Mayor and Bd. of Aldermen of City of Vicksburg v. Young, 89-CA-0738

• Citation: 616 So.2d 883
• Decision Date: 10 December 1992
• Docket Number: No. 89-CA-0738,89-CA-0738
• Parties: The MAYOR AND BOARD OF ALDERMEN OF the CITY OF VICKSBURG, Mississippi, v. Tony YOUNG and Rhonda Young.
• Court: Mississippi Supreme Court

Page 883

616 So.2d 883

The MAYOR AND BOARD OF ALDERMEN OF the CITY OF VICKSBURG Mississippi, v. Tony YOUNG and Rhonda Young.

No. 89-CA-0738.

Supreme Court of Mississippi.

Dec. 10, 1992.

Motion to Clarify Mandate Denied March 18, 1993.

Bobby D. Robinson, Vicksburg, for appellant.

Paul Kelly Loyacono, Travis T. Vance, Jr., Vicksburg, for appellee.

Before HAWKINS, P.J., and PITTMAN and BANKS, JJ.

PITTMAN, Justice, for the Court:

I.

Tony and Rhonda Young instituted this action against the City of Vicksburg seeking damages for an on-the-job injury received while Tony Young was employed with the Vicksburg Department of Parks and Recreation. Tony Young asked for $2,000,000.00 in damages for his past and future medical bills, past and future lost wages, and his past and future pain and The City of Vicksburg, electing not to carry worker's compensation coverage, answered the plaintiffs' suit alleging that Tony Young was the proximate cause of his injuries in that he was contributorily negligent and assumed the risk of his own behavior. The City asked that the complaint be dismissed at the plaintiffs' cost.

suffering. Rhonda Young sought $200,000.00 in damages for her loss of the "benefits and pleasures" of her marriage to the injured Young.

On May 30, 1989, this matter came for trial in the Circuit Court of Warren County. More than two days later, the jury returned a verdict in favor of Tony Young awarding $185,528.00 in damages. The City of Vicksburg appeals this award and assigns the following errors:

I. DID THE TRIAL COURT ERR IN REFUSING TO GRANT THE DEFENDANT'S REQUESTED INSTRUCTIONS D-10 AND D-17 REGARDING THE FELLOW SERVANT DEFENSE?

II. DID THE TRIAL COURT ERR IN REFUSING TO GRANT THE DEFENDANT'S REQUESTED INSTRUCTION D-19 REGARDING THE DUTY OF THE PLAINTIFF TO EXERCISE REASONABLE CARE FOR HIS SAFETY?

III. DID THE TRIAL COURT ERR IN ITS TREATMENT OF CONTRIBUTORY NEGLIGENCE IN THIS CASE IN THAT IT ALLOWED THE PLAINTIFF A PEREMPTORY INSTRUCTION ON THE ISSUE OF CONTRIBUTORY NEGLIGENCE AND REFUSED TO ALLOW DEFENDANT'S INSTRUCTION D-11?

IV. DID THE TRIAL COURT ERR IN GRANTING THE PLAINTIFF'S REQUESTED INSTRUCTION P-6 THAT THE PLAINTIFF DID NOT ASSUME THE RISK AND HIS RECOVERY SHOULD NOT BE BARRED FOR THIS REASON?

V. DID THE TRIAL COURT ERR IN REFUSING DEFENDANT'S REQUESTED INSTRUCTION D-13 REGARDING THE ISSUE OF THE METHOD USED TO ACCOMPLISH THE ASSIGNED TASK AND WHETHER THE METHOD WAS DANGEROUS AND COMPLEX?

II.

On July 24, 1987, Tony Young was a member of the City of Vicksburg Parks and Recreation grass-cutting unit. That day, his crew was called upon to move a set of metal bleachers from the baseball field at Halls Ferry Park to the bicycle track several hundred yards away. The foreman, Earl Cosey, decided the bleachers could be pulled to the track if they were chained to a pick-up truck. When this procedure was employed, however, the truck was unable to gain traction due to the weight of the metal framed bleachers. Foreman Cosey, believing that more weight was needed on the rear part of the truck, told Tony Young and Perry Smith to position themselves on the back of the city's Ford pick-up. The two men ultimately ended up on the vehicle's rear bumper. With the truck gaining the necessary traction, the crew began to tow the stadium bleachers with foreman Cosey at the wheel of the truck. As Cosey reached speeds estimated between 10-25 miles per hour, it became apparent the bleachers were going to collide with a metal road sign and tree located between the baseball field and the BMX track. When this fact was made known to Earl Cosey, he suddenly applied the brakes to the pick-up causing the bleachers "in tow" to collide with the rear portion of the truck pinning the right leg of Tony Young. Young was taken to a local hospital where he received an immobilizing brace for his injured knee.

