Mississippi Power & Light Co. v. Smith, 30745

CourtMississippi Supreme Court
Writing for the CourtMcGowen, J.
Citation153 So. 376,169 Miss. 447
Docket Number30745
Decision Date12 March 1934
PartiesMISSISSIPPI POWER & LIGHT CO. et al. v. SMITH

153 So. 376

169 Miss. 447

MISSISSIPPI POWER & LIGHT CO. et al.
v.
SMITH

No. 30745

Supreme Court of Mississippi

March 12, 1934


Division A

1. MASTER AND SERVANT.

In action for death of one operating a cotton gin, whether belt on machinery was safe held for jury.

2. MASTER AND SERVANT.

In action for death of one operating cotton gin, whether deceased was performing duties under direction of superintendent in proper way held for jury.

[169 Miss. 448]

3. MASTER AND SERVANT.

Whether breaking of belt was proximate cause of death of one operating cotton gin held for jury.

4. MASTER AND SERVANT.

One operating cotton gin did not assume risk increased by employer's negligence (Code 1930, section 513).

5. TRIAL. Impeachment of witnesses who repudiated written statement made jury question.

Such witnesses repudiated written statements and testified that statements presented were not the ones they had made, but they were impeached or contradicted in this by a number of witnesses to written statements.

6. NEW TRIAL.

Court held not to have erred in denying new trial after judgment for plaintiff suing for death of husband while operating cotton gin.

7. TRIAL.

Weight of evidence and credibility of witnesses are for jury.

8. APPEAL AND ERROR.

Unless plaintiff's evidence was unreasonable or unbelievable judgment for plaintiff and refusing new trial should not be disturbed.

9. MASTER AND SERVANT.

Owner of property on date of injury was liable as master for servant's injury, notwithstanding existence of contract to sell property.

10. MASTER AND SERVANT. Contract for purchase of cotton gin, completed after employee's injury, would not be allowed to relate back to time before injury as regards original owner's liability as master.

Under such circumstances, the contract would not relate back, because the doctrine under which executory contracts to be completed in future may, when executed, be made to relate back to period anterior to that of contract, is never invoked for purpose of defeating collateral rights of third persons lawfully acquired.

11. MASTER AND SERVANT.

Superintendent of cotton gin held to operate gin as such at risk of master, after entering executory contract to purchase property, until such contract was fully executed.

[169 Miss. 449]

12. NEGLIGENCE.

In tort actions, where two or more parties' concurrent negligence bring about injury to third party, both are liable therefor, and suit may be brought either jointly or severally.

13. MASTER AND SERVANT.

Where both agent and master owe duty to servant, they may be held liable for breach thereof jointly or severally, though liability may spring from different rule of law.

14. MASTER AND SERVANT.

Liability of owner of cotton gin for death of servant held based on principle that master may not delegate duty to use reasonable care to furnish servant safe place for work, and, if he does so delegate it, he may not escape liability.

15. MASTER AND SERVANT.

Liability of superintendent of cotton gin for death of one operating gin was based on common-law duty independent of agency for master.

16. MASTER AND SERVANT.

It was duty of superintendent of cotton gin to exercise reasonable care to prevent injury to person operating gin.

17. DEATH.

Decree in proceeding for appointment of administratrix and contract with attorney on part of administratrix for prosecution of death action can have no effect on right of widow and children to institute and maintain suit (Code 1930, sections 510, 1628).

18. DEATH.

As between widow and children on one hand and administratrix or personal representative on the other, one who first brings death action has right to prosecute and maintain it to conclusion (Code 1930, section 510).

19. DEATH.

Where administratrix did not institute suit for death of decedent, she was not necessary party to death action brought by widow and children of intestate (Code 1930, section 510).

HON. J. Q. LANGSTON, Judge. [169 Miss. 450]

APPEAL from circuit court of Lawrence county, HON. J. Q. LANGSTON, Judge.

