Mississippi River Fuel Corp. v. Senn

• Decision Date: 02 November 1931
• Docket Number: 186
• Citation: 43 S.W.2d 255,184 Ark. 554
• Parties: MISSISSIPPI RIVER FUEL CORPORATION v. SENN
• Court: Arkansas Supreme Court

43 S.W.2d 255

184 Ark. 554

MISSISSIPPI RIVER FUEL CORPORATION v. SENN

No. 186

Supreme Court of Arkansas

November 2, 1931

Appeal from Drew Circuit Court; Pat Henry, Judge; affirmed.

Judgment affirmed.

J G. Williamson, Lamar Williamson, and Adrian Williamson, for appellant.

W F. NORRELL and R. W. WILSON, for appellee.

MEHAFFY J. SMITH, J., dissenting.

OPINION

MEHAFFY, J.

This action was brought by the appellee against the appellant, Mississippi River Fuel Corporation, and R. R. Hudgins, to recover damages for a personal injury alleged to have been caused by the combined and concurring carelessness and negligence of the defendant, Mississippi River Fuel Corporation, and R. R. Hudgins.

The appellee and R. R. Hudgins were employees of the appellant, Mississippi River Fuel Corporation, and were moving and carrying by means of hand sticks a large and heavy meter from a truck to the place on the appellant's pipe line where it was to be installed.

It is alleged that R. R. Hudgins, an employee of appellant, carelessly and negligently, and without notice to appellee, caught hold of the end of the hand stick opposite where appellee was working, and suddenly and carelessly and negligently, and without warning, jerked and raised the opposite end of the hand stick to that held by appellee, and thereby threw practically all the weight of the heavy meter, and placed upon him the burden of lifting or holding up more than 1,000 pounds; that appellee was strained in his entire body, and otherwise injured as described in his complaint.

He alleges that the injuries were permanent, causing him great mental anguish and physical pain, and that he was compelled to undergo a major operation; that he was wholly incapacitated to perform any physical labor, and will be totally and permanently incapacitated to perform physical labor and earn a livelihood. He asked damages for his injuries in the sum of $ 15,500.

The appellant, without entering its appearance for any other purpose, filed motion to dismiss, alleging that the court had no jurisdiction. This motion was overruled by the court and a guardian was appointed for R. R. Hudgins, who was a minor, and answer was filed denying the material allegations in the complaint.

The appellant then filed a second motion to dismiss on the ground that the court had no jurisdiction. This motion was overruled, and appellant then filed a demurrer, alleging as grounds for demurrer, that the court had no jurisdiction over the person of the defendant, and that there is a defect of parties defendant, in that the defendant, R. R. Hudgins, is improperly joined as a party defendant. This demurrer was overruled by the court. The appellant saved proper exceptions to the overruling of each of its motions and the demurrer.

The appellant then filed answer specifically denying each material allegation in the complaint and alleging that if appellee was injured, the same was caused by physical infirmity or disease, for which appellant was not responsible. It alleged in its answer that, if appellee was injured as alleged in his complaint, said injury was caused by appellee's own negligence.

It also alleged that, if appellee was injured as stated in his complaint, his injury was caused by a risk necessarily incident to his employment and which was assumed by him.

The appellant owned a gas conduit pipe line extending from the gas fields of Louisiana across the State of Arkansas to St. Louis, Missouri. Its main line passed through Drew County, Arkansas. From a point six or seven miles west of Monticello, a branch line was constructed to Monticello.

The appellee was 27 years of age and had been employed in this work for two or three weeks. The appellant, at the time of the injury complained of, was installing two gas meters near the western corporate limits of Monticello. The meters had been brought to the place by truck and placed on the ground about 30 feet from the point where they were to be installed.

The meters were to be put on a platform about 24 inches above the ground. In moving the meters from the place where they had been put on the ground to the platform, a crew of nine men, including the foreman, was engaged. The meter had a short extension of pipe four inches in diameter and about eight inches long sticking out of each end of the meter with a collar or flange where it would be connected with the gas line. Six men carried the meter to the platform by placing an iron crowbar under each of these pipes, one man lifting at each end of the crowbar, and one man lifting at the end of the extension pipe.

