Nowell v. Harris
| Decision Date | 14 December 1953 |
| Docket Number | No. 38851,38851 |
| Citation | 68 So.2d 464,219 Miss. 363 |
| Parties | NOWELL v. HARRIS et al. |
| Court | Mississippi Supreme Court |
Hester & Walker, Laurel, for appellant.
Beard, Pack & Ratcliff, Laurel, George D. Maxey, Ellisville, for appellees.
On January 1, 1951, Nowell endeavored to remove the chain binder from a stack of lumber. The lumber fell and injured him. He sued Travis Haynes, Jr., doing business as Haynes Lumber Company, and T. H. Harris and G. M. Harris, doing business as Harris Lumber Company. The trial court gave a peremptory instruction for all defendants, and Nowell appeals. The question for decision is whether the court committed reversible error in granting the peremptory instruction.
As to Haynes, the declaration charged him with negligence, causing the injury to plaintiff, in that (1) Haynes failed to furnish plaintiff, as a servant of Haynes, a safe place in which to work; (2) that Haynes failed to carry workmen's compensation insurance for benefit of plaintiff; (3) that Haynes knew, or should have known, that plaintiff was a minor, inexperienced about removing binders from lumber, and Haynes should have furnished him additional help in doing that work, and (4) that the accident happened on January first, which was a holiday, and that it occurred at the lumber yard of Harris, who did not have on that day sufficient help, and Haynes should have foreseen that fact.
None of the asserted contentions are established but it is sufficient, for purposes of this opinion, to say that it is undisputed that Haynes was carrying workmen's compensation insurance for his employees, and he reported this accident to his insurance carrier. That precludes this action based upon alleged common-law negligence. Appellant, by his pleadings and proof, his asserted throughout this action that the relation of master and servant existed between him and Haynes. Section 5, Chapter 354, General Laws of Mississippi 1948. The fact appellant was not named in the policy is immaterial. The policy covered the employees of Haynes and the terms of the Act were written into the policy. National Sur. Corp. v. Kemp, Miss., 64 So.2d 723, Suggestion of Error overruled, Miss., 65 So.2d 840. The court did not err in directing a verdict for Haynes.
As to the liability of T. H. Harris and G. M. Harris (whom we shall call Harris), the declaration alleges (a) that Nowell was a business invitee upon the premises of Harris and was injured by a hidden, undisclosed danger on such premises; (b) that the lumber was negligently stacked, which fell upon Nowell when he unloosed the binder pursuant to directions by Harris, and that Harris knew, and Nowell did not know, of such negligent stacking.
The proof shows that Haynes was operating a sawmill some three miles south of Laurel, Mississippi; that Harris was engaged in buying and selling lumber; that the lumber he purchased was delivered upon his lumber yards in Laurel; that he was buying lumber from Haynes, which Haynes was delivering to said yards; that Nowell was driving a truck for Haynes, hauling the lumber from the mill of Haynes and delivering it upon the lumber yards of Harris; that on the day of the injury Nowell appeared upon Harris' yards with a truckload of lumber. Ordinarily, the servants of Harris would place a binder about the load of lumber and lift the same from the truck and place it on a ramp. On this day Harris had only one employee on duty--Doggett, who was the foreman. When Nowell arrived at the yards with his truckload of lumber Doggett instructed him to go to a nearby stack of lumber, unloose the chain binder around it and place this chain binder about the load of lumber on the Haynes truck, the loaded lumber then to be lifted and properly placed upon, or about, the ramp, as might be directed. Nowell undertook to follow the instructions of Doggett. When he loosed the binder the stack of lumber fell upon him causing his injuries. Nowell said he was inexperienced in unloosening binders about stacks of lumber and that he did not notice anything indicating to him the lumber had not been properly stacked. On the other hand, Doggett testified that if the lumber had been properly...
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