Hines v. Cole

• Decision Date: 12 July 1920
• Docket Number: 21210
• Citation: 85 So. 199,123 Miss. 254
• Court: Mississippi Supreme Court
• Parties: HINES, DIRECTOR GENERAL OF RAILROADS, ET AL. v. COLE. APPEAL from circuit court of Warren county

85 So. 199

123 Miss. 254

HINES, DIRECTOR GENERAL OF RAILROADS, ET AL. v. COLE. APPEAL from circuit court of Warren county

No. 21210

Supreme Court of Mississippi

July 12, 1920

March 1920

1. MASTER AND SERVANT. Responsibility for assault by fellow servant stated.

The master is not liable for the wrongful assault by one servant on another, unless the servant in making the assault was acting within the course of his employment, with a view to his master's business.

2. MASTER AND SERVANT. Fellow-servant rule stated.

The rule at common law is that a master is not responsible to a servant for an injury sustained by him because of the negligence of another servant while both were engaged in the same service, with this exception, that a master who negligently or knowingly employs or retains in his service an incompetent servant is liable for injuries to a fellow servant, through the incompetency of the servant so employed and retained, unless the injured servant has assumed the risks incident to such incompetency.

3. MASTER AND SERVANT. Duty to select fellow servants stated. The duty of the master to exercise care in the selection of fellow servants extends only to the selection of such as possess the qualifications, mental, moral, and physical which will enable them to perform their duties without exposing their comployees to greater dangers than the work necessarily entails.

4. MASTER AND SERVANT. Responsibility for wrongful act of fellow servant stated.

When the fellow-servant rules does not apply, the master is reponsible for an injury wrongfully inflicted by one servant on another, when acting within the course of his employment with a view to the master's business, although the master was not negligent in employing such servant, or in retaining him in his service.

5. APPEAL AND ERROR. On reversal where record presents nothing for jury, judgment will he rendered for appellant. Where the court below should have directed a verdict for appellant judgment will be reversed because of its failure to do so and, where the record presents no question of fact to be ascertained by jury, final judgment will be rendered for appellant in the supreme court, under Code 1906, section 4919 (Hemingway's Code, section 3195).

HON. E. L. BRIEN, Judge.

HON. E. L. BRIEN, Judge.

Action by L. M. Cole against Walker D. Hines, Director General of Railroads, and another. From a judgement for plaintiff, defendants appeal. Reversed and rendered.

Judgment reversed.

Hirsh, Dent & Landau, for appellant.

Facts show no liability. Peremptory instruction should have been given defendant. Plaintiff injured in fight, personal to himself and his antagonist. Railroad Company v. McAfee, 71 Miss. 70; Railroad Company v. Harz, 88 Miss. 681; Railroad Campany v. Latham, 72 Miss. 35, 36.

Plaintiff Cole, and employee Cannon, foreman of equal rank, fellow-servants, violate rule of defendant--curse and assault each other. Cole is injured, defendant not liable; peremptory charge for defendant should have been given. Lagronne v. Railroad Company, 67 Miss. 592; Givens v. Railroad Company, 94 Miss. 830; Edwards v. Lumber Campany, 113 Miss. 378; Canton Campany v. Pool 78, Miss. 147;

Arkansas Natural Gas Company v. Lee, (L. R. A. 1916), ch. 1200; 171 S.W. 93; Tessie Roebuck, Admrx, v. Atchison, Topeka & Santa Fe Railway Company, (L. R. A. 1917E.), 741, 162, P. 1153.

We can conceive, as in the case of Y. & M. V. R. R. v. Hare, 61 So. 648, where it was within the scope of the employee's duty to make arrests or to preserve order, and the employee thus engaged, attempts to make an arrest or stop a fight between two employees and uses excessive force on one of them, and inflicts an injury, the master would be liable, Nettle v. Flower City Ornamental Iron Works, 148, N.W. 43. However, we have been unable to find, after a most diligent search, any case where two employees of equal rank, working together at the same work, have a disagreement about the work or the manner of doing it, which may be trifling or important, and on account of the infirmity of temper, they curse and abuse each other and come to blows as a result of which the master has been held liable for the injury to one of or both of them. We do not believe this court will so hold.

Punitive or exemplary damages are not recoverable against the director general of railroads, agent of the government of the United States. Punitive damages improperly awarded.

