New v. McMillan
| Decision Date | 25 May 1920 |
| Docket Number | 10071. |
| Citation | 191 P. 160,79 Okla. 70,1920 OK 222 |
| Parties | NEW ET AL. v. MCMILLAN ET AL. |
| Court | Oklahoma Supreme Court |
Rehearing Denied July 20, 1920.
Syllabus by the Court.
Instructions examined, and found to contain no substantial error, either in the instructions given nor in the refusal of instructions offered by plaintiffs in error.
(a) The record of testimony examined, and found to be sufficient to sustain the finding of the jury that deceased at the time of his death was in the employ of the railroad company.
(b) That it is sufficient to warrant the finding that the deceased came to his death through the negligence of the railroad company.
(c) Under all the evidence, it is sufficient to sustain the verdict as modified.
Whether or not the relation of master and servant exists in a given case is a question of fact or of mixed law and fact, and is to be proved as any other like question.
The relation of master and servant arises only out of contract to constitute such contract there must be mutual understanding, a mutual agreement between and a mutual meeting of the minds of the parties.
Where it is agreed that the relation of master and servant had existed up to a given time but an issue as to whether such relation ceased at such time and was transferred to a third person, a reasonable test in such case is whether or not the servant by mutual agreement terminated his employment, ceased to be under the control and orders of the former master renounced obedience to such master, and knowingly and willingly subjected himself to the orders of another under a new agreement with a new master.
Where a servant is under the control and subject to the orders of the master and under his employ owes obedience to such master and is ordered by such master to assist a third person to do a piece of work, and while so doing he remains under the control and subject to the orders of his master, he does not in such case become the servant of such third person, but remains the servant of his master.
Where a master orders his servant to assist a third person in doing a hazardous piece of work without warning him of the dangers thereof, the servant being unacquainted with the dangers of such work, and being under the control and subject to recall from same while engaged in such work, and while so engaged he loses his life through negligence in the operation of machinery, the master is liable in damages for such injury.
It is the duty of the master to exercise reasonable care in providing for his servants a safe place in which to work reasonably safe tools and appliances with which to work, reasonably careful, prudent and competent fellow servants with whom to work, and to warn them of dangers incident to a new piece of work, with which they are unacquainted, and, where a failure to discharge any one of such duties constitutes the proximate cause of an injury, the master will be held liable for damages.
In an action by a widow and minor children for the death of the husband and father caused by the wrongful act of another, the law does not undertake to condone for the loss of the husband and father, but merely provides for such damages as will reasonably compensate the family for the pecuniary loss sustained.
Where a verdict for damages is so far beyond the compensation contemplated and provided for by law as to plainly indicate that the jury was actuated by bias, prejudice, or passion, the verdict will be reduced for excessiveness.
Error from District Court, Pontotoc County; J. W. Bolen, Judge.
Action by Effie McMillan, administratrix of the estate of Ben J. McMillan, deceased, and others, against Alexander New and another, receivers for the Missouri, Oklahoma & Gulf Railway Company, a corporation, to recover for wrongful death. Judgment for plaintiffs, and defendants bring error. Modified and affirmed.
The relation of master and servant arises only out of contract, and to constitute such contract there must be mutual understanding, a mutual agreement between and a mutual meeting of the minds of the parties.
Arthur Miller, of Kansas City, Mo., and Jones & Foster, of Muskogee, for plaintiffs in error.
S. P. Jones, of Marshall, Tex., and E. N. Jones, of Ada, for defendants in error.
This suit was begun by Effie McMillan, as administratrix of the estate of her deceased husband, Ben McMillan, and for herself and five minor children asking judgment against the Missouri, Oklahoma & Gulf Railway Company and its receivers for negligently causing the death of her husband, while engaged in unfastening an elevator bucket at the top of a coal chute.
The cause was tried upon the issues: First, whether the deceased, if found to be in the employment of defendants, came to his death by his own contributory negligence, Second, whether he was in the employ of defendants or that of Arnold & Co., independent contractors, who are constructing the coal chute for the railroad company.
