Harper v. Public Service Corporation of Mississippi

Decision Date16 April 1934
Docket Number31045
Citation154 So. 266,170 Miss. 39
CourtMississippi Supreme Court
PartiesHARPER v. PUBLIC SERVICE CORPORATION OF MISSISSIPPI

Division B

1. MASTER AND SERVANT.

Under doctrine of dual capacity which is recognized in Mississippi master is liable only for those acts of his foreman when exercising supervisory authority, and not for those acts of foreman when engaged in detailed and delegable work of laborer.

2. MASTER AND SERVANT.

Corporation held not liable for negligence of its foreman in turning lever at his end of gas pipe being repaired, thus causing foreign substances to be discharged into face of laborer working at other end of pipe, since foreman was then acting as fellow laborer and not exercising his supervisory authority.

HON. W J. PACK, Judge.

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

Action by T. A. Harper against the Public Service Corporation of Mississippi. From a judgment for defendant, plaintiff appeals. Affirmed.

Affirmed.

Jesse M. Byrd, of Leakesville, and Currie & Currie, of Hattiesburg, for appellant.

Our court has many times stated that all facts must be most favorably resolved in favor of the plaintiff and accepted as true where there is no contradictory testimony when considering the granting of a peremptory instruction.

Newton v. Homochitto Lumber Co., 138 So. 564; Barron Motor Co. v. Bass, 150 So. 202.

The foreman was not assisting Harper in capping the pipe, was handing him no instrumentalities with which to do it, but at a separate point altogether acting for the master and as the master's sole representative in authority there on the job negligently and carelessly turned the gas on at a time when he had given orders to the appellant to do certain work, which work required the appellant to get down over the open or exposed pipe, and while down over it this high pressure of gas which was shown to be some twenty-seven or thirty pounds was negligently and carelessly turned on and blew this poisonous accumulation of naphtha and other foreign substances in to his eyes.

A peremptory instruction should not be given for the defendant if the state of the evidence is such that they would not vacate a verdict predicated thereof in plaintiff's favor.

Rhymes v. Jackson Electric R. & Co., 85 Miss. 140, 37 So. 708; Anderson v. Cumberland Tel. & Co., 86 Miss. 341, 38 So. 786; Sec. 586, p. 443, Miss. Code of 1930; Fore v. Alabama & R. Co., 87 Miss. 211, 39 So. 493, 690; American Trading Co. v. Ingram-Day Lbr. Co., 110 Miss. 31, 69 So. 707; Dean v. Brannon, 139 Miss. 312, 104 So. 173; McKinnon v. Braddock, 139 Miss. 424, 104 So. 154; Wise v. Peugh, 140 Miss. 165, 106 So. 81; New Orleans & R. Co. v. Jackson, 140 Miss. 375, 105 So. 770; New Orleans & R. Co. v. Martin, 140 Miss. 410, 105 So. 864; St. Louis & R. Co. v. Mixon & Phillips, 141 Miss. 677, 105 So. 478; Yates v. Houston & Murray, 141 Miss. 881, 106; So. 110; Gulf & R. Co. v. Hales, 140 Miss. 829, 105 So. 458.

After appellee's vice principal had blown the old pipe and closed the valve and ordered appellant to cap the same it was the duty of appellee, the defendant below, by and through its vice principal, McLain, not to do anything while appellant was so engaged in that work that would render the work he was doing dangerous, or subject him to peril or injury while he was carrying out the orders of his vice principal.

Edwards v. Haynes Walker Lbr. Co., 113 Miss. 378, 74 So. 284; Labatt's Master & Servant (2 Ed.), p. 1110; Benton v. Finkbine Lbr. Co., U.S. Miss. 558, 79 So. 346; Finkbine Lbr. Co. v. Cunningham, 101. Miss. 292, 57 So. 916; Murdock Campbell v. Jones, 60 Wash. 265, 110 P. 1083, 20 A. R. 671; Y. & M. V. R. R. Co. v. Smith, 117 So. 339; Janco v. West Coast Mfg., etc., Co., 40 Wash. 230, 82 P. 284.

Heidelberg & Roberts, of Hattiesburg, for appellee.

Even if it should be conceded that the pipe fitter, McLain, was a superior servant or vice-principal, still in performing the manual labor of taking the wrench and turning the valve and thereby causing the gas to flow through the pipe, he became an ordinary employee or laborer, a fellow-servant of the plaintiff, for whose act the defendant would not be responsible, for it is the well established law of Mississippi that a superior servant or vice-principal while actually and actively engaged in manual labor with a co-worker becomes an ordinary employee or laborer, a fellow-servant.

Lagrone v. Mobile & Ohio Railroad Co., 67 Miss. 592; Gwin v. Carter, 129 So. 597; Hercules Powder Co. v. Hammack, 145 Miss. 304, 110 So. 676; McMaster v. I. C. Railroad Co., 65 Miss. 264, 4 So. 59; Givens v. Southern Railway Co., 94 Miss. 830, 49 So. 180; Petroleum Iron Works v. Bailey, 124 Miss. 11, 86 So. 644.

Superior servant or vice-principal, while actually and actively engaged in manual labor with coworker, becomes ordinary employee or laborer, a follow-servant, required, with other servants, to look after safety of working place.

Barron Motor Co. v. Bass, 150 So. 202.

Where reasonably safe place to work doctrine applies, fellow-servant doctrine has no application because of rule that duty of master in that respect is nondelegable.

G. M. & N R. R. Co. v. Brown, 143 Miss. 890, 108 So. 503; Kentucky Coal Co. v. Nance, 165 F. 44, 91 C. C. A. 82; International Shipbuilding Co. v. Carter, 121 Miss. 103, 83 So. 413.

Argued orally by Dan T. Currie, for appellant, and by Rowland W. Heidelberg, for appellee.

OPINION

Griffith, J.

The appellant and two or three other workmen were testing and repairing a gas pipe. Appellant, a laborer, was working at one end...

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