Hercules Powder Co. v. Tyrone

• Citation: 155 Miss. 75,124 So. 74
• Decision Date: 14 October 1929
• Docket Number: 27968
• Court: Mississippi Supreme Court
• Parties: HERCULES POWDER CO. v. TYRONE

124 So. 74

155 Miss. 75

HERCULES POWDER CO. v. TYRONE

No. 27968

Supreme Court of Mississippi

October 14, 1929

Division B

1. CORPORATIONS. In employee's action against foreign corporation brought in county in which corporation had its business localized, defendant held not entitled to change venue to county of principal office; "found" (Hemingway's Code 1927, section 500). Where action by employee against foreign corporation for injuries was commenced in county in which corporation had its business localized, corporation was "found" there within meaning of Hemingway's Code 1927, section 500 (Laws 1908 c. 166), and was not entitled to change of venue to county where its principal office existed or a dismissal of case.

2. CONSTITUTIONAL LAW. Venue. Statute relating to venue of civil actions held not to discriminate against foreign corporations (Hemingway's Code 1927, section 500; Constitution United States Amendment 14).

Hemingway's Code 1927, section 500 (Laws 1908, chapter 166), providing that civil actions of which circuit has original jurisdiction shall be commenced in county in which defendant or any of them may be found, and if defendant is domestic corporation in county in which said corporation is domiciled, etc., held not to discriminate against foreign corporations in violation of Constitution United States Amendment 14.

3. MASTER AND SERVANT. Hose attached to boiler of locomotive for cleaning locomotive was not "simple tool" as regards liability for engineer's injury.

Hose attached to boiler of locomotive for purpose of cleaning locomotive could not be classed as "simple tool," and doctrine of simple tools did not apply, where engineer was injured by hot water and steam when nipple slipped off.

4. MASTER AND SERVANT. That servant knows as much as master about complicated instrumentality does not relieve master from furnishing servant with safe instrumentality.

Where machine is complicated, mere fact that servant may happen to know as much as master does about instrumentality does not relieve master from furnishing servant with safe instrumentality.

5. MASTER AND SERVANT. Master as to complicated machinery has nondelegable duty to furnish servant with safe machinery and keep it in reasonably safe condition.

It is nondelegable duty of master as to complicated machinery to furnish servant with safe machinery and appliances with which to do his work, and to keep machinery and appliances in reasonably safe condition.

6. MASTER AND SERVANT. Engineer, directed against own judgment to clean locomotive with defective hose, held not to have assumed risk, statute not applying (Hemingway's Code 1927, section 518.

Where master requested locomotive engineer to continue employment and to clean locomotive by using defective hose, against judgment of engineer, master, in effect, represented appliance to be safe, and engineer had right to rely upon master's judgment and to act under his direction without assuming any risk in doing so, since master was guilty of negligence in directing engineer to do so under circumstances, and exception in latter part of Hemingway's Code 1927, section 518, did not apply because engineer was directed to use hose and was not voluntarily operating engine.

7. MASTER AND SERVANT. Instruction to return verdict for injured engineer if employer negligently attached defective water hose and directed him to use it assuring him it was safe held not error.

In action for injuries sustained by locomotive engineer when hot water and steam escaped from hose when he was cleaning locomotive, instruction that if employer negligently attached hose in dangerous manner and that engineer protested to assistant superintendent who assured him it was safe and promised to furnish another hose on following Monday, and that plaintiff relied on same and used hose and as result was injured, jury should return verdict for plaintiff, held not reversible error.

8. APPEAL AND ERROR. Defendant could not complain that instruction conflicted with another instruction, where instruction was favorable to defendant.

Defendant could not complain that instruction was in conflict with another instruction given, where, if there was any conflict instruction was wrong and stated law more favorably to defendant than it was entitled to have it stated.

ON SUGGESTION OF ERROR.

MASTER AND SERVANT. Comparative knowledge doctrine is unavailing where servant's injury resulted from master's negligence (Hemingway's Code 1927, section 518).

Comparative knowledge doctrine is unavailing where injuries to servant resulted in whole or in part from negligence of master, since Laws 1914, chapter 156 (Hemingway's Code 1927, section 518), has abolished assumption of risk in such cases.

HON. J Q. LANGSTON, Judge.

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

Action by J. W. Tyrone against the Hercules Powder Company. From a judgment for judgment for plaintiff, defendant appeals. Affirmed.

Judgment affirmed. Suggestion of error overruled.

Hannah & Simrall, of Hattiesburg, for appellant.

The motion filed by the appellant (the defendant in the court below) to dismiss the case or to transfer it to the circuit court of Forrest county should have been sustained.

Sec. 500 of Hemingway's 1927 Code; Plummer-Lewis Co. v. Francher, 111 Miss. 656, 71 So. 907; Morrimac Veneer Co. v. McCallip, 129 Miss. 691, 92 So. 817; Power Mfg. Co. v. Harvey Saunders, 71 L.Ed. (U.S.) 1165.

The trial court should have sustained the motion of the defendant for a directed verdict upon the conclusion of the plaintiff's case.

(a) The tool, involved in this case, was a "simple tool" and the servant's knowledge and judgment was equal to that of the master with reference to the appliance furnished by the master.