Action by Mrs. Anna Smith against the Mississippi Power & Light Company and another. From an adverse judgment, defendants appeal. Affirmed.

Affirmed.

C. E. Gibson, of Monticello, Brady, Dean & Hobbs, of Brookhaven, and Green, Green & Jackson, of Jackson, for appellants.

The occurrence of an accident raises no presumption of negligence. Negligence is an affirmative fact which must be established by a preponderance of the evidence.

Patton v. Texas & P. R. R. Co., 179 U.S. 658; Gunning v. Cooley, 281 U.S. 90, 74 L.Ed. 720; Ewing v. Good, 78 F. 442, 444; 2 Labatt on Master and Servant, sec. 833; Railroad Co. v. Heath, 48 S.E. 508; Fuller v. Ann Arbor R. Co., 104 N.W. 414; Grant v. Railroad Company, 133 N.Y. 657; Goranson v. Mfg. Co., 186 Mo. 300.

The belt is in evidence before this court and it shows that the staples therein were by reason of its soundness pulled out in part and torn through in another part. The places whereat the belt is frayed did not give away, and our position is that Smith's being caught in the machinery was that which broke the belt and not the belt breaking throw him in.

Natchez v. McClure, 33 So. 723; Buckley v. G. P. R. N. Co., N.Y. 550; Crowley v. Mills, 148 Mass. 230; Ash v. Verlinden Bros., 154 Penn. State 249; Cirriac v. Company, 151 Mass. 156; Railroad v. Trotter, 60 Miss. 442; Railroad v. Humphrey, 83 Miss. 739; Moore v. Johnson, 103 Va. 88; M. & O. R. v. Johnson, 141 So. 581; M. & O. Railroad v. Bryan, 132 So. 539; Flowers v. Springer, 120 So. 198, 152 Miss. 897; Newton v. Homochitto Lbr. Co., 138 So. 564, 162 Miss. 20.

The breaking of the belt was not the proximate cause of the injury.

R. R. Co. v. Cathey, 70 Miss. 337; Kress v. Markline, 117 Miss. 37, 77 So. 865. [169 Miss. 451]

The negligence must be the proximate cause of the injury; if it is a condition, responsibility does not follow.

Patton v. Railroad Co., 31 Miss. 156; Railroad Co. v. Trotter, 60 Miss. 442; Railroad v. Humphrey, 83 Miss. 739; Moore v. Johnson, 103 Va. 88; M. & O. R. v. Johnson, 141 So. 581, 163 Miss. 418; M. & O. Railroad v. Bryan, 159 Miss. 528; Flowers v. Springer, 120 So. 198, 152 Miss. 897; Newton v. Homochitto Lbr. Co., 138 So. 564, 162 Miss. 20; Columbus & G. Ry. Co. v. Buford, 116 So. 817, 150 Miss. 832; M. & O. R. Co. v. Bennett, 90 So. 113, 127 Miss. 413; McFadden v. Buckley, 53 So. 351, 98 Miss. 28; Fore v. A. & V. R. Co., 39 So. 493, 87 Miss. 211.

The occurrence was an accident that could not be foreseen.

Hagen v. Field, 51 N.Y.S. 72; Ross v. Walker, 21 A. 158; McKay v. Hand, 47 N.E. 105; Adasken v. Gilbert, 43 N.E. 199; O'Connor v. Rich, 49 Am. St. Rep. 463; Long v. Ry. Co., 52 N.W. 379; Raleigh case, 51 N.W. 351.

Smith being in absolute control could, had he so desired, stopped the machinery, replaced the belt, then pressed a button and no one would have possibly been hurt. Electing voluntarily the more dangerous method as that whereby he would do the work, when with equal facility he could have chosen another method which would not have resulted in injury, the master may not be made to suffer from the servant's wrongful election.

