Lampton v. Atkins

• Decision Date: 10 July 1922
• Docket Number: 22313
• Citation: 129 Miss. 660,92 So. 638
• Court: Mississippi Supreme Court
• Parties: LAMPTON v. ATKINS

92 So. 638

129 Miss. 660

LAMPTON v. ATKINS

No. 22313

Supreme Court of Mississippi

July 10, 1922

MASTER AND SERVANT. Master's knowledge of defective appliance must be shown.

In order that the master may be held to have been negligent in furnishing the servant with an unsafe appliance, it must appear that the master knew, or by reasonable inspection thereof could have known, of the defect therein, and the burden of proving such actual or constructive knowledge on the part of the master is on the servant when attempting to recover damages for an injury sustained by him by reason of a defect in an appliance furnished by the master.

Holden and Ethridge, JJ., dissenting.

HON. C P. LONG, Judge.

APPEAL from circuit court of Tishomingo county, HON. C. P. LONG Judge.

Action by C. C. Atkins against the Tishomingo Gravel Company revived against Thad B. Lampton, receiver. From judgment for plaintiff, defendant appeals. Reversed and rendered.

Reversed.

Fulton Thompson and R. H. & J. H. Thompson, for appellant.

To the court's first inquiry as to the application to the case at bar or the decision in Hope v. Natchez, etc., Railroad Company, et al., 98 Miss. 823; s. c., 54 So. 369, we answer, the decision is, we feel assured, controlling, if it is not to be reversed. We cannot think it should be reversed because it is well supported by authority and its reasoning is sound. The last sentence of the opinion in the Hope case states its substance and is in these words "The law presumes that the master has discharged his duty to furnish the servant with reasonably safe tools and appliances, and except as provided by statute, and in cases wherein the doctrine of res ipsa loquitur applies this presumption is not overcome by mere proof of injury to the servant by reason of a defective appliance."

The presumption that a master has discharged his duty to furnish his servant with reasonably safe tools and appliances is applicable to the case at bar, and the presumption was not overcome by mere proof of injury to the servant by reason of a defective appliance (certainly not, if the defect be merely inferred) unless the case falls within one of the two exceptions mentioned in the opinion delivered by this court in the Hope case. These exceptions are: (a) Where a statute changes or prevents the application of a presumption. There is no such statute in this state and this ends the argument on that point. (b) Where the doctrine of res ipsa loquitur applies to the case.

Does the doctrine apply to the case at bar? As the court has made this inquiry the subject-matter of an independent question, we will pretermit its discussion until in due course we reach the court's last proposition.

Third. The court's second inquiry is in these words: "In order for the master to successfully defend against an injury to this servant caused by a defective appliance, shown to have been defective when furnished by the master to the servant, what must he show if anything, with reference to care in purchasing and furnishing of such appliance to the servants?"

Unless a plaintiff has proved at least a prima-facie case under the law applicable to his alleged cause of action, a defendant does not have to show or prove anything whatever in order to defend. This statement, we think, needs no argument in its support.

Fourth. Does the principle of res ipsa loquitur apply? To determine whether the principle applies, we should first get the facts of the case well in mind and determine what if anything, in this case, the doctrine can be claimed to prove. It must not be assumed because of the explosion that the fuse was defective and the master, therefore, guilty of negligence, because the fuse was made to be exploded; it was ignited by the plaintiff himself and the explosion was the result of the fuse having been ignited. The inquiry is whether the explosion occurred too soon after the fuse was ignited, and this in turn is based upon testimony necessarily uncertain; the estimate of a witness or witnesses of the lapse of past time, and that too of a very short time (less than three minutes) where attention was not directed to the passage of time before the explosion. We submit the doctrine of res ipsa loquitur never applies unless the thing which speaks for itself is admitted or proved beyond dispute or cavil.

The doctrine has a much narrower application between master and servant than between other litigants. 3 Bouvier's Law Dictionary. (Rawls' Third Revision), p. 2908, title, "Res Ipsa Loquitur."

The authorities cited by the attorneys for the appellant in the case of Alabama, etc., Ry. Co. v. Groome, beginning near bottom of page 203 in 97 Miss., show that the doctrine has no application to the case at bar. It is true that in the Groome case this court applied the doctrine to a case between master and servant, but in that case the defective instrument which caused the injury was in the exclusive possession and control of the master, and the servant had nothing to do with it.

