Moss v. Gulf Compress Co.

• Decision Date: 07 January 1913
• Docket Number: 2,371.
• Parties: MOSS v. GULF COMPRESS CO.
• Court: U.S. Court of Appeals — Fifth Circuit

202 F. 657

MOSS v. GULF COMPRESS CO.

No. 2,371.

United States Court of Appeals, Fifth Circuit.

January 7, 1913

[Copyrighted Material Omitted]

Thomas Gaines Fewell, of Meridian, Miss. (C. B. Cameron, of Meridian, Miss., on the brief), for plaintiff in error.

Marcellus Green, of Jackson, Miss. (G. Q. Hall, G. W. Green, and Marcellus Green, Jr., all of Jackson, Miss., on the brief) for defendant in error.

Before PARDEE and SHELBY, Circuit Judges, and GRUBB, District Judge.

GRUBB District Judge.

This is a writ of error to review a judgment for the defendant below and the defendant in error in this court on a verdict directed by the court below at the conclusion of the plaintiff's testimony.

There is submitted, also, a motion to dismiss or affirm. The motion to dismiss is based upon the ground that the petition to obtain the writ of error, the order allowing it, the writ itself, the assignment of errors, the bond, and the citation are all entitled as of the Circuit Court of the United States, when, in fact, the Circuit Court had been abolished before the writ of error was sued out and allowed by the trial court. The original printed record in the cause comes to this court under the hand and seal of the clerk of the District Court of the proper district, and properly authenticates these proceedings as having occurred in the District Court, and this controls the recital in the captions of the various proceedings mentioned.

The defendant in error supports its motion to affirm upon the ground that, as is alleged, the bill of exceptions contained in the record and purporting to be signed by the district judge is a false one, and presents the certificate of the judge in support of its contention. It is sufficient answer to this contention that it is conceded that the district judge signed the bill of exceptions which is contained in the record, and that we cannot look beyond the record upon the question of its verity.

The motion to dismiss or affirm is denied.

Coming to the merits: The plaintiff in error, who was the plaintiff in the court below, sued the defendant in error for damages for personal injuries alleged to have been received by him while in the employment of the defendant, and while engaged in dismantling for it a compress at Meridian, Miss., on July 28, 1908. The declaration is contained in three counts, but the first only was relied upon by the plaintiff for recovery. The defendant had intrusted the management of the work of dismantling the compress to one of its agents, who was called a traveling engineer, named M. W. Wallace, and who had sole charge of the work for the defendant; the defendant being represented by no other officer or agent of superior grade to Wallace on the premises. All the work was under Wallace's exclusive direction and control. At the time of the accident to the plaintiff, Wallace, with the assistance of two negroes, was engaged in passing a coiled rope through a winch. Wallace was on the other side of the winch from where the rope was coiled, handling the rope after it had passed through the winch. The two negroes were on the opposite side of the winch from Wallace, uncoiling the rope so it could be fed into the winch. Wallace was able to handle the rope after it passed through the winch, faster than the two negroes could uncoil it and feed it into the winch. Wallace was anxious to finish the job quickly, and the negroes could not keep up with his work. It was in this situation that he directed the plaintiff to get in behind the winch and between it and where the negroes were uncoiling the rope, to guide the rope so it could be handled by the negroes on their side fast enough to keep up with Wallace's pace on the other side. The plaintiff obeyed the instruction of Wallace and took his position between the place where the negroes were uncoiling the rope and the winch, for the purpose of guiding the rope as it was uncoiled. It was while in this position that the plaintiff was injured. There were revolving cogs in the winch to the side of plaintiff as he stood guiding the rope. Wallace was still able to handle the rope faster than the negroes could uncoil it, and the slack thus being taken out of the rope on the side of the winch on which the plaintiff was standing, the taut rope struck plaintiff's body and threw him off his balance. In his endeavor to recover his balance his hand was caught in the cogs, causing the injury complained of.

