Reed v. New Orleans Great Northern R. Co.

• Decision Date: 01 January 1934
• Docket Number: 30613
• Court: Mississippi Supreme Court
• Parties: REED v. NEW ORLEANS GREAT NORTHERN R. CO

151 So. 553

170 Miss. 296

REED v. NEW ORLEANS GREAT NORTHERN R. CO

No. 30613

Supreme Court of Mississippi

January 1, 1934

Division A

Suggestion Of Error Overruled June 11, 1934.

APPEAL from circuit court of Marion county HON. J. Q. LANGSTON Judge.

Action by Lem Reed against the New Orleans Great Northern Railroad Company. Judgment for defendant, and plaintiff appeals. Reversed and remanded.

Reversed and remanded.

Ford & McGehee and Rawls & Hathorn, all of Columbia, for appellant.

The Workmen's Compensation Act did not change the effect under article 2315 of the Civil Code of Practice of Louisiana, 47 La. Ann. 1548, and did not change the effect of the holding of the Supreme Court of Louisiana in the case of Sincer v. Heirs of Bell, 47 La. Ann. 1548, 18 So 755, interpreting the said statute and denying the right of one tort-feasor to recover against his joint tort-feasor, but merely gave to an employer the right, upon becoming legally responsible to the employee for compensation, to sue before as well as after payment, or as soon as liability became fixed, where a third person has injured an employee without fault or concurrent negligence of the employer.

Foster & Glassell Co., Ltd. v. Knight Bros., 93 So. 913.

It was not until the passage of Act 247 of 1920, amending Act 20 of 1914 of the Workmen's Compensation Act of Louisiana, that the insurer of an employer was expressly subrogated by the Workmen's Compensation Act to the rights of the employer as against a third person who had negligently injured an employee, but it is nevertheless true that an insurer already had this right of subrogation under the general provision of article 2315 of the Civil Code where the insurer had been compelled to pay damages to an employee injured by reason of the negligence of a third party, but subject of course, to the rule announced in the case of Sincer v. Heirs of Bell, 18 So. 755, where the Supreme Court of Louisiana in interpreting the said article 2315 of the Civil Code said: "Liability from negligence is to the injured party, and if one of two wrongdoers pays the damage, he acquires no right of action against the other."

London Guarantee & Accident Ins. Co. v. Vicksburg S. & P. R. Co., 153 La. 287, 95 So. 722; Fidelity Union Casualty Co. v. Carpenter, 125 So. 504; Rumpf v. Callo et al., 132 So. 763; Louis Sincer v. Heirs of M. M. Bell, 47 La. Ann. 1548, 18 So. 755; Appalachian Corporation v. Brooklyn Cooperage Co., 151 La. 41, 91 So. 539.

Supposing, for the sake of argument, that the Guardian Casualty Company, as insurer of the employer, Great Southern Lumber Company, had paid the plaintiff full and complete compensation for both his loss of time and his physical pain and suffering, etc., as was not done, it would not even be entitled under the law as between joint tort-feasors to require contribution from the defendant railroad company for its portion of the damages paid on account of the railroad company's participation in the negligence that caused the injury, to say nothing of not being entitled to complete subrogation.

Tacoma v. Bonnell, 36 L. R. A. (N. S.) 583; Union Stock Yards Co. v. Chicago, B. & Q. R. Co., 196 U.S. 217, 49 L.Ed. 453; Central R. Co. v. Macon R. & L. Co., 71 S.E. 1076; Doles, Administrator, v. Seaboard Air Line Ry. Co., 42 L. R. A. (N. S.) 67, 75 S.E. 722; City of Louisville v. Louisville Ry. Co., 49 L. R. A. 350, 156 Ky. 141; 6 R. C. L. 1054-1057; 13 C. J. 829; Appalachian Corp. v. Brooklyn Cooperage Co., 91 So. 542; 13. C. J. 831; Gray v. Boston Gaslight Co., 114 Mass. 152, 19 Am. Rep. 324; Pennsylvania Steel Co. v. Washington & Berkeley Bridge Co., 194 F. 1011; Cincinnati N. O. & T. P. R. Co. v. Louisville & N. R. Co., 97 Ky. 128; 13 C. J. 828.

We assume that our court will follow the decisions of the Louisiana court and the general rule as being applicable in the case at bar and deny the right of the intervenor to seek subrogation herein, and especially so, since the decisions of our own court are in harmony with the Louisiana court and the general rule hereinbefore stated on the question of the right of subrogation or contribution between joint tort-feasors.

Illinois Central R. R. Co. v. Clarke, 84 Miss. 691, 38 So. 97; Thomas v. Bounds, 161 Miss. 713, 137 So. 894.

Under the undisputed facts as established by the pleadings and evidence in this case, the sole duty actually rested upon the appellee, New Orleans Great Northern Railroad Company to furnish Lem Reed with a reasonably safe place within which to walk.

The proof is undisputed that appellee constructed the track, the bridge and the switch in question, determined the location of the switch, and maintained the track, bridge, switch, etc., and that the Great Southern Lumber Company was not even permitted to have anything to do with, nor any control over construction, maintenance or repair.