After several weeks with no improvement, Dr. Daniel Dare, an orthopedic surgeon, performed arthoscopic surgery on the right knee of Tony Young. Dr. Dare found that the cartilage surrounding the knee had been twisted from the joint surface exposing the underlying bone and gristle. The condition was not repairable so Dr. Dare removed the torn portions of the cartilage and prescribed physical therapy for Tony Young. Young did not improve as hoped.

In December of 1987, Tony Young instituted this action to recover for the injuries received. On May 30, 1989, the cause came

for trial and the jury ultimately returned a verdict in favor of Tony Young for $185,528.00. The jury awarded Rhonda Young no money in her consortium action. This appeal followed.

III.

DID THE COURT ERR IN REFUSING TO GRANT THE DEFENDANT'S REQUESTED INSTRUCTIONS D-10 AND D-17 REGARDING THE FELLOW SERVANT DEFENSE?

Jury instructions D-10 and D-17 would have instructed the jury on the principle (actually a defense to liability) known as the fellow-servant rule. Under this rule,

an employer is absolved from liability to one engaged in his employment for injuries incurred or suffered solely as the result of the negligence, carelessness, or misconduct of others who are in the service of the employer and who are engaged in the same common or general employment as the injured employee.

53 AmJur2d, Master and Servant, Sec. 295 at 327 (1970). The rule does not apply, however, when the party causing injury is not a fellow laborer but is a supervisor or foreman performing managerial acts. The question under this first assignment of error, therefore, is whether Earl Cosey was acting as a supervisor or fellow-servant at the time of Tony Young's injury.

In Strange v. Mercury Marine, Inc., 194 So.2d 208 (Miss.1967), a part-time supervisor and a marine mechanic were directed to test a watercraft for repair purposes. While the mechanic was positioning himself to ride in the boat, the part-time supervisor negligently raced the motor of the boat causing the mechanic to lose his footing and injure himself. In an action to recover damages against the employer, this Court addressed the applicability of the fellow-servant rule as follows:

The fellow-servant doctrine has only been abolished in Mississippi as to railroads etc. (Mississippi Code of 1942 Annotated section 7806) and as to those covered by the Workman's Compensation Act when the employer fails to secure payment of compensation (Mississippi Code of 1942 Annotated section 6998-05). Neither of these statutes exclude the defense of fellow-servant doctrine in this particular instance.

Even conceding for the sake of argument that Johnny Franklin might at some times have supervisory power, that is not sufficient to establish liability here. As we stated in Harper v. Public Service Corporation of Mississippi, 170 Miss. 39, 154 So. 266 (1934), the doctrine of dual capacity is recognized in this State, and, under that the master is liable only for those acts of the foreman or superior agent which are official managerial acts--those done by him in the actual exercise of his supervisory authority, and not for those which pertain to the duties of a workman.

The master is not liable for acts done by the superior agent when engaged in the manual or operative work of a laborer--those acts of labor or fellow-service which belong to the details of the work and not to those duties which are non-delegable by the master. In this case, the act of [the part-time supervisor] was as a workman or fellow-servant and not in the exercise of supervisory or other official authority as foreman.

Strange, 194 So.2d at 210-11.

A second decision addressing the potential liability of an employer based upon the acts of his superior agent or foreman is Harper v. Public Service Corporation of Mississippi, 170 Miss. 39, 154 So. 266 (1934). In Harper, the plaintiff and several other workers were testing and making repairs to a high-pressure gas pipeline. Plaintiff, a laborer, was working at one end of the pipe while his foreman, working on the gas main, was at the other. Without warning, the foreman negligently turned the valve on the gas main while plaintiff's face was near the open end of the pipe. The escaping gas released with such force that plaintiff received injuries to his face and eyes. In an action to recover damages against his employer, this Court discussed the application of the fellow-servant defense as follows The proximate cause of the injury was the negligent act of the foreman in turning the lever or wrench at his end of the line, when he knew or ought to have known that appellant at the other end was probably not expecting this to be done at that time. The parties were only a short distance from each other; each was in the unobstructed view of the other; each could see what the other was doing. If therefore, the negligent act done by the foreman had been done by an ordinary laborer, there would clearly be no liability, as to the master, under the fellow-servant rule. The question is whether the fact that the negligent act was that of the foreman is sufficient to carry liability against the master.

....

Since the negligent act which was the proximate cause of the injury was an act of the foreman done then and there as a workman or fellow laborer, and not in the actual exercise of his official authority as foreman, it was obligatory upon the trial judge, under the settled rule in this state, to grant the peremptory charge, which he did.

Harper, 170 Miss. at 42-44, 154 So. at 266-267.

This Court cannot say that the lower court was in error in holding that the fellow-servant rule was inapplicable. There was ample evidence to support the conclusion that Earl Cosey was acting in a supervisory position when he ordered Young and Smith onto the rear bumper of the pickup...