The appellee had hold of one end of the crowbar, and Virgil White had hold of the other end of the crowbar. The foreman, A. B. Willey, was on the platform, assisting in putting the meter on the platform.

When the crew undertook to put the meter on the platform, some of them called for help, and Ralph Hudgins, who is charged with the negligence complained of, took hold of the end of the crowbar held by White, and opposite to the end held by appellee. When Hudgins caught hold of the end of the crowbar, he lifted it something like three inches higher than the opposite end, which was held by the appellee. Appellee claims that when this was done practically the entire weight of the meter was thrown on him; that the walls of his stomach burst his appendix, and that he was ruptured. He estimates the weight of the meter at from 1,000 to 1,500 pounds.

None of the persons with appellee knew that he was injured in any way. The injury was alleged to have occurred on Thursday, and he worked Friday and Saturday; but he alleges that he turned hot, cold and blind, but he made no complaint at the time. He did not do anything for about 30 minutes; his work on Friday and Saturday was light. Prior to the injury he had complained from time to time of a pain in his lower right side and on Sunday afternoon he complained, and he did not work Monday. On Monday afternoon he became seriously ill, and the doctor said he had appendicitis, and he grew steadily worse until he was taken to Pine Bluff on Wednesday the 26th, where he was operated on for appendicitis, according to Dr. Clark's evidence. Dr. Simmons and Dr. Duckworth said he was operated on for hernia.

Appellee did not notify any of the officers, agents, or employees of appellant that he claimed to have been injured while working, but he testified that some days before he filed suit he wrote to some official of appellant, and on May 10th filed suit in the Drew Circuit Court.

While the appellee alleged concurrent negligence of Hudgins and appellant, the verdict and judgment is based on the alleged negligence of Hudgins, and the judgment against appellant is for the negligence of its servant, Hudgins alone. The jury returned a verdict in favor of Hudgins, and a verdict against the appellant for $ 10,500. The case is here on appeal by the Mississippi River Fuel Corporation.

Appellant's first contention is that the verdict in favor of R. R. Hudgins exonerates appellant, Mississippi River Fuel Corporation, from liability. It is its contention that a verdict in favor of the servant is inconsistent with a verdict against the master for the servant's negligence.

We agree with appellant that there is no negligence shown except the negligence of the servant, Hudgins. The verdict of the jury in favor of the servant, Hudgins, did not mean that Hudgins was not guilty of negligence. Appellant cites numerous authorities to support its contention that a verdict in favor of the servant exonerates the master in cases where the master is sought to be held liable solely on the ground of the negligence of the servant.

In one of the cases relied on the court said: "Where a recovery is sought in an action against a principal and his agent based upon the act or omission of the agent which the principal did not direct and in which he did not participate and for which his responsibility is simply that cast upon him by law by reason of his relationship to the agent, a judgment in favor of and exonerating the agent generally ex proprio vigore relieves the principal of responsibility and may be availed of by the principal for that purpose." Patterson v. Risher, 143 Ark. 376, 221 S.W. 468.

In another case cited and relied on by the appellant, and which appellant says is one of the leading American cases on the subject, the court said: "The general rule undoubtedly is that, where one has received an actionable injury at the hands of two or more persons acting in concert, or acting independently of each other, if their acts unite in causing a single injury, all of the wrongdoers, however numerous, are severally liable to him for the full amount of damages occasioned by such injury, and he may enforce the liability in an action against them all jointly, or in any one of them severally, or against any number of them less than the whole. While the wrong committed is the joint wrong of the several parties participating therein, it is also, in contemplation of law, the several wrong of each of the participants. On this principle at common law, a jury in actions ex delicto against several persons, contrary to the rule in actions ex contractu, were permitted to find against one or more of the defendants and in favor of the others. The rule with regard to actions ex delicto remains the same under the Code, and the practice now permits the jury in an action for tort against several defendants to return a verdict against so many of them as the proofs show are guilty of the wrong charged, and in favor of the others. As it is the peculiar province of the jury to determine the guilt or innocence of the several defendants, a verdict finding in favor of some and against others, even though...