Natchez v. McLain, 33 So. 723; Dowell v. Vicksburg, etc., Co., 61 Miss. 519; Hatter v. Railroad, 69 Miss. 642, 13 So. 827; Cybur Lbr. Co. v. Rickart, 79 So. 235, 118 Miss. 401; Hinton Bros. Lbr. Co. v. Polk, 117 Miss. 300, 78 So. 179.

The evidence is not sufficient to support the verdict.

6 C. J. 551.

Courts are not such slaves to the forms of procedure as to surrender their own intelligence to an array of witnesses testifying to an impossibility. They are not required [169 Miss. 452] to give credence to a statement that would falsify well known laws of nature, though a cloud of witnesses swear it.

Sexton v. Metropolitan Ry. Co., 149 S.W. 21, 245 Mo. 254; St. Louis S.W. Ry. Co. v. Eldenwood, 123 Ark. 428, 185 S.W. 768; Radziemenski v. B. & O. R. Co., 283 Pa. 182, 128 A. 735; Szpyrka v. International Ry. Co., 210 N.Y.S. 553, 556, 213 A.D. 390; B. & O. R. Co. v. O'Neill, 186 F. 13, 108 C. C. A. 115.

There is no liability upon the Mississippi Power & Light Company, because there was no relation of master and servant.

39 C. J. 34; 1 Labatt on Master & Servant (2 Ed.), pages 46, 88, sec. 27; Hostel v. Brunswick, 37 S.E. 869; B. & O., etc. v. Ball, 40 N.E. 519; Hukill v. Maysville, etc., Co., 72. F. 742; Empire Trust Co. v. Egypt Ry. Co., 182 F. 107; Kirk v. Williamson & Pond Creek R. Co., 129 S.E. 922; Swice's Adm'r v. Maysville & B. S. R. Co., 116 Ky. 253, 75 S.W. 278; Axline v. R. Co., 138 F. 169; Epperson v. Refining Co., 22 F.2d (C. C. A. 8) 623; Breyman v. R. Co., 38 F. (C. C. A. 6) 211; East Line, etc. , Ry. Co. v. Culbertson, 72 Tex. 375, 10 S.W. 706, 3 L. R. A. 567, 13 Am. St. Rep. 805.

There was no privity of contract between Zeb Smith and Mississippi Power & Light Company.

Wilkinson v. Light, Heat & Water Co., 78 Miss. 389; Bank v. Phillips, 71 Miss. 54; George v. Soloman, 71 Miss. 171.

As at July 1st, there was a contract which admeasured the rights between Tynes and the power company, and when the property became Tynes' as at July 1st, therefore, during the interim the relationship of Tynes to the operation was uncertain, just as he testified, but when the deed was delivered, then he became the owner, and becoming such was the master of Smith in virtue of the prior contract of purchase, and there was no liability by [169 Miss. 453] reason of this contract upon the power company, because by reason thereof, upon the execution of the deed, Smith was prevented from ever becoming its employee.

Swice v. Maysville, etc., Co., 116 Ky. 253, 75 S.W. 287; McAlister v. C. & O. R. Co., 243 U.S. 310, 61 L.Ed. 741; Lee v. Southern Pacific Railroad Co., 116 Cal. 97, 47 P. 932, 38 L. R. A. 71, 58 Am. St. Rep. 140; Hunsaker...