Punitive damages are not even recoverable against a municipal corporation, in the absence of a statute authorizing their infliction. Bennett v. City of Marion. 102 Iowa 425; S. C., 63 Am. St. Rep. 454; 1 Sutherland on Damages, p 758. (Cited in some edition as sec. 412); McGray v. Lafayette, 12 Rob. (La.) 674; S. C., 43 Am. Dec. 239; note 59 Am. St. Rep. p. 602; Elliott on Streets, p. 652; Louisiana v. McAdoo, 58 L.Ed. 1506; Minn v. Hitchcock, 185 U.S. 387; 46 L.Ed. 954-962; Kansas v. U.S. 204 U.S. 331-333; 51. L.Ed. 510; Dahn v. McAdoo, 256 F. 549; Rutherford v. Union Pacific R. R. R. Co., 254 F. 880; Castle v. Southern Ry. Co., 99 S.E. 846; Northern Pacific R. D. Co. v. North Dakota, 250 U.S. 135, 63, L. Ed., 897; Jackson Tweed Lumber Co. v. Southern Ry. Co., 101, S.E. 924; Railroad Company v. Hardie, 55 So. 967; Railroad Company v. Williams, 87 Miss. 344; Pullman v. Lawerence, 74 Miss. 810, 22 So. 53; 16. Rose Notes, Unified States Reports, page 247, et seq. (1919, Ed); Washington Gas Light Company v. Lansen, 172 U.S. 544; Schultz v. Brown, 256 F. 187; Circuit Court of Appeals, Ninth Circuit, March 3, 1919; Voves v. Great Northern R. R. Co., 48 L. R. A. (N. S.) 30; Medlin Milling Company v. Boutwell, 34. L. R. A. (N. S.) 909, 133 S.W. 1042; Instructions granted plaintiff erroneous. Not applicable to the law or the facts of this case.

These instructions are as follows: Instruction No. 1. The court instructs the jury for the plaintiff that if you find for the plaintiff, you may in addition to actual damages allow the plaintiff such sum as you may think proper and right by way of punitive damages, by way of punishment to the defendant, provided, you, further believe from a preponderance of the evidence that the assault by Cannon on plaintiff was not in self-defense, but was made by him willfully and wantonly."

This instruction should never have been given in any form, as it is inconsistent with section 10 of the Act of Congress, approved March 28, 1918, entitled: "An act to provide for the operation of transportation systems while under federal control, for the just compensation of their owners, and for other purposes. Said instruction is also in conflict with General Order No. 50-a, which provides in effect that actions, suits and proceedings for the recovery of fines, penalties and forfeitures, shall not be brought against the director general. (See copy of General Order N. 50-A, appendix). This instruction also authorizes the jury to allow the plaintiff such sum as they may think proper and right by way of punishment to the defendant.

Judge TRULY, speaking for the court in Railroad Company v. Magee, 93 Miss. 200, says: "Instructions should always state that the jury are entitled to award such damages as the testimony may warrant; not whatever sum the jury may think right." Railroad Company v. Smith, 82 Miss. 657; Warehouse Company v. Poole, 78 Miss. 147; Barmore v. Railroad Company, 85 Miss. 426; Richberger v. Express Company, 73 Miss. 161.

Instruction No. 3. "The court instructs the jury for the plaintiff that while the burden of proof is on the plaintiff to make out his case, he is not required to make the proof beyond a reasonable doubt, but all that is required is for him to make out his case to the satisfaction of the jury by a preponderance of the testimony and if you believe from a preponderance of the testimony, in the case that T. A. Cannon bore a bad reputation for peace or violence among the men at the shops where he and the other men worked and that his foreman or superior officers knew of his reputation as such or could have known with the exercise of ordinary care, then the defendant is liable to the plaintiff for damages; if you further believe from the testimony that he assaulted plaintiff not in self-defense while they were engaged, in and about the business for the defendant."

This instruction is fatally defective for one of the reasons given with reference to instruction No. 1; that is, that not only must Cannon have been engaged in and about the business for the defendant but he must have committed the deed while acting within the scope or apparent scope of his authority in furtherance of the purpose for which he was employed. Cannon's bad reputation was only placed before the jury for the purpose of lending color to plaintiff's claim. The question as to whether his reputation was bad was submitted to the jury to determine on the evidence in this instruction; however, in instruction No. 4, given for the plaintiff, the court assumes, as a matter of law, that said Cannon was a dangerous man and bore a bad reputation as such among other employees and in instruction No. 5, provides you further believe that the employer had notice that said Cannon was a man of vicious character. Therefore, the only semblance of defense the defendant had to place before the jury was that Cannon assaulted plaintiff in self-defense.

Instruction No. 4. "The court instruction the jury for the plaintiff that if you believe form the evidence in this case that A. T Cannon, an employee of defendant, struck, cursed and abused the plaintiff, while engaged in and about the business of his employer, without cause and that the defendant, through its agent and employees had notice that said Cannon was a dangerous man and bore a bad reputation as such...