McCarty v. Mitchell

• Citation: 169 Miss. 82,151 So. 567
• Decision Date: 01 January 1934
• Docket Number: 30742
• Court: United States State Supreme Court of Mississippi
• Parties: MCCARTY et al. v. MITCHELL

151 So. 567

169 Miss. 82

MCCARTY et al. v. MITCHELL

No. 30742

Supreme Court of Mississippi

January 1, 1934

Division A

Suggestion Of Error Overruled February 12, 1934.

APPEAL from circuit court of Hinds county HON. W. H. POTTER, Judge.

Action by Lee Mitchell against W. B. McCarty and others. From a judgment for plaintiff, defendants appeal. Reversed and rendered.

Reversed, and judgment here for appellants.

Butler & Snow, of Jackson, for appellants.

The rule is that, on an appeal involving an order granting a new trial, in considering the same, this court will go only to the record of the first trial, and if no error appears therein, will reverse the judgment on the second trial reinstate the former judgment, and enter judgment thereon for the appellants, in whose favor the first verdict was rendered.

Frizell v. White, 27 Miss. 198; Vanderburg v. Campbell, 64 Miss. 89; DeArmond v. Fine, 111 Miss. 737.

The right of recovery, based upon the theory that the master, has kept in his employ an unsafe and dangerous servant, with knowledge thereof, is predicated upon substantially the same doctrine which obligates the master to furnish the servant with a reasonably safe place in which to work and with reasonably safe tools and appliances with which to perform his work.

18 R. C. L. 720; 48 L. R. A. 369; 3 Labatt's Master & Servant (2d) sec. 1079; 39 C. J. 527; Hedgwood v. Newman Lbr. Co., 132 Miss. 487; Waterman Lbr. Co. v. Miles, 135 Miss. 146; Edward Hines Lbr. Co. v. Dickinson, 155 Miss. 674; Hooks v. Mills, 101 Miss. 91.

Although plaintiff might be able to show that the negro laborer, Paul Walker, was a dangerous employee, and although plaintiff might get around the remaining obstacles in his way of recovery, it was necessary before he was entitled to recover against the defendants for injuries inflicted upon him by his fellow servant, that the plaintiff show that when he made the assault upon him, the negro, Paul Walker, was acting within the scope of his employment and with the view to the furtherance of his master's business.

Hines, Agent, v. Cole, 123 Miss. 254; Petroleum Iron Works v. Bailey, 124 Miss. 11; Hines, General Agent, v. Green, 125 Miss. 476; Great Sou. Lbr. Co. v. May, 138 Miss. 27.

Refusal to grant request for peremptory instruction was error.

The proof shows that Mr. Mitchell was the superior servant in charge of defendants' warehouse. That the negro, Paul Walker, who committed the assault on him was one of the negro laborers in Mr. Mitchell's department and under his supervision and control, being the inferior servant. In this case the injury was occasioned by the wilful act of the inferior servant in assaulting the superior servant. In such a case the inferior servant is the fellow servant of the superior servant, and the fellow servant rule applies to injuries received by the superior through the negligence or act of the inferior servant.

39 C. J. 593; 18 R. C. L. 756; 23 L. R. A. (N. S.) 301; Hines, Agent, v. Cole, 123 Miss. 254; Hines, Agent, v. Green, 125 Miss. 476; Southern Pacific v. Hetzer, 135 F. 272, 1 L. R. A. (N. S.) 288; Ingram-Day Lbr. Co. v. Joh, 107 Miss. 43; Petroleum Iron. Works v. Bailey, 124 Miss. 11; Great Southern Lbr. Co. v. May, 138 Miss. 27.

Ross R. Barnett, P. Z. Jones, and Chalmers Potter, all of Jackson, for appellee.

It is the duty of the court in its instruction to present every issue involved in the case and if an instruction ignores such an issue, or the evidence thereon, the instruction is erroneous.

14 R. C. L. 793; Western Union Telegraph Co. v. Merrit (Fla.), 46 So. 1024, 1033; Whaley v. Sloss-Sheffield Steel & Iron Co. (Ala.), 51 So. 419, 423; U. S. F. & G. v. Charles (Ala.), 31 So. 558, 559; Mills Co. v. Strong, 23 F. 876; Ray v. Brannan, 72 So. 16, 196 Ala. 113; Sims v. Martin, 126 S.E. 872, 33 Ga. A. 486; Southern Surety Co. v. Calverly, 143 N.E. 626, 195 Ind. 247; Merchants National Bank v. Maiden, etc., Co., 125. N.E. 384, 234 Mass. 161; Stink v. R. R. Co. (W. Va.), 89 S.E. 280; Heitman v. Kaltenback & Stephens, 112 A. 306, 95 N. J. L. 118.