Our conception is that the res ipsa loquitur rule is materially limited in cases between master and servant, because of undisputed law to the effect that the doctrine has no application where the defendant is not shown to have had the exclusive possession and control of the tool, appliance or thing which caused the injury suffered by the plaintiff. Wolfe v. Downey, 164 N.Y. 30; s. c., 51 L. R. A. 241; Actiesselskabet Ingrid v. Central, etc., Railroad Co. of New Jersey, 216 F. 72, 991; s. c., Lawyers Reports Annotated, 1916, B. p. 716, 722; 25 Corpus Juris, sec. 38, p. 205.

In the case at bar if the fuse was under the exclusive control of anybody it was under the control and management of the plaintiff, Atkins.

Boone & Wortham, for appellant.

It will be noted that the declaration in this case followed the correct principle of law by declaring the duty of appellant to appellee to be to use due diligence and reasonable care, and the declaration further admits the legal principle laid down in the Hope case that defendant knew it was dangerous, or with reasonable and proper inspection could have known that it was dangerous. In the Hope case, 98 Miss., at page 892, this language is used: "When a servant is injured by reason of a defect in a tool or appliance furnished him by the master one of the essential elements of negligence on the part of the master is knowledge, actual or constructive, of the existence of the defect in the tool or appliance. Consequently, the burden of showing such negligence is upon the servant." Bennett case, 111 Miss. 163; Richmond & D. R. Co. v. Elliott, 149 U.S. 266, 37 L.Ed. 732.

In the case of Penn. Co. v. Congdon, 38 Am. St. Rep. 257, the rule is stated this way: "In case the defect was latent and unknown either to the employer or the employee, and could not be discovered by evidence, then neither could be held to be in fault."

In 3 Labatt's Master and Servant (2 Ed.), sec. 1025, it is said: "A servant cannot recover for injuries caused by abnormally dangerous conditions unless he proves that the existence of those conditions was either actually known by the master or would have been known to him if he had exercised that degree of watchfulness which he was bound as a prudent man to exercise under the circumstances." Section 1058, in said Vol 3.

I do not know whether there was a defect in this fuse or not, but if there was, it evidently was one that could not be discovered by reasonably careful inspection.

W. J. Lamb, for appellee.

The first question propounded by the court is this: "What application, if any, has Hope v. Railroad Company, 98 Miss. 829, 54 So. 369, and other authorities along the same line, to that state of facts?" Now replying to the question propounded above, we submit that the principle contained in the case of Hope v. Railroad Company, supra, and such other authorities on the same line, have no bearing whatever on the case at bar. It is held by all authorities that persons using dangerous agencies, such as dynamite, are required to use the highest degree of care and caution to prevent injuries. Hamblin v. Gano, 76 So. 633; McTighe v. Johnson, 114 Miss. 862. The rule announced above in the two Mississippi cases are sustained by all authorities in text books and decisions of the court. Murray v. Drug Co., 100 Miss. 260; Edward v. Haynes-Walker Lumber Co., 113 Miss. 383; Sea Food Co. v. Alves, 117 Miss. 9; Railroad Co. v. McCaskel, 118 Miss. 629; St. Louis, I. M. & S. R. Co. v. Neely, 63 Ark. 636, 40 S.W. 130, 37 L. R. A. 616; United States in Fletcher v. Baltimore & Potomac Railroad Co., 168 U.S. 18, S.Ct. 35, 42 L.Ed. 411; Note to St. Louis, I. M. & S. Railroad Co. v. Jackson, (Ark.), in 31 L. R. A. (N. S.) 980; Railroad Co. v. Dees, 121 Miss. 438.

Now in view of the authorities cited above from this court, we respectfully submit that there was no assumption of risk on the part of the appellee in this case, and in any view of the case, the appellee was entitled to have the question of assumption of risks to be determined by the jury. We will now refer the court to other authorities, which we contend sustains our contention that there was no assumption of risks on the part of the appellee. 3 Labatt's Master & Servant (2 Ed.), sec. 1178; Hough v. T. & P. Railroad Co., 100 U.S. 213, 25 L.Ed. 612; Labatt, sec. 1189; Alton Line & Cement Co. v. Calvey, 47 Ill.App. 343; Rankel v. Buckstaff-Edwards Co., 138 Wis. 442, 20 L. R. A. (N. S.) 1180; Charron v. Union Carbide Co., 151 Mich. 687; Labatt, sec. 1186a.

In the same volume of Labatt, sec. 1187, the footnotes give a large number of decisions in which the doctrine now under discussion has been affirmed in relation to injuries caused by the abnormally dangerous qualities of the...