Long-Bell Lumber Sales Corporation v. Perritt

• Decision Date: 01 March 1937
• Docket Number: 32631
• Citation: 172 So. 747,178 Miss. 194
• Court: Mississippi Supreme Court
• Parties: LONG-BELL LUMBER SALES CORPORATION et al. v. PERRITT et al

172 So. 747

178 Miss. 194

LONG-BELL LUMBER SALES CORPORATION et al. v. PERRITT et al

No. 32631

Supreme Court of Mississippi

March 1, 1937

Division B

Suggestion Of Error Overruled April 12, 1937.

APPEAL from circuit court of Clarke county HON ARTHUR G. BUSBY, Judge.

Action by Mrs. Ethel Hollingsworth Perritt and others against the Long-Bell Lumber Sales Corporation and another. Judgment for the plaintiffs, and the named defendant appeals. Affirmed.

Affirmed.

Gilbert & Cameron, of Meridian, and J. L. Adams, of Quitman, for appellant.

There is no testimony in the record to show any duty of Lebbeus Smith to watch out for falling limbs or other dangers or that he knew of any such danger to Hinds Perritt, as he was at the time of the injury some thousand feet away, and besides, it is undisputed in the record that the limb which fell upon, injured and killed Hinds Perritt was broken off by Hinds Perritt and his partner in felling another tree.

There is no testimony in this record showing or tending to show that the rule, whatever the rule may have been, was the cause of the death of Hinds Perritt.

What killed this young man? A falling sweet gum limb in the open forest. What, caused the limb to fall? It was broken by the deceased in felling a tree. Would the limb have fallen if deceased hadn't broken it? The answer is obvious, no. If the limb hadn't fallen would deceased have been injured? No. Then the proximate cause of his death was the falling limb.

I. C. R. R. Co. v. Wright, 135 Miss. 435; Pietri v. L. & N. R. Co., 152 Miss. 185; Public Service Co. v. Watts, 168 Miss. 235.

It is axiomatic that every one is presumed to exercise due care for his own safety. This is the law of self preservation.

The rule was being observed by all the workmen, they said, and without the slightest harm. It wasn't the rule that broke the limb or caused it to fall. Neither did it diminish or increase the hazard of the limb. The method of work must be the proximate cause of the injury to entitle recovery.

Meridian Light & Ry. Co. v. Dennis, 100 So. 581; 39 C. J. 469, sec. 585.

It has long been settled in this state that the employer was not required to guard the sawyers against the hazards of their work, such as falling trees, limbs or other accidents in the woods, where the conditions change every minute.

Cybur Lbr. Co. v. Erkhart, 118 Miss. 401; City of Tupelo v. Payne, 168 So. 283.

The hazards of the occupation were temporary and transitory and the employer had the right to assume that the servant would took after the safety of the place.

Barron Motor Co. v. Bass, 167 Miss. 786; Austin v. M. & O. R. R., 134 Miss. 226.

Employees interpretation of the rule does not control, but reasonable inference from all language used.

Eastman Gardner Hardwood Co. v. Chatham, 168 Miss. 471.

Negligence renders the master liable, not danger, however great.

Y. & M. V. R. R. v. Hullam, 119 Miss. 229; Anderson Tully Co. v. Goodin, 174 Miss. 162; Sufferman v. Leach, 161 Miss. 853; Vehicle Woodstock Co. v. Bowles, 153 Miss. 346; 39 C. J. 709.

The court erred in admitting evidence as to insurance.

Finkbine Lbr. Co. v. Cunningham, 101 Miss, 292; Texas Co. v. Jackson, 174 Miss. 737; Avery v. Collins, 171 Miss. 636.

We respectfully submit that in view of the fact that no foreman of the appellant was present at the time and that the deceased was not ordered into any place of known danger by any such foreman that to authorize the jury to find that a rule was unreasonable, unnecessary and dangerous, whatever may have been the conduct or work of the servant at that particular time, left it to the jury to determine purely as an abstract proposition whether the mile was reasonable or unreasonable.

We submit that the instruction did not announce the law and was highly prejudicial to the appellants.

The verdict is grossly excessive.

M. V. B. Miller, of Meridian, and H. F. Case, of Quitman, for appellees.

Lebbeus Smith, Harris and Berry, whose joint experience in this line of work covered a half century, all woods foremen of appellant company at one time, admitted that a rule requiring woods sawyers to remain at a tree and continue to saw it after it pitched to fall was dangerous to the sawyers and was unnecessary and impractical. It was shown without dispute that the numerous sawmills in this section of our country had no such rule. In fact, this must be accepted as an established fact in this case that such a rule would be dangerous to the workmen and an unnecessary rule. This is one thing that all of the witnesses who were asked about it agreed on.

