Leopard v. Beaver Duck Mills

• Decision Date: 01 August 1921
• Docket Number: 10697.
• Parties: LEOPARD v. BEAVER DUCK MILLS.
• Court: South Carolina Supreme Court

108 S.E. 190

117 S.C. 122

LEOPARD v. BEAVER DUCK MILLS.

No. 10697.

Supreme Court of South Carolina

August 1, 1921

Appeal from Common Pleas Circuit Court of Greenville County; George E. Prince, Judge.

Action by T. L. Leopard against Beaver Duck Mills. From a judgment on a directed verdict for defendant, plaintiff appeals. Reversed.

Cothran J., dissenting.

Martin & Henry, of Greenville, for appellant.

Haynsworth & Haynsworth, of Greenville, for respondent.

FRASER J.

The plaintiff's testimony tends to show: The plaintiff was employed as a card grinder in the defendant mill. While he was employed as an expert card grinder, he was new in the mill, and was directed to another card grinder, Atkins, for assignment to work. Atkins gave the plaintiff a screen, and told him to set it into the machine. The setting in of the screen ordinarily took about an hour. The screen was very near a very heavy cylinder, covered with teeth to catch the cotton. If the cylinder was still, the work was safe, but if the machinery should be set in motion, it became exceedingly dangerous. When the plaintiff had been working about 15 or 20 minutes, the other card grinder started the cylinder in motion. It caught the plaintiff's hand, and produced the injury complained of. The trial judge directed a verdict for the defendant. From the judgment entered on a directed verdict this appeal is taken.

There are several exceptions, but one question only need be considered. It is the duty of the master to provide the servant a reasonable safe place to work. There is testimony tending to show that the place at which the plaintiff was put to work was safe enough when he started to work, but rendered very dangerous by one in charge for the master, and this change was made without notice to the plaintiff and caused the injury. Hunter v. Alderman, 89 S.C. 506, 71 S.E 1084:

" The following rule, stated in Brabham v. Tel. Co., 71 S.C. 53, 50 S.E. 716, has been followed in many cases: 'In determining who are fellow servants, the test or rule in this state is not whether the servants are of different grade, rank, or authority, one of them having power to control and direct the services of another, but the test is in the character of the act being performed by the offending servant, whether it was the performance of some duty which the master owed to the injured servant, the performance of which duty the master intrusted to the offending servant.' "

It is true that Atkins said he asked the plaintiff to listen for defects, and the plaintiff, instead of doing so, put his hand in the dangerous place. The jury should have been allowed to settle that matter. The exception that raises this question is sustained.

The other questions refer to errors peculiar to the first trial and need not be considered.

The judgment is reversed.

GARY, C.J., and WATTS, J., concur.

COTHRAN J. (dissenting).

I think the facts and the law of this case thoroughly justify the action of Judge Prince in directing a verdict in favor of the defendant upon the grounds stated by him.

The facts are these: The defendant owns and operates a cotton mill at Greenville. Its principal officers were Moody, superintendent, Meredith, boss carder, and two section hands, E. H. Atkins and his brother, Bowen Atkins. The duty of E. H. Atkins as a section hand was to direct the hands in his section in the operation of the cards. Along with this duty was that of card grinder, a manual service. On the occasion of the injury it became necessary to overhaul certain of the card machines, the process being to take them apart, grind the cards, and set the machines up again. Atkins had authority to call to his assistance any of the hands in his section. On Saturday before the accident on Monday, the plaintiff applied to Meredith, the boss carder for work, representing himself as an experienced card grinder. He was employed, and on Monday reported for work. Meredith took him to Atkins, and instructed him to work under the direction of Atkins. A certain card had been dismantled and ground and was to be set back up again. Atkins and Leopard then proceeded to do this work, and worked upon it for about two hours. They set the "licker-in" in its socket, and then Atkins told Leopard to set the screen at the other end of the machine. To do this Leopard had to put his hand very close to the cylinder upon which the card teeth were fixed. While he was so engaged, Atkins, without notice to Leopard, turned the cylinder, and the plaintiff's hand was caught between the cylinder and the screen, causing the injury for which he asked damages.

It is clear from the foregoing statement, taken most favorably to the plaintiff: (1) That Atkins was a superior servant to Leopard, with the right to direct his movements; (2) that Atkins and Leopard were engaged in the common undertaking of dismantling, grinding, and setting up the card machines; (3) that Atkins directed Leopard to set the screen; (4) that while Leopard was so engaged Atkins turned the cylinder which caught and injured Leopard's hand; (5) that the injury resulted from the negligence of Atkins in not giving Leopard notice of his intention to turn the cylinder.

