Hines v. Green

• Decision Date: 04 April 1921
• Docket Number: 21567
• Citation: 87 So. 649,125 Miss. 476
• Court: Mississippi Supreme Court
• Parties: HINES, AGENT v. GREEN

87 So. 649

125 Miss. 476

HINES, AGENT v. GREEN

No. 21567

Supreme Court of Mississippi

April 4, 1921

1. MASTER, AND SERVANT. Assault on servant by another servant in course of employment actionable.

Where a master employs a dangerous, quarrelsome, and vicious servant or retains him in his service after knowledge of his dangerous character, and such servant, while in the course of his employment and in furtherance of the master's business, commits an assault on another servant, who is also employed in the master's business and is acting in furtherance of the master's business, the master is liable for the injuries resulting from the wrongful assault.

2. MASTEB AND SERVANT. Railroad, engineer's assault on conductor held actionable.

Where a conductor of a switching crew, including an engineer, was engaged in moving an engine and passenger cars from one point in the yard to another point therein, and where to complete the movement it is necessary to pass through a switch, and where the engine was halted because the switch was not thrown, and the engineer because of such fact assaults the conductor because the switch is not thrown, so that the engine may proceed to its destination, and where it was the conductor's duty to have the switch thrown, the engineer and the conductor are acting in the course of their employment, about the master's business, and the master is liable for a wrongful assault by the engineer on the conductor.

3 COMMERCE. Rule for determining applicability of federal Employers' Liability Act stated; federal Employers' Liability Act held inapplicable to action for assault upon railroad employee by engineer.

When applicability of the federal Employers' Liability Act (U S. Comp. St., sections 8657-8665) is involved, or it is to be determined in a suit whether it is applicable or not, it may generally be determined by inquiring whether at the time of the injury, the employee was engaged in work so closely connected with interstate transportation as, practically, to be a part of it. The facts in this case do not bring it within this rule as the cars being switched neither carried interstate commerce nor were they to be used immeddiately in interstate commerce, nor had they been used immediately before in such commerce, hut were only used therein whenever the exigencies of the railroad called them into service for that purpose.

4. MASTER AND SEBVANT. Risk of railroad's negligence not assumed.

Under the laws of this state the servant does not assume the risk in cases against railroad companies, where the master is negligent.

5 DEATH. Verdict in excess of present cash value of expectancy under federal act reduced.

Where in a suit against a railroad company for an injury to a servant no case for punitive damages is made, and where the court instructs the jury that the rules applicable to the federal Employer's Liability Act (U. S. Comp. St., sections 8657-8665) governs the amount of damages, and where the verdict is in excess of the amount of the present cash value of that part of the expectancy which they could recover under such rule, hut in fact the liability is governed by state law, the verdict will not be permitted to stand, unless a remittitur is entered, reducing the amount to such sum as could stand under such rule of liability.

HON. R. S. HALL, Judge.

APPEAL from circuit court of Forrest county, HON. R. S. HALL, Judge.

Action by Mrs. Maud E. Green, as administratrix, against Walker D. Hines, agent. Judgment for plaintiff, and defendant appeals. Affirmed, with remittitur.

Judgment affirmed.

Tally & Mayson and T. J. Wills, for appellant.

The declaration in this cause states that the deceased, Jesse Green, was the engine foreman, charged by the master with the duty of controlling and directing the movement of the trains and the labor of the other employees, and to order, command and direct the workmen, that is, the engineer, fireman and switchmen on such trains. It further charged that the engineer, Zack McLendon, was a quarrelsome, vicious and dangerous man with whom the said Jesse Green, as his superior in command, was placed to work. That the cause of action accrued by reason of the said Jesse Green being placed in control of the crew in which the engineer, Zack McLendon, was in charge of the engine and by reason of his quarrelsome and dangerous character, while engaged about their work, he, the said McLendon, shot and killed Green to the damage of the plaintiff.

