Randolph Lumber Co. v. Shaw

Decision Date09 December 1935
Docket Number31933
CourtMississippi Supreme Court
PartiesRANDOLPH LUMBER CO. v. SHAW

Division B

1 PLEADING.

Where injured employee filed replication to employer's plea of release and, after rejoinder thereto, filed second replication, and pleaded that he never signed any release but signed what employer said was receipt for half of wages which employer promised to pay, denying motion to make second replication more specific by alleging consideration and purpose of such promise and advantage to be gained by employer held not error.

2. MASTER AND SERVANT.

Evidence that wires comprising cable being operated by lumber company's employee were old, worn, and broken, and that one or two days before injury employee told foreman that slivers were likely to be thrown off, held sufficient for jury on question whether sliver from cable caused injury.

3 RELEASE.

Giving instruction that release would not bar injured employee's recovery if signed in reliance on fraudulent statement that it was merely receipt for half of wages held not error under evidence.

HON. J L. TAYLOR, Special Judge.

APPEAL from the circuit court of Harrison county HON. J. L. TAYLOR, Special Judge.

Action by Ellis Shaw against the Randolph Lumber Company. Judgment for plaintiff, and defendant appeals. Affirmed.

Affirmed.

T. J. Wills, of Hattiesburg, for appellant.

There was no representation that the money being paid to him was money that was due him. In fact there was no money due him. He was receiving this money for something that the master was to be given value for. This did not show, nor even tend to show, that a fraud had been perpetrated on him.

A. & V. Ry. v. Turnbull, 71 Miss. 1029, 16 So. 346; A. & V. Ry. v. Kropp, 129 Miss. 616, 92 So. 691; Gunter v. Henderson Malpus Co., 149 Miss. 603, 115 So. 720.

The evidence of negligence was wholly insufficient to carry the case to the jury. The proof showed that it was customary to use these cables until they wore out and broke. This cable was not worn out and was pulling the logs in and did not break.

Assuming that it was a sliver from the wire and not a cinder that went in plaintiff's eye, it did not fly as a result of the rope breaking but from some other cause wholly undisclosed from the evidence in this case. There was no evidence to show that a rope, worn and frayed, was made dangerous by flying slivers therefrom. Negligence was not established and the peremptory instruction, for that reason, should have been given.

J. M. Morse, of Poplarville, for appellee.

The motion is in general terms and does not point out wherein the plea is insufficient in any manner and only asks the court to make the appellee to be more specific, and since the appellant has not seen fit to cite any authorities, we judge that he did not care to argue this to the court. However, we desire to point out that if he had desired the plea to be more specific that this could have been reached by a motion as required by the statute, to-wit: Section 555, Mississippi Code of 1930.

And since the appellant did not avail himself of this liberal provision of the statute, by complying with the statute, he cannot complain. However, if we are wrong in this contention, appellant fails to show to the court in any manner where he was injured and this court has held in the case of Thomas v. Shell, 76 Miss. 556, 24 So. 876, where from the whole record a party was not injured by a refusal to require a bill of particulars, that the failure to give the same is not a reversible error.

We think the jury had ample authority to find that there had been fraud perpetrated on this young man.

Our court has repeatedly held that where a person was fraudulently induced to sign a release that the same was void.

St. Louis R. R. Co. v. Ault, 101 Miss. 341, 58 So. 102; Pilot Life Ins. Co. v. Wade, 121 So. 844; Jones v. A. & V. R. R. Co., 72 Miss. 22, 16 So. 379; Dana v. Gulf & Ship Island R. Co., 106 Miss. 497, 64 So. 214; Davis v. Elzey, 126 Miss. 789, 88 So. 630; Jones v. Ry. Co., 72 Miss. 22, 16 So. 379; Chiles case, 86 Miss. 361, 38 So. 398.

OPINION

Ethridge, P. J.

This is an appeal from a judgment of the circuit court of Harrison county for three thousand dollars, for a personal injury. The declaration was filed on September 7, 1933, and alleged that on July 1, 1929, the appellant was operating under the name of the Edward Hines Lumber Company, and that the appellee was employed to work on one of its skidders, which was equipped with a drum around which was wrapped a steel cable, and that, while so engaged in operating said drum, a sliver from said steel cable broke and flew into the appellee's eye causing him severe pain and permanent injury to the eye.

It was also alleged that the cable was very old and had become frayed and the strands were worn and broken, so that any time pieces thereof were likely to fly off and cause injury to employees whose duty it was to work in the immediate vicinity thereof.

The defendant, appellant here, pleaded the general issue, and also a special plea in which it was said that the appellee had settled, compromised, and released the appellant from all liability for the consideration of sixteen dollars,...

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7 cases
  • fornea v. Goodyear Yellow Pine Co.
    • United States
    • Mississippi Supreme Court
    • February 21, 1938
    ...297, 164 So. 587; Huff v. Bear Creek Mill Co., 116 Miss. 509, 77 So. 306; Kansas City Ry. v. Chiles, 38 So. 498. The case of Randolph Lumber Company v. Shaw, supra, practically on all fours with the case at bar. In that case the release recited that appellee had settled, compromised and rel......
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    ... ... 778, 152 So. 61; ... Cumberland Tel. Co. v. Cosnahan, 105 Miss. 615, 62 ... So. 824; Lumber Co. v. Miles, 135 Miss. 146, 99 So ... 759; International Shipbuilding Co. v. Carter, 121 ... (Miss.), 185 So. 230; McLemore v. Rogers, 169 ... Miss. 650, 152 So. 883, 884; Randolph Lumber Company v ... Shaw, 174 Miss. 297, 164 So. 587; Eagle Cotton Oil ... Company v. Sollie, ... ...
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    ... ... 291, ... 122 So. 492; McLemore et al. v. Rodgers, 169 Miss ... 650, 152. So. 883; Randolph Lbr. Co. v. Shaw, 174 ... Miss. 297, 164 So. 587; Brown v. Coley, 168 Miss ... 778, 152 So ... length of this step. We see that it is substantially built ... with sound lumber, and has a smooth and varnished surface. It ... is not claimed to have been insecurely fastened ... ...
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    ... ... without any consideration ... Randolph ... Lbr. Co. v. Shaw, 164 So. 588, 174 Miss. 297; ... Provident Life & Acc. Ins. Co. v ... ...
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