Lancaster v. Lancaster

• Citation: 213 Miss. 536,57 So.2d 302
• Decision Date: 03 March 1952
• Docket Number: No. 38191,38191
• Parties: LANCASTER et al. v. LANCASTER.
• Court: United States State Supreme Court of Mississippi

Page 302

57 So.2d 302

213 Miss. 536

LANCASTER et al. v. LANCASTER.

No. 38191.

Supreme Court of Mississippi.

March 3, 1952.

Stevens & Canada, and Watkins & Eager, all of Jackson, Thos. J. Tubb, West Point, for appellants.

Cunningham & Cunningham, Booneville, for appellee.

ALEXANDER, Justice.

This is an appeal from a judgment for personal injuries suffered by appellee. The essential facts are as follows: J. B. Michael & Company, Inc., hereafter referred to as Michael, being under contract with the State Highway Commission to construct a link of a public highway in Monroe County, sublet the contract for the watering of the sodding placed upon the shoulders of the highway to Bob Lancaster who employed his son, the appellee, to perform this work. Such work was undertaken by the use of a sprinkling machine consisting of a water tank mounted upon a specially designed motor truck whence the water was pumped by a gasoline motor through a hose with a sprinkler head. It is asserted that an efficient operation of the device required that it be operated near the driver's left margin of the paved highway so as thoroughly to spread water upon the adjacent shoulder. To this end the truck proceeded in an extra low gear and at a retarded speed. Such was the manner of operation at the time of the injury. While undertaking this work at night in alleged conformity with the requirements of the State Highway Commission, plaintiff was demonstrating to a fellow worker the proper manner of using the hose. The truck was being driven slowly eastward by a third employee.

A third party, Mrs. Majors, had entered upon the link of road, and after proceeding east to a barricade, turned about and proceeded west in retracing her course. She was accompanied by her husband. Upon approaching the watering truck, which was equipped with two headlights, a row of lights along the top of the driver's cab, clearance lights along its sides and two lighted flares, Mrs. Majors undertook to pass the truck on the north side by driving over onto the shoulder. Plaintiff had his back turned, and the noise created by the motors and pump prevented his hearing the approach. Mrs. Majors testified that she had been travelling at about twenty miles an hour but slowed down to about fifteen miles as she reached the truck. Witnesses for appellee stated that the car 'zoomed by'. While so undertaking to pass the truck her car struck the employee, Archie Lancaster, knocking him a considerable distance down the embankment and inflicting serious crippling injuries. At the moment appellee was, as stated above, showing a helper how to use the sprinkler. Appellee did not see the Majors car approaching. After striking appellee the car traveled, before being brought to a stop, a distance variously estimated up to 145 feet.

Suit was brought against Mr. and Mrs. Majors, Michael and Lancaster. Nonsuit was taken as to Mr. Majors. There was a verdict and judgment in favor of Mrs. Majors and against Michael and Bob Lancaster. Appeal is taken by the last two defendants. There is no cross-appeal and the verdict acquitting Mrs. Majors is not here involved.

Before considering the case upon its merits we must notice an assigned error involving an alleged disclosure of liability insurance coverage. During a cross-examination of the brother of the plainiff by counsel for Mrs. Majors, the following colloquy ensued:

'Q. And you say the first thing you knew about the car was when the car came by the water truck and your truck, struck your brother and then went a hundred thirty feet down the shoulder? A. The first I saw it was going to hit my brother.

'Q. And it ran past you 145 feet down there? A. That's what I said.

'Q. When did you measure that? A. I didn't measure it.

'Q. You weren't interested in how far the car went, you were interested in your brother. A. Yes, but next day the Insurance Company measured--

'Q. Who measured it? A. I don't know.

'Q. You were just guessing then? A. No, wasn't guessing, well it was in the neighborhood of 100 to 145 feet.

'Q. You didn't measure it yourself that night or the next day? A. I was there when they measured it.

'Q. Who measured it? A. Insurance adjustors.

'Q. Who was he? A. I don't recall.

'Q. What was he doing out there measuring?

'Mr. Eager: We object to that.

'The Court: Sustained.'