After the close of all the testimony, in fact after the motion had been refused and the jury had wrestled with the case for some hours, the circuit judge directed a verdict in favor of the defendant, upon the ground that Atkins and Leopard were fellow servants, and the defendant could not be held responsible for the negligence of Atkins.

The pivotal question in the case, therefore, is whether or not under these circumstances Atkins and Leopard were fellow servants; an affirmative solution of the question absolving the defendant from the legal consequences of the negligent act of Atkins, and justifying the direction of a verdict for the defendant by the circuit judge.

Among the many theories in reference to the relation of fellow servants, this court has adopted with emphasis and reiteration this: The question whether a delinquent servant was or was not a vice principal, as regards the injured person, is ultimately determinable by the character of the act which by his negligence caused the injury, regardless of the fact that the delinquent servant was of a higher rank, grade, or authority, and had the power to control and direct the services of the other; that the superior servant rule, so far as that relation may compel the conclusion of vice principalship, does not obtain. This is the rule in the federal courts, Supreme and subordinate, Alabama, Arkansas, California, Colorado, Connecticut, Delaware, Florida, Georgia, Idaho, Illinois, Indiana, Iowa, Kansas, Kentucky, Louisiana, Maine, Massachusetts, Michigan, Minnesota, Missouri, Montana, Nebraska, New Hampshire, New Jersey, New Mexico, New York, North Carolina, North Dakota, Oregon, Pennsylvania, Rhode Island, South Dakota, Texas, Utah, Vermont, Virginia, Washington, West Virginia, Wisconsin. 4 Labatt (2d Ed.) p. 4413.

The principle is thus expressed in Brabham v. Postal Co., 71 S.C. 53, 50 S.E. 716:

"In determining who are fellow servants, the test or rule in this state is not whether the servants are of different grade, rank or authority, one of them having power to control and direct the services of another, but the test is the character of the act being performed by the offending servant, whether it was the performance of some duty the master owed to the injured servant, the performance of which duty the master had intrusted to the offending servant."

Similarly in B. & O. R. Co. v. Baugh, 149 U.S. 368, 13 S.Ct. 914, 37 L.Ed. 772:

"The question turns rather on the character of the act than on the relations of the employees to each other. If the act is one done in the discharge of some positive duty of the master to the servant, then negligence in the act is the negligence of the master; but if it be not one in the discharge of such positive duty, then there should be some personal wrong on the part of the employer before he is held liable therefor."

And in Justice v. Pennsylvania Co., 130 Ind. 321, 30 N.E. 303:

"On the other hand, if, at the time of the alleged negligence, the servant was not engaged in the performance of a duty which the master owed to his servants, but was in the discharge of a duty which the servant acting owed to the master, he will be held to be a fellow servant with others engaged in the same common business, and the master will not be liable for any injury inflicted upon such fellow servant by reason of his negligence."

To the same effect are Sofield v. Guggenheim Smelting Co., 64 N. J. Law, 605, 46 A. 711, 50 L. R. A. 417; McElligott v. Randolph, 61 Conn. 157, 22 A. 1094, 29 Am. St. Rep. 181; Curley v. Hoff, 62 N. J. Law, 758, 42 A. 731; Flike v. Railroad Co., 53 N.Y. 549, 13 Am. Rep. 545; Fuller v. Jewett, 80 N.Y. 46, 36 Am. Rep. 575; Schroeder v. Railroad Co., 103 Mich. 213, 61 N.W. 663, 29 L. R. A. 321, 50 Am. St. Rep. 354; Gilmore v. American Tube & Stamping Co., 79 Conn. 498, 66 A. 4; Railroad Co. v. Barker, 169 Ind. 670, 83 N.E. 369, 17 L. R. A. (N. S.) 542; Robertson v. Chicago & E. R. Co., 146 Ind. 486, 45 N.E. 655; Pasco v. Minneapolis Steel & M. Co., 105 Minn. 132, 117 N.W. 479, 18 L. R. A. (N. S.) 153; Knutter v. N.Y. & N. J. Tel. Co., 67 N. J. Law, 646, 52 A. 565, 58 L. R. A. 808; Railroad Co. v. Peterson, 162 U.S. 346, 16 S.Ct. 843, 40 L.Ed. 994.

The rule laid down in Brabham v. Postal Co. has been reaffirmed in the following cases: Martin v. Royster Guano Co., 72 S.C. 237, 51 S.E. 680; Pagan v. So Ry. Co., 78 S.C. 413, 59 S.E. 32, 13 Ann. Cas. 1105; James v. Mfg. Co., 80 S.C. 232, 61 S.E. 391; Goodman v. Tel. Co., 87 S.C. 449, 69 S.E. 1089; Hunter v. Alderman, 89 S.C. 502, 71 S.E. 1082; Gibbes v. Phosp. Co....