18 R. C. L. 542, par. 57; 22 R. C. L. 1088.

Regardless of the effect of a lease in ordinary cases, if the lessor company retains a control over the operation of the road, it will be liable for injuries resulting from such operation.

51 C. J. 1092, par. 1139, and page 1094, par. 1144; Nugent v. B. C. & M. R. R., 6 A. S. R. 152; Lee v. Southern Pacific R. R. Co., 58 A. S. R. 140; Killian v. Augusta, etc., R. R. Co., 11 A. S. R. 410; D'Almeida v. Boston, etc., R. Co., Ann. Cas. 1913C, page 754.

The duty of a railroad company to keep its road and switches on it in a safe and proper condition for use is of a public character, and is due to every person who is lawfully upon the road, and one which it cannot dispose of by leasing the road to another.

Sawyer v. Rutland, 27 Vt. 370; Texas & P. R. Co. v. Moore, 8 Tex. Civ. App. 289; Galveston H. & S. A. R. Co. v. Daniels, 9 Tex. Civ. App. 253; Trinity & S. R. Co. v. Lane, 79 Tex. 643; Rome R. Co. v. Thompson, 101 Ga. 26; Southern Ry. Co. v. Arnold; 50 So. 293; Southern Ry. Co. v. Sittasen, 74 N.E. 898; Hamilton v. Louisiana & N.W. R. Co. et al., 41 So. 560; Caruthers v. Railroad Co., 59 Kan. 629, 54 P. 673, 44 L. R. A. 737, 750-752; Muntz v. Railroad Co., 111 La. 423, 35 So. 624, 64 L. R. A. 222, 100 Am. St. Rep. 495; Miss. Cent. R. R. Co. v. Lott, 118 Miss. 816, 80 So. 277.

The general doctrine is that it is no defense, in actions for injuries resulting from negligence, that the negligence of third persons, or an inevitable accident, or an inanimate thing, contributed to cause the injury to the plaintiff, if the negligence of the defendant was an efficient cause, without which the injury would not have occurred.

22 R. C. L. 128, et seq.; 50 C. J. 842; Colorado Springs Railroad Co. v. Allen, 135 P. 790; Ethridge v. Norfolk Southern Railroad Co., 129 S.E. 680; Johnson v. Northwestern Telephone Exch. Co., 51 N.W. 225, 226, 48 Minn. 433; Gunter v. Graniteville Mfg. Co., 15 S.C. 443, 452; Young v. Syracuse B. & N. Y. R. Co., 61 N.Y.S. 202, 204, 45 A.D. 296; San Antonio & A. P. R. Co. v. Jazo, 25 S.W. 712, 714; San Antonio & A. P. R. Co. v. Trigo, 108 S.W. 1193, 1194, 49 Tex. Civ. App. 523; Sweet v. Perkins, 90 N.E. 50, 51, 196 N.Y. 482; Ray v. Pecos & N. T. R. Co., 88 S.W. 466, 468, 469; Rollestone v. T. Cassirer & Co., 59 S.E. 442, 447, 3 Ga.App. 161; Phillips v. N. Y. Central & H. R. R. Co., 27 N.E. 978.

Henry Mounger, of Columbia, and Flowers, Brown & & Hester, of Jackson, for appellee.

It was under section 7, Act 246, Louisiana Laws of 1920, and pursuant to the notice given by counsel for the plaintiff that the Guardian Casualty Company intervened.

We are not here concerned with the legal question of the rights of one joint tort-feasor to recover against another, nor are we interested in the question of the right of contribution as between joint tort-feasors. This intervention was brought pursuant to the authority given the intervenor by the Louisiana statute. The authorities cited by counsel for appellant have absolutely no bearing here. Not only this, but it would seem to us that in this case where the intervention was filed pursuant to notice and invitation given by the plaintiff that certainly the plaintiff has waived any objection he might have to it.

An action for compensation under the Louisiana Workmen's Compensation Act is based on contract and not on tort.

Legendre v. Barker, 5 La. App. 618.

The insurer paying the compensation under the act was by Act No. 85, Louisiana Law 1926, specifically given the same right as the employer to intervene.

It is unnecessary for the insurer to obtain conventional subrogation from either the employer or the employee, nor is it necessary for the insurer bringing the suit to specifically state in the complaint whether it sues as legal subrogee or whether it claims under article 2315 of the Code. All that is necessary is for it to set out facts showing that it is entitled to recover under the law.

Fidelity Union Casualty Co. v. Carpenter, 125 So. 504; Hudson v. Union Indemnity Company, 119 So. 462.

It will be recalled that the plaintiff was not an employee of the railroad company and was not even handling a train of cars belonging to the railroad company. He was an employee of the Great Southern Lumber Company operating a train of cars belonging to that company, one of which was equipped with a defective bleed rod which broke when he pulled on it and caused him to lose his balance and fall from the bridge.

The bridge, off of which the plaintiff fell, was not intended to be used for anything else than trains. It had no walkway on it and was not constructed with a view to accommodating persons traveling on foot.

The duty to furnish a safe place in which to work is a duty that exists only by virtue of the relation of master and servant.

Buckner v. Railroad Company, 18 So. 449; Railroad Co. v Washington, 86 Va. 629, ...