A special plea in bar to the action was filed setting up that at the time of the injury and death of the said Jesse Green inflicted at the hands of Zack McLendon, that the said Jesse Green and Zack McLendon were engaged in interstate commerce, and that the defendant, the common master, at the same time was so engaged in interstate commerce with the said two employees above named. To this plea a demurrer was interposed. The demurrer admits that at the time of the death of the said Jesse Green that he and McLendon together with the common master, the defendant herein, were engaged in interstate commerce.

It is a well settled principle of law that a demurrer interposed will search the whole record and attach to and overthrow the first pleadings in point of time of filing, found to be defective.

(A) Stevens on Pleadings, page 144, states the rule to be:

"That on demurrer, the court will consider the whole record, and give judgment for the party who, on the whole appears to be entitled to it. Thus, on demurrer to the replication if the court think the replication bad, but perceive a substantial fault in the plea, they will give judgment, not for the defendant, but the plaintiff, provided the declaration be good; but if the declaration be also bad in substance, then upon the same principle, judgment would be given for the defendant."

(B) In Vol. 6, Enc. Pleadings and Practice, page 326, the rule is thus stated: "The principle that, upon demurrer, the court will consider only the fact of the pleadings against which the demurrer is directed applies only to the consideration of the sufficiency of the pleading demurred to. While, therefore, the court is restricted to the particular pleadings for this purpose, the demurrer searches the whole record, and is taken as a demurrer to that pleading which contains the first fatal defect."

(C) In the case of McGavock v. Whitfield, 45 Miss. 452, Justice SIMRALL said: "It is a familiar rule in pleading that a demurrer brings into review the whole record, and should be applied to the first material defect in the pleadings."

(D) At whatever state of the pleadings a demurrer is interposed it reaches back in its effects through the whole record, and attaches ultimately to the first substantial defect in the pleading on whichever side it may have occurred. Miles v. Myers, Walker, 379; Wren v. Spann, 1 Howard, 115; Tucker v. Hart, 20 Miss. 458. See to the same effect, Haynes v. Covington, 9 Smedes & Marshall, 470; Shoults v. Kemp, 57 Miss. 218; Prairie Lodge v. Smith, 58 Miss. 301; State v. Washington Steam Fire Co., 76 Miss. 449.

(E) It is not too late now to extend the demurrer back to the declaration if the declaration is defective in substance and fails to state a cause of action. Y. & M. V. R. R. Co. v. Adams, 77 Miss. 780.

We contend that casual inspection of the record will convince this court that the learned court below erred in admitting the testimony on behalf of the plaintiff over the objection of the defendant, for the reason that the said evidence was incompetent and should not have been admitted, as appears in the record herein on pages, 88, 91, 92, 93, 101, 126 to 130, 136, and 142 to 144, and that the admitting of this testimony was very prejudicial to the rights of the appellant, in the minds of the jury.

The second error assigned herein complains of the action of the court below in excluding evidence offered by the appellant and excluded by the court, as appears of record on pages 104, 177, 179, 190, and 199. This evidence was competent, was offered for the purpose of showing the situation and relation of the parties to each other and the master, and should have been admitted. If admitted manifestly it would have changed the result of the trial.

We most earnestly contend that the most serious error committed by the learned court below was in the action of the court in overruling appellant's motion at the close of the appellee's testimony, to exclude all the evidence offered on behalf of the appellee, plaintiff in the court below, and to peremptorily charge the jury to return a verdict for the appellant for the following reasons, to-wit:

First: The record in this case shows that McLendon was a fellow servant with the deceased Green. Green had the authority to direct the movements of the train, and to that extent directed the movements of McLendon. McLendon's employment and the scope of the duties assigned him was to run the engine as directed by Green. At the time of the difficulty, McLendon had gotten down off the engine, and thereby abandoned his post of duty and the work he was employed to do and engaged in a personal affair of his own. The record further shows that the deceased Green was not engaged in any duties that he was employed to perform. That both had abandoned their master's business and had engaged in the settlement of a personal difficulty between themselves. As neither employee was acting in the course of his employment, with the view to the master's business, the peremptory instruction should have been given. Hinds v. Cole, 85 So. 199; Petroleum Iron Works v. Bailey, No. 21384, 86 So. 644, decided at this term of court.

Neither of the employees having acted in the course of his employment toward the furtherance of his master's business,...