The verdict of the jury was in favor of plaintiffs, against the railroad company, for the sum of $21,780. From the judgment upon such verdict, the railroad company appealed.
The assignment of errors contains 15 separate grounds for reversal. These may all be embodied in and disposed of under the following heads, to wit:
(1) Whether the court erred in instructing the jury.
(2) Whether the evidence supported the verdict of the jury.
(3) Whether the court erred by entering a judgment not in accord with the verdict.
(4) Whether the verdict was excessive.
On the first question we have examined the court's instructions, as well as those offered by the defendants and rejected by the court, and are of the opinion that the court's instructions upon the theory upon which the cause was tried was a fair and substantially correct statement of the law applicable to the facts in the case.
The cause was tried upon the theory that the railroad company was engaged in interstate commerce, and that, if the deceased was in the employ of the railroad company and came to his death by the negligence of the railroad company, the damages, if any, should be awarded under the federal Liability Act (U. S. Comp. St. §§ 8657-8665).
As to whether the work in which the deceased was engaged did in fact constitute interstate commerce, thereby bringing him within the federal Liability Act, we are not called upon to decide, as that question is not made an issue here, nor was it made an issue in nor decided by the trial court.
The cause seems to have been tried, by mutual consent, upon the theory that if the railroad company was liable at all it was liable as an interstate carrier.
The court instructed the jury as to the law applicable in such case, and we find no substantial error in the instructions given, nor in the refusal of the instructions offered by the railroad company.
As to the sufficiency of the evidence, three questions are to be determined:
(1) Whether the evidence was sufficient to warrant the jury in finding that the deceased was in the employ of the railroad company and not in that of the independent contractor.
(2) Whether there was sufficient evidence to warrant the finding that deceased came to his death by the negligence of the railroad company, or whether by his own contributory negligence.
(3) Whether under all the evidence it is sufficient to sustain the verdict as modified.
On each of these questions the testimony was in direct conflict.
It is undisputed, however, that deceased was in the employment of the railroad company, and under its direction and control, up to the very minute that he began work on the coal chute.
M. P. Nash, the roundhouse foreman, denied that he had ordered or directed the deceased to go up on the coal chute, though he admitted that deceased was under his orders and control in and around the roundhouse and that he would have been discharged for any disobedience of his orders. He testified that Mr. Korten, the man who had had charge of the construction of the coal chute for the construction company, called to him (Nash) and asked him to send up a man to help dislodge the bucket at the top of the coal chute; that he told Joe McMillan, a brother of deceased, to go up on the coal chute and help Joe Korten, the Arnold man, and repeated that he told Joe McMillan to help Joe Korten with the bucket, but did not tell Ben McMillan, the deceased, to go.
Joe Korten testified that the deceased went up on the coal chute of his own accord, though he admitted that he asked Nash to send up a man to help him, and testified that Joe McMillan was the man who came in obedience to Nash's orders, but Joe McMillan testified that Mr. Nash told him to go up and help Ben, the deceased, with the bucket, and Ed Davis testified that he heard Mr. Nash tell Ben to go up. Here was a direct conflict in testimony; Nash and Korten testifying that Nash did not order the deceased to go up, and Joe McMillan and Ed Davis testifying that Nash did order deceased to go up.
The jury was the exclusive judge of the credibility of these witnesses, and gave credence to the testimony of Joe McMillan and Ed Davis, and under the law, the jurors being the exclusive judges of the credibility of the witnesses and the weight to be given their testimony, this court cannot say that they erred. And if Joe McMillan and Ed Davis told the truth, then Ben McMillan, the deceased, was ordered by Nash to go up on the chute and help Korten. This being true, he went up there in obedience to the command and orders of the railroad company, through its roundhouse foreman, and in fulfillment of his obligations under his employment, to obey the orders of such foreman; therefore he was in the employment of the railroad company, notwithstanding the fact...
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