Kennedy v. Little

• Decision Date: 12 May 1941
• Docket Number: 34539.
• Citation: 191 Miss. 73,2 So.2d 163
• Court: Mississippi Supreme Court
• Parties: KENNEDY v. LITTLE.

2 So.2d 163

191 Miss. 73

KENNEDY v. LITTLE.

No. 34539.

Supreme Court of Mississippi

May 12, 1941

Gilbert & Cameron, of Meridian, for appellant.

Williamson & Riddell, of Meridian, for appellee.

SMITH Chief Justice.

The appellee was employed by the appellant to fire the boilers of the engines in his manufacturing plant, and this appeal is from a judgment for damages from a personal injury caused him, as the jury found, by negligence of the appellant's foreman.

The only assignments of error argued by counsel for the appellant are that the court below erred (1) in not granting his request for a directed verdict; and (2) in not setting the verdict aside on the ground that it is against the great weight of the evidence.

According to the appellee, he was injured while obeying an order of the appellant's foreman, which the foreman had the right to give. If given negligence appears in this order, or rather the jury had the right to so find. The appellant says the order was given. The foreman denied giving it. No other person heard or was in position to hear the order, if given. The appellant's contention is that the appellee's testimony is unworthy of belief-that he is not a credible witness and therefore his testimony should not have been submitted to the jury. It would serve no good purpose to set forth the several reasons advanced by counsel for the appellant for not believing the appellee's testimony, one of which is that a conflict appears therein on an immaterial matter, for one of the most fundamental and elementary rules of judicial procedure is that the credibility of witnesses in a case tried to a jury is for its determination. If an examination of the many cases in this court so holding be desired, they will be found collated in the notes to 64 C.J., sec. 340, page 348 et seq., and in appropriate sections of the Mississippi Digest dealing with the subject of Trial, to here cite which would be supererogatory.

According to the stenographer's transcript and a special bill of objections: "On the trial of the above cause upon examination of two of the prospective jurors, Albert Phillips and J. S. Eggerton, counsel for the plaintiff asked these two jurors if they or either of them or any of their close relatives or kin people were connected in any way with any liability insurance company, any insurance company writing liability insurance to which the defendant then and there objected and which was by the Court sustained. Whereupon the defendant moved the Court for a mistrial because of said question of the counsel which motion was, by the Court, overruled." This ruling of the court is assigned for error, but no argument relative thereto appears in the brief of either counsel. Consequently, the assignment was waived, Rayl v. Thurman, 156 Miss. 8, 125 So. 912; Mitchell v. Finley, 161 Miss. 527, 137 So. 330; however, the ruling was challenged at the conference of the judges and therefore will be here considered. The reason why counsel for the appellant did not argue it appears in Yazoo City v. Loggins, 145 Miss. 793, 110 So. 833; Lee County Gin Company v. Middlebrooks, 161 Miss. 422, 137 So. 108; Avery v. Collins, 171 Miss. 636, 157 So. 695, 158 So. 552; which put at rest, or should so do, the right of a litigant to propound in good faith similar questions to jurors on their voir dire examination "in order that the right to challenge jurors peremptorily, or for cause, may be intelligently exercised". In those cases the court permitted the questions, while here they were not permitted, and the good faith of counsel in asking them is not challenged. The ruling in the Loggins, Middlebrooks and Collins cases, supra, is in accord with that in practically all of our sister states, as will appear from an examination of the note to Stehouwer v. Lewis, 74 A.L.R. at page 860.

Affirmed.

McGEHEE Justice (dissenting).

The plaintiff testified that during the early morning, when he sustained the injury complained of, he was called by the appellant's foreman, and requested to clean some ashes from around a tail-pipe in the combustion chamber of a boiler which he was employed to fire, in order that the foreman might go back into this chamber and unchoke this pipe, which had become stopped up on the night before, resulting in this boiler being then shut down. The pipe was about three inches in diameter, and was located, as he says, about three and a half feet straight forward in front of the door opening into the combustion chamber. There was no other testimony which would indicate that it was more than five or six feet from the door.

The usual custom which had been followed in removing the ashes from the combustion chamber was to use a rake fashioned without prongs, like a hoe, with a handle at least seven feet in length, while standing outside on the ground, with which to assemble the ashes in a pile, a shovel then being used to remove them from the combustion chamber, and into a container on the outside, to be carted away. On the morning of the injury, and after the boiler had been shut down since the night before, the foreman had gone into the combustion chamber to examine the pipe. When he came out for the purpose of going to the office to obtain an electric light and cord, with a view to going back into the combustion chamber to remedy the pipe, the plaintiff says that he asked the foreman, "What's the matter, Mr. Jeff? say, 'It's too hot in there for you?' He say, 'No,' say 'There's a lot of ashes in there got to come out.' He say, 'Go in there and get them out up to the tail pipe so I can see what's the matter with it."'

In the meantime the plaintiff had, while standing on the outside removed some of the ashes, which he says had been wet with a hose, but that some of them were still hot; that in compliance with the order of the foreman he went into the combustion chamber through the door, which was approximately eighteen by twenty inches in diameter, while the foreman was gone for the electric light and cord; and that thereupon the hot ashes fell down from both ways, and severely burned his hands,...