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31 practice notes
  • Miss. Cent. R. Co. v. Smith, 31225
    • United States
    • Mississippi Supreme Court
    • April 30, 1934
    ...151 So. 720; Gillespie v. Doty, 135 So. 211, 160 Miss. 792; Y. & M. V. R. Co. v. Pittman, 153 So. 382; M. P. & L. Co. v. Smith, 153 So. 376; Woolworth Co. v. Wolking, 100 So. 3; L. & N. R. Co. v. Jones, 98 So. 230; M. & W. R. Co. v. Bennett, 90 So. 113; Davis v. Temple, 91 So. 689; N. O., e......
  • Killings v. Metropolitan Life Ins. Co, 33885
    • United States
    • Mississippi Supreme Court
    • January 2, 1940
    ...48 Miss. 609; Cox v. Tucker, 97 So. 721, 133 Miss. 378; Gillespie v. Doty, 135 So. 211, 160 Miss. 684; Miss. Power & Light Co. v. Smith, 153 So. 376, 169. Miss. 447; Shelton v. Underwood, 163 So. 826, 174 Miss. 169; Universal Truck Loading Co. v. Taylor, 172 So. 756, 178 Miss. 143. The cour......
  • Cox v. Dempsey, 32283
    • United States
    • United States State Supreme Court of Mississippi
    • January 11, 1937
    ...So. 669; Pan-American Petroleum Corp. v. Pate, 126 So. 480. Gulf Refining Co. v. Nations, 145 So. 327; Miss. Power & Light Co. v. Smith, 153 So. 376. The agent in charge of a chattel under such circumstances as Hemby was in charge of the appellant Cox's truck, Hemby's action in employing Tu......
  • fornea v. Goodyear Yellow Pine Co., 33004
    • United States
    • United States State Supreme Court of Mississippi
    • February 21, 1938
    ...and not constituting a bar to his cause of action sued on herein. Y. & M. V. R. R. Co. v. Decker, 116 So. 287; Miss. P. & L. v. Smith, 153 So. 376; Newton v. Homochitto Lbr. Co., 138 So. 565; Bacot v. Hazlehurst Lbr. Co., 23 So. 481; Supreme Lodge K. P. v. Beck, 181 U.S. 49, 45 L.Ed. 741; B......
  • Request a trial to view additional results
31 cases
  • Miss. Cent. R. Co. v. Smith, 31225
    • United States
    • Mississippi Supreme Court
    • April 30, 1934
    ...151 So. 720; Gillespie v. Doty, 135 So. 211, 160 Miss. 792; Y. & M. V. R. Co. v. Pittman, 153 So. 382; M. P. & L. Co. v. Smith, 153 So. 376; Woolworth Co. v. Wolking, 100 So. 3; L. & N. R. Co. v. Jones, 98 So. 230; M. & W. R. Co. v. Bennett, 90 So. 113; Davis v. Temple, 91 So. 689; N. O., e......
  • Killings v. Metropolitan Life Ins. Co, 33885
    • United States
    • Mississippi Supreme Court
    • January 2, 1940
    ...48 Miss. 609; Cox v. Tucker, 97 So. 721, 133 Miss. 378; Gillespie v. Doty, 135 So. 211, 160 Miss. 684; Miss. Power & Light Co. v. Smith, 153 So. 376, 169. Miss. 447; Shelton v. Underwood, 163 So. 826, 174 Miss. 169; Universal Truck Loading Co. v. Taylor, 172 So. 756, 178 Miss. 143. The cour......
  • Cox v. Dempsey, 32283
    • United States
    • United States State Supreme Court of Mississippi
    • January 11, 1937
    ...So. 669; Pan-American Petroleum Corp. v. Pate, 126 So. 480. Gulf Refining Co. v. Nations, 145 So. 327; Miss. Power & Light Co. v. Smith, 153 So. 376. The agent in charge of a chattel under such circumstances as Hemby was in charge of the appellant Cox's truck, Hemby's action in employing Tu......
  • fornea v. Goodyear Yellow Pine Co., 33004
    • United States
    • United States State Supreme Court of Mississippi
    • February 21, 1938
    ...and not constituting a bar to his cause of action sued on herein. Y. & M. V. R. R. Co. v. Decker, 116 So. 287; Miss. P. & L. v. Smith, 153 So. 376; Newton v. Homochitto Lbr. Co., 138 So. 565; Bacot v. Hazlehurst Lbr. Co., 23 So. 481; Supreme Lodge K. P. v. Beck, 181 U.S. 49, 45 L.Ed. 741; B......
  • Request a trial to view additional results

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