Mullican v. Meridian Light & Ry. Co

• Decision Date: 08 March 1920
• Docket Number: 20917
• Citation: 121 Miss. 806,83 So. 816
• Parties: MULLICAN ET AL. v. MERIDIAN LIGHT & RY. CO
• Court: Mississippi Supreme Court

83 So. 816

121 Miss. 806

MULLICAN ET AL. v. MERIDIAN LIGHT & RY. CO

No. 20917

Supreme Court of Mississippi

March 8, 1920

March 1920

1 PLEADING. Declaration to be construed against pleader.

A declaration is to be construed most strongly against the pleader, and the character of a contract set out as a part of it cannot be altered by any allegations or conclusions.

2 NEGLIGENCE. Light company held not liable for death of customer's employee caused by failure of lights.

Where a company contracted merely to furnish electrical energy for power to the operator of a linter washing and drying factory it was not liable for the death of an employee in such factory, who, when the lights went out on account of a failure of power, fell into a vat of boiling chemicals, there being no duty on the power company toward the employee either as the agent of his employer or otherwise.

3 PLEADING. Plea in bar setting up discharge in bankruptcy and conconcluding to county a joinder of issue if valid at all.

In an action for the death of a servant against his employer and a light and power company whose negligence caused the death where defendant employer, set up his discharge in bankruptcy by plea in both concluding to the country, such plea was insufficient in law and form, and could have been stricken out or answered either by demurrer or replication and under the circumstance should have been considered as a joinder of issue, if valid at all for any purpose, and motion for final judgment on it should not have been sustained.

HON. R. W. HEIDELBERG, Judge.

APPEAL from the circuit court of Lauderdale county, HON. R. W. HEIDELBERG, Judge.

Suit by J. W. Mullican and others against the Meridian Light & Railway Company and V. L. Crawford. From a judgment for defendant, plaintiffs appeal.

The facts are fully stated in the opinion of the court.

Judgment affirmed in part, reversed and remanded in part.

R. H. Thompson, of counsel for appellants.

The only feature of the brief in behalf of the Meridian Light & Railway Company to which we deem proper to make extended reply is the one relating to the proximate cause of the injury and death of Mullican.

The use of old, worn, inadequate and defective machinery by the Light & Railway Company to light Crawford's factory was the cause of the lights going out and the old, worn, inadequate and defective machinery was negligently used by that company with full knowledge of all the circumstances of the case and the company was charged with knowledge of the danger in which Mullican would be placed if the lights in the factory were permitted to be extinguished. The company cannot escape liability which naturally resulted from its negligence by claiming, as is done for it, that Mullican should have remained motionless in the factory until the lights were renewed, or until daylight the next morning. The proximate cause is by no means always the last intervening cause. Where the negligence of one person naturally causes or can reasonably be apprehended to cause action by another who is injured, the negligent act of the first party does not cease to be the proximate cause of the injury because the party injured did that which he reasonably would be expected to do as a consequence of the negligent act which caused him to do what he did.

If a man shoots at another, missing him, but so frightens him as to cause him to jump in such a way as to injure himself, the shooting is the proximate cause of the injury, although had the injured party stood still he would not have been injured.

The proximate cause is that which is nearest in the order of responsible causation; that which stands next in causation to the effect, not necessarily in time or space but in casual relation. Bouvier's Law Dictionary (Rawle's 3'd Revision), p. 2762.

The going out of the lights, the darkness, caused Mullican to walk and caused him as well to fall into the vat and lose his life. It was the proximate cause of both his walking and falling into the vat and the proximate cause of his death. The same cause as in this case, may proximately result in more than one thing; the going out of the lights proximately caused Mullican to walk, to fall into the vat and to lose his life. It would be absurd for the light company to claim that proximate cause of Mullican's death was the fact that the vat contained boiling liquids, and that the claim made that decedent proximately caused his own death by walking in the room after the lights were extinguished unsupported by no better reason than would be the claims, if made, that the vat's containing boiling liquid was the proximate cause of his death.