Anderson v. McGrew, 122 So. 492; Hooks v. Mills, 101 Miss. 91, 57 So. 545; Wausau Southern Lbr. Co. v. Cooley, 130 Miss. 333, 94 So. 228; Parker v. Wood Lumber Co., 98 Miss. 750, 54 So. 252; 20 R. C. L. 15, par. 10; 18 R. C. L., page 547, par. 62, page 562, par. 73, page 639, par. 135 and page 685, par. 173.

(b) It was the duty of the plaintiff, to keep the engine and everything connected therewith in proper working order, he cannot complain of the injuries received by him because the hose was not properly fastened to the said locomotive.

Hooks v. Mills, 101 Miss. 91, 57 So. 545.

(c) The plaintiff had assumed by his employment the hazards and the dangers incident to this hose pipe blowing off.

Austin v. Mobile & Ohio Railroad Co., 134 Miss. 226, 99 So. 3.

The giving of an instruction, telling the jury that if appellant, prior to appellee's employment negligently attached and left hot water hose in an unsafe and dangerous manner and that appellee protested to appellant, prior to using such hose, and appellee was directed to use same and injury resulted from such use, the appellant was liable, was erroneous.

Waterman-Fouk Lbr. Co. v. Miles, 135 Miss. 146, 99 So. 759; Wausau Southern Lumber Co. v. Cooley, 103 Miss. 333, 94 So. 228.

Some of the instructions given for appellant and appellee were in conflict.

Hines v. Lockhart, 105 So. 449.

Where the servant knows and appreciates the danger of the work he undertakes or the danger incident thereto is so obvious and imminent that an ordinarily prudent man would not undertake the work, he assumes the risk, although the work is undertaken by virtue of express commands or threats of the master.

39 C. J. 1002; 39 C. J., page 789, sec. 987, page 790, secs. 988 and 999; Truly v. J. E. North Lumber Co., 36 So. 4; 18 R. C. L., page 146, note 10.

Liability exists when the perils of the employment are known to the employer, but not to the employee; and no liability is incurred when the employee's knowledge equals or surpasses that of the employer.

18 R. C. L. page 548; Arkansas Smokeless Coal Co. v. Pippins, 92 Ark. 138, 122 S.W. 113, 19 Ann. Cas. 861; Pennsylvania Co. v. Congdon, 134 Ind. 226, 33 N.E. 795, 39 A. S. R. 251; Peterson v. New Pittsburgh Coal, etc., Co., 149 Ind. 260, 49 N.E. 8, 63 A. S. R. 289; Atchison, etc., R. Co. v. Sadler, 38 Kan. 128, 16 P. 46, 5 A. S. R. 729; Hill v. Atchison, etc., R. Co., 81 Kan. 379, 195 P. 447, 47 L.R.A. (N.S.) 1141; Langdon-Creasy Co. v. Rouse, 139 Ky. 647, 72 S.W. 113, Ann. Cas. 1912B 292; Riley v. State Line S. S. Co., 29 La. Ann. 791, 29 Am. Rep. 349; Wickham v. Detroit United Ry., 160 Mich. 277, 125 N.W. 22, 136 A. S. R. 436, 52 L.R.A. (N.S.) 1082; Rogers v. Roe, 74 N.J.L. 615, 66 A. 408, 13 L.R.A. (N.S.) 691; St. Louis, etc., R. Co. v. Mayne, 36 Okla. 48, 127 P. 474, 42 L.R.A. (N.S.) 645; Purdy v. Westinghouse Electric, etc., Co., 197 Pa. St. 257, 47 A. 237, 80 A. S. R. 816, 51 L.R.A. 881; Notes: 77 Am. Dec. 223, 13 L.R.A. (N.S.) 669; Notes: 98 A. S. R. 303, 305; 41 L.R.A. 47; 35 L.R.A. (N.S.) 680; Griffith v. Cole, 183 Ia. 415, 165 N.W. 577, L.R.A. 1918F 923; Louisville, etc., R. Co. v. Wright, 183 Ky. 634, 210 S.W. 184, 4 A.L.R. 478; Beard v. Chicago, etc., R. Co., 134 Minn. 162, 158 N.W. 815, L.R.A. 1916F 866; Wausau Southern Lbr. Co. v. Cooley, 94 So. 228; Truly v. J. E. North Lumber Co., 36 So. page 4.

O. C. Luper, of Prentiss, and Hall & Hall, of Columbia, for appellee.

The circuit court of Pearl River county properly retained jurisdiction of this cause.

Sec. 500, Hemingway's 1927 Code; Dean v. Brannon, 139 Miss. 312, 104 So. 173; Indianola Cotton Oil Co. v. Crowley, 1211 Miss. 262, 83 So. 409.

A railroad locomotive engine is not a simple tool.

G. M. & N. R. R. v. Graham, 117 So. 881; St. L. & C. R. R. v. Ewing (Tex.), 180 S.W. 300; 18 R. C. L., page 669, par. 135.

The defense of the assumption of risk has been abolished in this state.

Sec. 518, Hemingway's 1927 Code.

Appellee did not...