing machinery for unloading for planing, and that the appellant was employed to assist in unloading these cars, his particular duty being to climb up into the cars of lumber and stick or hand out the pieces of lumber therein to fellow employees on said platform, who loaded same on two-wheel carts and rolled it to the planing machinery nearby for immediate planing, and who immediately returned with other empty carts for more lumber from the car for planing. It will be also recalled that the declaration charges that by reason of the performance of said duty by the appellant, the said machinery, mill and business of the appellee was kept going and in operation, in that said lumber was at once planed or dressed on unloading and reloaded by others on cars for shipment, being what is called a milling-in-transit matter.

In the first opinion of this court in the case of State v. Newman Lumber Co., 102 Miss. 802, 59 So. 923, this court, speaking through Mr. Justice REED said: "A reasonable definition may be given to 'manufacturing' (Century Dictionary) as the system of industry which produces manufactured articles, and to manufacture, as the production of articles for use from raw or prepared materials, by giving to these materials new forms, qualities, and properties, or combinations, whether by hand labor or machinery used more especially for production in a large way by machinery, or many hands working cooperatively."

And on suggestion of error in the above case, in 103 Miss. 263, 660 So. Co. 215, this court speaking through Mr. Justice COOK, restricted the above definition, and limited "manufacture" to production by machinery, saying: "The constant changes in and additions to the definitions of words is aptly illustrated by the word "manufacture." Dictionaries of latest publication have added new definitions, created by the growth of the language. Referring to Webster's New International Dictionary, 1910, "manufacture" is thus defined: "To produce by labor, especially now, according to an organized plan and with division of labor, and usually with the use of machinery," We must conclude that the legislature employed the words of this statute in their usual and most common sense, and when we now speak of manufacturing, we usually have in mind an organized force of laborers, working with machinery, to produce from the raw material the finished product. The broader language of our former opinion is qualified to harmonize with this definition."

And this court, in the case of Buckeye Cotton Oil Co. v. State, 103 Miss. 767, 60 So. 775, had occasion to pass further upon the definition, and through Chief Justice SMITH, said: "In order for appellant to be guilty, it must not only be engaged in manufacturing, but the employees alleged to have been worked by it overtime must be of the class protected by the statute."

In the Newman Lumber Company case we held that all possible employees of a manufacturing establishment are not within the protection of the statute; but it necessarily follows from the construction there put upon the statute that all employees who compose the organized force and work with machinery, whose work supplements that of the machinery, and must be performed while it is, and in order that it may be kept in operation, are within its protection. The legislature clearly intended to protect the employee who is confined to the precincts of the manufacturing establishment and who is practically held in bondage by the machine with, or in connection with, which his work is performed, making it compulsory upon him to answer all of its motions with corresponding action. Appellant's employees Ford, Brown and Green are therefore within the protection of the statute, and appellant violated it in working them for more than ten hours in one day.

This, court, in this last case, speaking of the duty of said employee Brown, "That Sol Brown was a seed feeder, whose duty as such was to feed the cotton seed from the bins into the tunnel conveyor by which they are carried, by means of a screw, automatically into a sand and boll screen room."

And in regard to another employee, A. M. Henry, superintendent of the Buckeye Cotton Oil Co., who was named in the indictment, the court said in the above case; "It is also impossible for us to determine from the agreed statement of facts whether the employee Henry is of the class protected by the statute, as we are not thereby sufficiently advised of the character of the work performed by him. His having general supervision of the operations of said mill may, or may not confine him to the precincts of the mill, and charge him with the duty of supervising employees while at work and the machinery while in operation."

It is familiar learning that a law to pass muster, which prescribes a different rule of conduct for one employee, must be based upon some substantial difference in the business of the two employers that bears a reasonable and just relation to the rule prescribed; otherwise it would be unconstitutional. Bradford Construction Co. v. Heflin, 88 Miss. 314, 42 So. 174.

When the demurrer was argued in the court below, the learned attorney who represents the appellee, with the 113th volume of the Mississippi Supreme Reports in his hand, remarked to the...