Norton v. Standard Oil Co.

• Decision Date: 11 January 1937
• Docket Number: 32487
• Citation: 177 Miss. 758,171 So. 691
• Court: Mississippi Supreme Court
• Parties: NORTON v. STANDARD OIL CO. et al

171 So. 691

177 Miss. 758

NORTON v. STANDARD OIL CO. et al

No. 32487

Supreme Court of Mississippi

January 11, 1937

Division A

Suggestion Of Error Overruled, February 22, 1937.

APPEAL from the circuit court of Prentiss county HON. THOS. H JOHNSTON, Judge.

Suit by W. W. Norton against the Standard Oil Company and others. From a judgment in favor of the named defendant, the plaintiff appeals. Reversed and remanded.

Reversed and remanded.

Jas. A. Cunningham, of Booneville, for appellant.

This presents a situation rendering it the nondelegable duty of the master to exercise reasonable care to provide a reasonably safe place for these men to work, including appellant; and not only that, but to exercise care to see to it that such place is kept reasonably safe.

Murray Chevrolet Co. v. Cotton, 152 So. 657; Mississippi Cotton Oil Mills Co. v. Ellis, 17 So. 214; Gulf Ref. Co. v. Ferrell, 147 So. 476; Restatement of the Law, Agency, sec. 492; 30 A.L.R. 1502.

The defendant company is responsible for the negligent acts of the defendant Robert Bartlett for the reason that Bartlett was present on the premises and engaging in the performance of duties of the Standard Oil Company, Inc., and was taking directions or at least was subject to directions of the defendant company's alter ego Chester Gossin, and the duty of exercising ordinary care to extricate this truck without endangering these employees was a nondelegable duty of the master.

Thomas v. Wisconsin C. R. Co 108 Minn. 485, 23 L.R.A. (N.S.) 954, 122 N.W.; Vickers v. Kanawha & W.Va. R. Co., 64 W.Va. 474, 20 L.R.A. (N.S.) 793, 131 A. S. R. 929, 63 S.E. 367; 29 A.L.R. 736; 26 C. J. 37, sec. 9.

Learned counsel endeavor to invoke the fellow servant rule, which is wholly beside the mark and in no sense applicable to this case. An examination of the set-up most obviously reveals that this was not a changed condition growing out of the work in which employee was engaged, but it was a collateral danger which the work he was performing had no effect upon whatever, and that the invading force originated from other sources than that of his work.

45 C. J., sections 263 and 266; Hamilton Bros. v. Narceise, 158 So. 467; Gow Co. v. Hunter, 168 So. 264.

It is perfectly apparent from this record that it never at any time became the duty of appellant Norton to control the actions of this truck. He was ordered to go back to work in a very dangerous place; the order by his foreman constituted the grossest sort of negligence in view of the fact that the foreman did not intend to give notice when the truck moved out or to supervise the extrication of the truck from this dangerous proximity to this scaffold or trestle bench should mature with the movement of the truck. This the foreman is charged with duty to anticipate under Russell v. Williams, 151 So. 372.

Edwards v. Haynes-Walker Lbr. Co., 74 So. 284.

The proposition that Gossin did not promise these men that he would exercise ordinary care for their safety when this truck should move out and endanger them in the place where he had sent them to work by direct order, is a most novel one. What promises could Gossin have made that would have been stronger and more obligatory on his master than the solemn mandate of the law which required of him the exercise of ordinary care to see to it that these men were not endangered by the movements of this truck in the dangerous place where he had ordered them to work and of which he had full knowledge? There was no promise in the Edwards case, there was no promise in the Ellis ease, there was no promise in the Russell case, and there was no promise in the case of Yazoo Mississippi Valley Ry. v. Smith, 117 So. 339, where the employee was similarly situated as the appellant in this case and relied upon notice, failed to get it, and negligence was predicated and liability found.

Lyell & Lyell, of Jackson, for appellees.

In the case at bar there was no obligation or promise by Chester Gossin to warn the plaintiff and the other carpenters that the truck would move and when it would move. There was only one truck involved, and the plaintiff and the other two carpenters were on the scaffold over that truck, and the plaintiff himself was in the middle immediately over the truck, which could not have been over two or three feet below him. He knew the driver was there and would immediately move out when the lumber was unloaded. He saw and could have seen Bartlett get in his truck to drive off. He undoubtedly thought the whole situation was entirely safe, or, at least, reasonably safe, or he and the other two carpenters would not have gotten back on the scaffold or would have requested Bartlett to warn them before heading out with his truck. All of them were aware that he could see and that he did see and know everything that was going on and that the truck which was safely backed in would head out. The fact that all three of them acted as they did shows that they all regarded the situation as entirely safe to all concerned.