The trial court can grant a new trial for errors even if acquiesced in by plaintiff.

Y. & M. V. R. R. v. Wade, 162 Miss. 699; Browning v. Hoffman (W. Va.), 103 S.E. 484.

It is to be borne in mind by the court that the entire sequence of the events leading to the vicious assault and the vicious assault itself was one unbroken chain and that nowhere along the line of these events was there a deviation for even the smallest fraction of a time.

Houston v. Oppenheim, 145 So. 339; Richbergor v. American Express Co., 18 So. 922; Western Union Telegraph Co. v. Stacey, 139 So. 604; Rivers v. Y. & M. V. R. R. Co., 43 So. 471; Indianola Cotton Oil Co. v. Crowley, 83 So. 409; American Railway Express Co. v. Wright, 91 So. 342; Alden Mills v. Pendergraft, 115 So. 713; Gill v. Dantzler Lbr. Co., 121 So. 153.

We take it from a review of the evidence in this case that with the verdict of the jury in favor of the plaintiff, there is no doubt that the jury was amply justified in finding that Walker was a mean, dangerous, vicious negro and that this fact had been brought home to the defendants and that with knowledge of this fact, they retained Walker in their employment. This being true, the defendants were guilty of negligence.

Hines v. Green, 125 Miss. 476, 87 So. 649; Barmore v. Vicksburg, Shreveport and Pacific R. R. Co., 70 L. R. A. 627.

If the act which the servant was engaged in at the time of the injury was one which, if continued until its completion, would have furthered the master's business and was within the scope of the servant's employment, the master would be liable.

Gassenheimer v. Western Railway of Alabama, 175 Ala. 319, 57 So. 718, 40 L. R. A. (N. S.) 998; Case v. Rulsebush, 122 Ala. 212, 26 So. 155.

If the master is liable because of the implied authority to enforce obedience to his orders where the superior assaults the inferior, we most respectfully submit that the authority to command given to the superior by the master carries with it the corollary duty of the inferior to obey the command by the superior and when the command is given and because of the command the assault is committed, we most respectfully submit that the assault is committed at a time when the inferior is engaged in the scope of his employment and with a view to the master's business.

Indianola Oil Co. v. Crowley, 121. Miss. 263; Richberger case, 18 So. 922.

Any error committed was ratified by appellant and he is now estopped to complain. The defendant in the court below, appellant herein, sought and obtained two instructions on the precise points here under controversy.

Y. & M. V. R. H. Co. v. Wade, 162 Miss. 699, 139 So. 403; Edwards v. Cash, 156 Miss. 507; Illinois Central Railroad Co. v. Handy, 108 Miss. 421; Liverpool & Globe Ins. Co. v. Van Os, 63 Miss. 431; Wilson v. Zook, 69 Miss. 694.

Argued orally by C. B. Snow, for appellant.

OPINION

Smith, C. J.

This is an appeal from a judgment for the appellee for damages sustained by him because of a personal injury alleged to have been caused by him by the negligence of the appellants. The case was tried twice. On the first trial judgment was rendered for the appellants, but was set aside by the court below; on the second trial, a judgment was rendered for the appellee. The record brings under review the setting aside of the first judgment. The reason assigned by the trial judge for setting aside the judgment was that he had erred in granting and refusing instructions to the jury. It will not be necessary for us to consider that question, for the verdict of the jury was in accord with what it would have been had the court granted, as it should have done, appellants' request for a directed verdict, from which it follows that the jury reached the right result.

The appellee was an employee of the appellants, and the wrong alleged to have been done him was an assault made on him by another employee of the appellants, who was a fellow servant of the appellee. The law of that relation applies here, the case not coming within the statutes abolishing the fellow-servant rule in some instances. In order for the appellee to recover, it must appear: (1) That the appellants employed, or retained in their service, the servant who committed the assault with knowledge, or its equivalent, that he did not possess the qualifications, mental, moral, and physical, which would enable him to perform his duties without exposing his fellow servants to greater danger than his work would necessarily entail; and (2) that the assault was committed under such circumstances as to make the appellants, because of the character of the servant who committed it and the knowledge of the appellants thereof, responsible therefor.

We will assume, for the purpose of the argument, that the evidence meets the first of these requirements and will state the case only in so far as it bears on the second.

The appellants were wholesale and retail merchants, conducting a number of chain stores. They operated a warehouse in connection with their business from which merchandise was...