This was the substance of plaintiff's own testimony, and he was the only witness examined. The defendant offered no testimony, but relied upon the insufficiency of plaintiff's evidence to establish his case. The court below was of the opinion that the plaintiff's evidence failed, as a matter of law, to show any negligence on the part of the defendant, and directed the verdict. The only question presented by the writ of error is the correctness of the court's action in so directing the verdict.

The record does not disclose any evidence tending to show that the defendant was guilty of negligence in failing to provide or maintain a reasonably safe place for plaintiff to perform his work. The general character of the work in which the plaintiff was engaged when injured was the dismantling of a compress. The increased hazard due to the general character of the work of demolition was a risk assumed by plaintiff, though it does not appear that his injury was due to any such hazard. Nor is there any evidence that the winch was either defective or unsuitable for the purpose for which it was being used at the time of the accident. Nor does it appear that the cogs in which plaintiff's hand was caught should have been better protected. Nor is there anything in the record to show that the location of the winch, with reference to its surroundings, was in any way improper, or that the plaintiff's fellow servants were incompetent. If liability on the part of the defendant exists, it must be predicated upon the breach of some other duty than those mentioned.

The plaintiff relies also upon the alleged negligence of Wallace, who was in charge of the work of dismantling the compress, asserting that he was a vice principal of the defendant and not a fellow servant of the plaintiff. To entitle the plaintiff to recover on this theory, it was essential that the evidence tend to show that Wallace was a vice principal, and that, as such, he was guilty of negligence which was the cause of plaintiff's injury.

There is no statute in Mississippi changing the fellow-servant rule as it exists at common law, except as applies to railroad employes. The attempt of the Mississippi Legislature to enlarge the favored class of employes so as to include the employes of all corporations proved abortive by reason of the decision of the Supreme Court of Mississippi that the act, so intended, was unconstitutional, because unjustly discriminating against the class of corporation employers. Chapter 87, Laws 1896; chapter 66, Laws 1898; Ballard v. Oil Co., 81 Miss. 507, 34 So. 533, 62 L.R.A. 407, 95 Am.St.Rep. 476.

In the absence of statutory regulation, the fellow-servant rule and its interpretation becomes a matter of general law, as to which the federal courts apply their own rules of decision; and the status of Wallace as to being a vice principal or a mere fellow servant is to be determined in this case by the decisions of the federal courts rather than those of Mississippi. B. & O.R.R. Co. v. Baugh, 149 U.S. 368, 13 Sup.Ct. 914, 37 L.Ed. 772.

According to the federal decisions, it is well settled that neither mere superiority in rank nor the right to exercise control by the delinquent servant over the injured servant will avail to constitute the delinquent servant a vice principal of the master. It is necessary that it be shown that he is intrusted by the master with departmental control, as defined by the courts.

In the case of B. & O.R.R. Co. v. Baugh, supra, the court said:

'Where the master is a corporation, there can be no negligence on the part of the master except it also be that of some agent or servant, for a corporation only acts through agents. The directors are the managing agents; their negligence must be adjudged the negligence of the corporation, although they are simply agents. So, when they place the entire management of the corporation in the hands of a general superintendent, such general superintendent, though himself only an agent, is almost universally recognized as the representative of the corporation-- the master-- and his negligence as that of the master. And it is only carrying the same principle a little further and with reasonable application, when it is held that, if the business of the master and employer becomes so vast and diversified that it naturally separates itself into departments of service, the individuals placed by him in charge of those separate branches and departments of service, and given entire and absolute control therein, are properly considered, with respect to employes under them, vice principals-- representatives of the master-- as fully and as completely as if the entire business of the master was by him placed under the charge of one superintendent.'

In the case of Northern Pacific R.R. Co. v. Peterson, 162 U.S. 346, 16 Sup.Ct. 843, 40 L.Ed. 994, the court stated the rule as follows:

'The rule is that in order to form an exception to the general law of nonliability the person whose neglect caused the injury must be 'one who was clothed with the control and management of a distinct department, and not a mere separate piece of work in one of the branches of service in a department.' This distinction is a plain one, and not subject to any great embarrassment in determining the fact in any particular case.

'When the

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