The considerations tending to support this assignment include the fact that there were three defendants who as to each other were adversary parties; that the intimation as to the existence of liability insurance is poisonous to an otherwise impartial mind regardless of whether such coverage exists as a fact or how the suggestion may arise; and that the disclosure was emphasized by repetition. On the other hand, it is contended that the statement by the witness was voluntary and not responsive to the inquiry; that it was elicited by a defendant who was engaged in a common defensive cause with appellants; that it would be unreasonable to allow a defendant, or one of several, to inject such prejudice whereby a plaintiff's case may be undermined without contributing fault; that the objection and motion for a mistrial were not promptly made; and that, even if the statement conveyed the idea that an insurance company was interested, it is not to be assumed that such coverage protected any particular defendant.

There are several considerations which rendered this testimony hazardous. By calling upon the witness to repeat the identity of the party measuring distances, there was supplied and emphasis which in the initial voluntary statement was lacking. The jury, by acquitting the defendant whose counsel elicited the answers, could well have considered that she would not thus encourage a verdict against her and that there remained a subtle intimation that she was not so protected. Such is the reasoning of the appellants onto whose shoulders the entire responsibility was allegedly shifted, since the jury, for reasons of their own, acquitted the defendant whose act caused the plaintiff grievous injury.

Such references when brought out by plaintiff's counsel are almost invariably ground for reversal. It is impossible to catalog all similar references and assign each to a definite category. The rule may not be uniformly packaged for general use under any designated label. Each case presents its own problem. Both the facts and the factors are unique. After repeated analysis of the situation presented here we have concluded that this error is not reversible. Compare Petermann v. Gary, 210 Miss. 438, 49 So.2d 828.

Point is made that this action by the son, Archie Lancaster, a minor, cannot be maintained against his father. Appellants cite Hewlett v. George, 68 Miss. 703, 9 So. 885, 13 L.R.A. 682. This case recognizes the rule of incapacity as based upon maintenance of the integrity and peace of the family relationship, but concedes that full emancipation undermines the rule where such reason therefor fails. In the instant case the son was twenty years of age and became of age ten days after his injury. He was married and lived apart from his father. At the time of the accident a child was expected, which was born thereafter. Under these circumstances, there was a complete emancipation and the action was therefore maintainable. It is immaterial that his father assumed gratuitously a substantial amount of medical and hospital expenses. The authorities on this point are set out in brief for appellee. Compare also Deposit Guaranty Bank & Trust Co., Gdn. v. Nelson, Miss., 54 So.2d 476.

We now examine the liability of Michael, which issue is presented by the refusal of the trial court to grant a requested peremptory instruction in its favor. This defendant was under contract with the State Highway Commission to construct a link of highway in Monroe County. This work had been completed except for the watering of the sodding upon the shoulders and embankment. This work was sublet by Michael to Bob Lancaster. In view of the necessity for the completion of such detail, Michael had placed adequate warning signs at the entrance onto this link of road and at other proper points indicating that the road was still under construction and that there was danger in its use. It was supposedly closed to through traffic, but required to be left open to local traffic.

At the outset it should be pointed out that, regardless of the adequacy of warning signs, any absence or insufficiency thereof was wholly unrelated causally to the plaintiff's injury. Mrs. Majors had seen the signs and was completely aware of the situation. There was no defect alleged or shown with respect to the work Michael was required to do. Although upon complaint of the subcontractor Michael had promised 'to take care of traffic,' such promise is relevant more to reveal some necessity therefor than to charge it with a duty to forbid it altogether in the face of his contract to keep the road open at least to local traffic. So that as far as its duty to construct the highway as such is concerned there is no evidence of any breach thereof causally contributing to the appellee's injury.

The only plausible theory under which Michael's conduct could be left open as a factual issue is that there remained a duty to protect the servants of the independent contractor against unreasonable risks. It retained no control over the means and methods whereby Bob Lancaster was to prosecute his work. Indeed the subcontractor testified that Michael did not supervise or control him and that he was his own boss using his own methods. It is to be stressed that this case does not involve an injury caused to a third person. The exceptions to the complete responsibility of an independent contractor find no place here since the injury was suffered by a servant of the independent contractor. It has often been announced that even if the work is inherently dangerous, the contractee does not remain liable for injuries caused to a ...