Superior Oil Co. v. Richmond

• Decision Date: 18 March 1935
• Docket Number: 31571
• Court: Mississippi Supreme Court
• Parties: SUPERIOR OIL CO. et al. v. RICHMOND et al

159 So. 850

172 Miss. 407

SUPERIOR OIL CO. et al. v. RICHMOND et al

No. 31571

Supreme Court of Mississippi

March 18, 1935

Division A

Suggestion Of Error Overruled, April 29, 1935.

APPEAL from the circuit court of Harrison county HON. W. A. WHITE Judge.

Action by Elma Richmond and others against the Superior Oil Company and the Standard Brands, Inc. From a judgment for plaintiffs, defendants appeal.

Judgment affirmed as to the Superior Oil Company, and reversed and rendered as to the Standard Brands, Inc.

Judgment affirmed as to Superior Oil Company, but reversed as to Standard Brands, Inc.

U. B. Parker, of Wiggins, for appellant, Superior Oil Company.

Appellant Superior Oil Company, first, by its demurrer, contended that the declaration showed on its face that the injury to and death of the deceased was proximately caused by an independent, efficient, intervening cause, to-wit: the act of Love Stewart in going upon the property of defendant Superior Oil Company, without invitation, and negligently committing an act which caused the ignition of gasoline vapors.

Louisville & N. R. Co. v. Daniels, 135 Miss. 33, 99 So. 434; Wharton on Negligence, sec. 134.

Where a third person would only be using the negligence of a first person to accomplish his purpose, there would be no legal connection between the first wrongdoer and the intervening act.

Louisville & N. R. Co. v. Daniels, 135 Miss. 33; Milwaukee & St. Paul R. Co. v. Kellogg, 94 U.S. 469; Public Service Corp. v. Watts, 168 Miss. 235, 150 So. 192; Southern Pacific Co. v. Ralston, 62 F.2d 1026.

Where negligent act of other than that charged, committed by legally responsible persons, acting independently, intervenes and directly causes injury, unless it could have been anticipated by a reasonably prudent person, intervening act is "proximate" cause and act charged is "remote" cause, for which there is no liability.

Southern Pacific Co. v. Ralston, 62 F.2d 1026; Wharton on the Law of Negligence, sec. 134; Louisiana Mut. Ins. Co. v. Tweed, 7 Wall. 44, 52, 19 L.Ed. 65; Anderson v. Baltimore & O. R. Co., 51 L.Ed. (N.S.) 888; Stone v. Boston & A. R. Co., 171 Mass. 536, 51 N.E. 1; Claypool v. Wigmore, 34 Ind.App. 35, 71 N.E. 509.

The declaration showed on its face that the deceased was in a place of safety and was neither invited nor instructed by the appellant to go upon its premises and place himself in a place of danger; that he was a volunteer, with full knowledge of the danger incident to his conduct, and that Superior Oil Company is in no way responsible and liable for his injury and death.

45 C. J., page 1043, sec. 600; Indiana Natural Gas, etc., Co. v. O'Brien, 65 N.E. 918, 66 N.E. 742; Warren v. R. R. Co., 163 Mass. 484, 40 N.E. 895; O'Malley v. Gas & Light Co., 158 Mass. 135, 32 N.E. 1119; 47 L.R.A. 161; Minor v. R. R. Co., 153 Mass. 398, 26 N.E. 994.

Our defense is that there was an existing dangerous condition and that regardless of how it came about or what caused it, the deceased was in a place of safety, and with full knowledge and ability to appreciate what he saw from the glaring facts confronting him, he took the risk of the hazard, or incurred the risk incident thereto.

Republic Iron & Steel Co. v. Fuller, 60 So. 475; Johnson v. New Orleans Terminal Co., 97 So. 795; Jones v. Southern United Ice Co., 167 Miss. 886, 150. So. 650; Gover v. Central Vermont H. Co., 118 A. 874; Miner v. Connecticut River R. Co., 26 N.E. 994; Indiana Natural Gas & Oil Co. v. O'Brien, 160 Ind. 266, 65 N.E. 918, 66 N.E. 742; Dow v. Town of D'Lo, 152 So. 474; Greenville v. Middleton, 124 Miss. 310; Doughtery v. Pratt Institute, 155 N.E. 67; Kauffman v. Machine Shirt Co., 140 P. 15; Kelly v. Hinds Directory General, 102 S.E. 921; Cleveland C. C. & L. Ry. v. Ballantine, 84 F. 935; Standard Oil Co. v. Titus, 219 S.W. 1077; Ackerman v. Pierre Marquette Ry. Co., 108, N.E. 144; 45 C. J., page 957, sec. 514; Ford Motor Co. v. Casey, 252 F. 120, 164 C. C. A. 232; Wright v. J. A. Richards & Co., 108 So. 610; Thierry v. Oswell, 102 So. 903; Walker v. Nona Mills Co., 92. So. 318; Little v. Wilberts' Sons Lbr. Co., 76 So. 582; Pittsburg C. C. & St. L. Ry. Co. v. Hoffman, 107 N.E. 315; Terre Haute Ec. Co. v. Young, 104 N.E. 780; Diamond, etc., Co. v. Cuthbertson, 166 Ind. 290, 76 N.E. 1060.

The amount of this verdict, on its face, evidences prejudice and an absolute disregard for the facts and the evidence offered in support of plaintiff's claim for damages.