In the case recently decided by this court, Alabama & Vicksburg Ry. Co. et al. v. Beard (No. 20552, 81 So. 14), this court did not consider the question of proximate cause worthy of mention, although that case presented the question as a defense much more reasonably than does this one. In that case (decided March 17, 1919, by division B of this court) two independent acts intervened after what was held to be the negligent act of the defendants, before plaintiff was injured, one of the acts of the plaintiff in going into the narrow space between the railroad car and the bulk head of the board, and the other, the act of the unknown stranger in getting upon the side of the car, so that their bodies were brought into contact by the movement of the train. Had neither of these intervening acts been performed, Beard would not have been injured, and neither of these acts was the act of the defendants.

Unless the Beard case was wrongfully decided, we submit, there is not even a shadow of merit in the proximate cause defense in the case now at bar. See Yazoo City v. Purchel, 89 Miss. 700; Illinois Cent. R. Co. v. Seamans, 79 Miss. 106; Gulf, etc., R. Co. v. Sneed, 84 Miss. 252, and Yazoo, etc., R. Co. v. Aden, 77 Miss. 382, cases holding that such intervening causes as are claimed in this case prevent the preceding negligence of the defendant from being the proximate cause of injuries.

We will mention only one other point made in the brief to which we are now replying. The contract between Crawford and the light company was one of employment by Crawford of the light company to perform for him the duty owed by him to his employees. If Crawford made the light company his agent to light the factory, that company is liable to whomsoever was damaged by its misfeasance in performing its duty; and the use of old, worn, inadequate and defective machinery in performing its agency was a misfeasance and not a mere non-feasance. This certainly is true where, as in this case, the agent selected and used his own tools and machinery. Crawford could not, nor could the light company, escape liability to the injured third persons by stipulations embodied in their contract of agency. Establish the doctrine that both the principal and the agent, or either of them, can free themselves from liability for negligence resulting in injury to third persons, and it will soon follow that the injured in such cases will be without redress.

Amos & Dunn, for appellee.

On September 9, 1916, the appellee Crawford filed his plea of not guilty to the declaration. It appears, however, that on the 25th, day of August, 1916, Crawford had been adjudged a bankrupt, and that the trustee of his estate on September 26, 1916, filed a motion for a stay of further proceedings in the cause, as against said defendant, which motion was by the court sustained, and an order entered in the case accordingly by the circuit court.

Crawford was discharged in bankruptcy by an order for the district court of the United States for the Eastern Division of the Southern District of Mississippi, on the 18th day of January, 1917; and on March 26th, 1917, he filed a plea setting up his discharge in bankruptcy in bar of the appellant's claim and demands.

No further proceedings appear to have been taken in the cause until December, 1918, some eighteen months after said plea in bar was filed; when the circuit court entered an order in which it is recited that the defendant Crawford had submitted a motion for a judgment final in his favor for the plaintiff's failure to reply to his said special plea. The court sustained the motion, and entered a judgment final in favor of the appellee, Crawford.

It is nowhere insisted, that it was error in the court below in sustaining the motion of the appellee Crawford for a judgment final, on account of the failure of the plaintiff to reply to said special plea. First, because said plea concluded to the country, and not with a verification; second, said special plea was without merit; and third, because the court had entered an order staying further proceedings in the cause, and ought not, therefore, to have heard or considered the motion until the stay order had been revoked.

We appear here only for the appellee Crawford, and will notice but briefly the contentions which are made by the appellants which affect Crawford's interest.

The body of the plea, the entire substance thereof, is of such nature and character as to essentially classify it as being one in bar, and not a plea to the merits. We submit that the plea should not be stripped of its value and effectiveness simply because the pleader inadvertently closed it with a conclusion to the country instead of by a formal verification. The plea was treated in the court below by all parties as a plea in bar, and no question was there raised as to its technical accuracy, and this objection is raised to the plea for the first time in this court. It must be conceded of course, that the proper conclusion to such plea is with a verification, and not to the country. But we submit that in a case like this, where the...