Where the master commands the servant to do the work, coupled with the warning that if he does not do it he will be discharged, obedience by the servant is not voluntary, it is compulsory, and the over-exertion causing the injury is compulsory over-exertion. A servant is not free when disobedience of his master means the loss of his job.

Goodyear Yellow Pine Co. v. Mitchell, 149 So. 792; Brown v. Coley, 152 So. 63; Cybur Lbr. Co. v. Erkhart, 118 Miss. 401, 79 So. 238; C. & R. Lbr. Co. v. Crane, 99 So. 753; Benton v. Finkbine Lbr. Co., 79 So. 346.

If it had not been for the rule that required Hinds Perritt to remain at the tree a while and continue to saw it after it pitched to fall, as Manley expressed it, he would have left there before the falling black oak tree had time to release that big sweet gum limb and drop it on him to his hurt.

Should not the company have anticipated the injury, such as happened in the case at bar, would likely happen as a result of the rule. Lebbeus Smith, the foreman of the master, said that green limbs in trees were hard to see. Appellees' witnesses and appellants witnesses that were asked about it all said that if a man wasn't permitted to get away from the stumps of those falling trees he would get killed by falling or flying limbs.

Teche Lines v. Bateman, 130 So. 161; Norton v. Standard Oil Co., 171 So. 691.

We submit that the case of McLemore & McArthur v. Rogers, 152 So. 883, and the authorities cited by it to sustain it, and the reasoning of these cases, are more analogous to the case at bar than any found in counsel's brief.

Russell v. Williams, 151 So. 373; Owen v. Suncrest Lbr. Co., 117 S.E. 705; Bradford v. English, 130 S. E, 705; Wilson v. Suncrest Lbr. Co., 118 S.E. 797; Erwin v. Missouri & Kansas Tel. Co., 158 So. 922.

There was a safe method that appellants could have pursued in the case at bar. That safe method was to permit Hinds Perritt and its other woods sawyers to leave the stump of a falling tree, the place that counsel speaks of in his brief as a "death trap", when the judgment of these experienced men was that they should leave the tree to avoid injury.

Fletcher v. Ludington Lbr. Co., 76 So. 592.

The court did not err in admitting evidence complained of.

G. M. & N. R. R. Co. v. Graham, 117 So. 883; 26 Cyc. 971, par. 5, and pages 1424, 1425, par. M.; Avery v, Collins, 171 Miss. 636; Cunningham v. Finkbine Lbr. Co., 101 Miss. 292, 57 So. 916; Pan American Petroleum Co. v. Pate, 126 So. 482; Miss. Utilities Co. v. Pearce, 124 So. 165; Galtney v. Woods, 115 So. 110.

Counsel asked and obtained eighteen instructions which announce the law for him we submit much more favorably than they were entitled to have it; announced. To justify a reversal an instruction of appellee would have to announce some principle in conflict with appellant's instruction.

The verdict is not excessive.

Ponders v. Day, 118 So. 299, 151 Miss. 436; G. & S. I. R. Co. v. Saucier, 104 So. 180, 139 Miss. 497; Caver v. Eggerton, 127 So. 727, 157 Miss. 88; Oliver Bus Lines v. Skaggs, 164 So. 12; Superior Oil Co. v. Richmond, 159 So. 850, 172 Miss. 407.

Argued orally by V. W. Gilbert, for appellant, and by M. V. B. Miller and H. F. Case, for appellee.

OPINION

Anderson, J.

Appellees, Mrs. Ethel Hollingsworth Perritt and her two minor children, brought this action in the circuit court of Clarke county against appellant, Long-Bell Lumber Sales Corporation, and its foreman, Lebbeus Smith, to recover damages for the death of Hinds Perritt, the husband and father of appellees, caused by the alleged negligence of the lumber company. The trial resulted in a judgment in favor of the wife and children in the sum of $ 15,000, from which judgment the lumber company prosecutes this appeal.

The questions in the case are: (1) Whether the lumber company was entitled to a directed verdict; (2) whether the court erred in admitting certain evidence; (3) whether the court erred in giving one of the instructions for the plaintiffs; and (4) whether the verdict is excessive.

The lumber company was engaged in the manufacture and sale of lumber. It had a plant at Quitman and one at Crandall in Clarke county, and a logging railroad connecting the two plants. It owned the standing timber which was being cut and manufactured into lumber. Hinds Perritt, the deceased, and Kim Perritt were members of its timber cutting crew, and worked together; the crew worked in pairs. The Perritts felled...