Carl Marshall, of Gulfport, for appellant, Standard Brands, Inc.

The evidence fully disclosing all the facts and circumstances of the cause, and manifesting without conflict or contradiction that Standard Brands, Inc., is not liable to respond in damages to the appellees by reason of the unfortunate and tragic death of their decedent, the judgment appealed from should be reversed, and the cause here dismissed, as to the appellant Standard Brands, Inc.

We believe that a moment's reflection, and even a cursory glance through the authorities, is sufficient to convince one that it is not negligence for the appellant Standard Brands, Inc., to respond to the official call for volunteers, and to endeavor to protect its own and the community's property, and the lives of the community's citizens, through the agency of its employees, against a dire peril not created by any negligence or fault of its own; and, conceiving that familiar and elementary principles are involved in a consideration of that appellant's contention here, we ask leave to cite only one or two controlling authorities, directly in point.

Goodyear Yellow Pine Co. et al. v. Clarke, 163 Miss. 661, 142 So. 443; Maltbie v. Belden, 167 N.Y. 307, 60 N.E. 645, 54 L.R.A. 52.

The risk not having been caused or enhanced by any negligence of the employer defendant, the defense of assumption of the risk remains in full flower as at common law, unaffected by the Mississippi statute; and it not being negligence per se for the employer to endeavor to protect its own and others' property by combatting flames through the agency of employees, the case cannot be one of liability of the employer.

In order for a servant to recover for an injury on the ground that it resulted from his compliance with a direct order of his master, or his master's representative, the servant must show that the order was a negligent one under the circumstances.

Rosaman v. Ga. Ry. & P. Co., 91 S.E. 90, L.R.A. 1917C 483; Hope v. Natchez C. & M. R. Co., 98 Miss. 822, 54 So. 369; International Ship Building Co. v. Carter, 121 Miss. 103, 83 So. 413; Ozen v. Sperier, 150 Miss. 458, 117 So. 117; Richards v. City Lbr. Co., 101 Miss. 678, 57 So. 977; Powell v. Plant, 23 So. 399.

The amount of damages awarded the appellees below was, and is, grossly excessive.

B. Kullman & Co. v. Samuels, 148 Miss. 871, 114 So. 807; Belzoni Hardware Co. v. Cinquimani, 137 Miss. 72, 102 So. 470; Cumberland Tel. & Tel. Co. v. Pitchford, 30 So.41.

English Lindsey and Bidwell Adam, both of Gulfport, for appellees.

The act of Love Stewart was not independent, intervening, efficient cause.

11 R. C. L., p. 662; Stone v. Texas Co., 105 S.E. 425.

When Louis Varnado left the plant of Superior Oil Company unguarded while this gasoline was being pumped, his act was little short of criminal negligence, and no matter how the gasoline became ignited, the original negligence of Varnado was the proximate cause of the fire and explosions and every injury resulting therefrom.

Bradley v. Shreveport Gas, Electric Light & Power Co., 76 So. 231; 21 A. & E. E. of L., pages 494 and 495; Montgomery v. Gulf Refining Co. of La., 121 So. 578.

The rule is that, if the occurrence of the intervening cause might reasonably have been anticipated, such intervening cause will not interrupt the connection between the original cause and the injury.

Russell v. Williams, 151 So. 372; Moore v. Lanier, 52 Fla. 353, 42 So. 642; Cumberland Tel. & Tel. Co. v. Woodham, 54 So. 890.

Appellant Superior Company was not relieved from liability for death of Joe Richmond on doctrine of assumed risk or incurred risk.

Henry v. Cleveland, C. C. & St. L. R. Co., 67 F. 426; Illinois C. R. Co. v. Siler, 15 L.R.A. (N.S.) 821; Liming v. Illinois C. R. Co., 81 Iowa 446, 47 N.W. 66; 45 C. J., p. 920; Wilson v. Northern Pacific R. Co., 30 N.D. 456, 153 N.W. 429, L.R.A. 1915E 991; Houston Belt & Terminal Ry. Co. v. O'Leary, 136 S.W. 601; Bucholz v. Standard Oil Co., 244 S.W. 973; I. C. R. Co. v. Thomas, 68 So. 773, 109 Miss. 536.

Appellant Standard Brands was not entitled to peremptory instruction.

There is sufficient evidence in the record upon which the jury could base a finding that Joe Richmond went to the fire to fight the fire for the purpose of protecting the property of Standard Brands, Inc., and that in doing this Joe Richmond was acting in good faith and upon a direct command given him by Tom Fox Walton, superintendent of Standard Brands, Inc. This being true, it is our contention that the court could not grant Standand Brands, Inc., a peremptory instruction without committing error, and that this case was properly submitted to the jury, and that the finding of the jury is conclusive as to these facts.

18 R. C. L., sec. 147, page 654; 20 R. C. L., sec. 110, page 133; 39 C. J. p. 179; 30 L.R.A. (N.S.) 436; Perrier v. Dunn Worsted Mills, 29 R. I. 396, 71 A. 796; Butler Ballast Co. v. Hoshaw, 94 Ill.App. 68.

If the danger of obeying an order is not so glaring that no prudent man would have undertaken it, the law will not declare the servant's act of obedience negligence per se, but will leave it to the jury to say whether he ought to have obeyed the order.

Galveston H. & S. A. R. Co. v. Puente, 30 Tex. Civ. App. 246, 70 S.W. 362; Lowe Mfg. Co....