Columbus & Greenville R. R. Co. v. Coleman, 172 Miss. 514, 160 So. 277.

If a servant is of a class of persons who normally would know the conditions, or if he represents himself as being a person who knows the conditions or who would discover the defects if they existed, the master is under no duty to warn him, unless the master knows that in spite of appearances the servant is unfamiliar with the conditions and will not realize the risks. Even if the master neglectfully or unintentionally fails to perform what otherwise would be his duty, a servant who becomes aware of a dangerous condition of employment ordinarily has no cause of action for harm thereby suffered.

Restatement of the Law of Agency, section 510 and sub-section (f), page 1151.

The requirement that the master furnish a reasonably safe place to work does not apply to cases in which the work is of such a nature that during its progress the conditions are constantly changing as regards an increase or diminution of safety.

Restatement of the Law of Agency, section 500.

At the time and place in question Gossin was a fellow- servant of the plaintiff. He was engaged in sorting out the lumber unloaded by plaintiff and the other carpenters and Bartlett and out of which the garage doors were to be made. The plaintiff was finishing the nailing of the top board strip to receive the garage doors which he was to make from the blue prints turned over to him by Gossin. They were working in the same common employment and were fellow-servants, and hence there can be no recovery even if Gossin had been negligent in any respect.

Bradford Construction Co. v. Heflin, 88 Miss. 314, 42 So. 174; Lagrone v. M. & O. R. R. Co., 67 Miss. 592, 7 So. 432; Givens v. So. Ry., 94 Miss. 830, 49 So. 180; Harper v. Public Service Corp., 154 So. 266, 170 Miss. 39; Labatt's Master & Servant (2 Ed,) pages 4314-4316; City of Tupelo v. Payne, 168 So. 283; Barron Motor Co. v. Bass, 167 Miss. 786, 150 So. 202; Restatement, Agency, sections 475, 479, 480; Brown v. Coley, 167 Miss. 778, 152 So. 61.

In the case at bar, if there was any element of danger whatever, no one knew it any better than the plaintiff, who is thirty-three years older than the foreman Gossin and who has had thirty years of experience as a carpenter as compared with ten years experience of Gossin, though the latter is competent.

We respectfully submit that under the decisions of this court and the facts of this case, that if reasonably safe place to work doctrine applies, which is denied, such a place was furnished by the appellee to appellant and that the appellee was under no duty through Gossin to warn the appellant because appellant knew everything and more than Gossin did about the whole situation.

39 C. J., page 970; Cobb Bros. Construction Co. v. Campbell, 170 So. 283; Truly v. J. E. North Lbr. Co., 83 Miss. 430, 36 So. 4; Y. & M. V. R. Co. v. Downs, 109 Miss. 140, 67 So. 962; Y. & M. V. R. R. Co. v. Hullum, 119 Miss. 229, 80 So. 645; Barron Motor Co. v. Bass, 167 Miss. 786, 150 So. 202.

Argued orally by Jas. A. Cunningham, for appellant, and by G. G. Lyell, for appellee.

OPINION

McGowen, J.

W. W Norton, the appellant, an experienced carpenter, was employed by Chester Gossin, agent of the appellee, the Standard Oil Company, to construct a garage and warehouse in Baldwyn, Miss. It can be stated that Gossin was the alter ego of the appellee, the Standard Oil Company, as to the events of this case. On October 8, 1935, Norton was engaged as a carpenter in that work. Bartlett, a defendant in the court below and operator of his own motortruck, on the afternoon of that day, delivered, on the order of appellee's agent, a load of lumber, about one thousand feet of cypress, to be used in constructing a door to the building. Norton, with Lassiter and Cole, also carpenters, was standing on a trestle bench or horse, nailing a strip of lumber across the top of the door to the building. The trestle bench was a plank about fourteen feet long and twelve inches wide, with legs made of lumber nailed to the Plan about two feet from either end thereof, and were braced with lumber forming about a forty-five degree angle. It was safely...