Taylor v. Bradford

• Decision Date: 14 December 1903
• Citation: 83 Miss. 157,35 So. 423
• Court: Mississippi Supreme Court
• Parties: ELIZABETH TAYLOR v. SANDERS BRADFORD

35 So. 423

83 Miss. 157

ELIZABETH TAYLOR v. SANDERS BRADFORD

Supreme Court of Mississippi

December 14, 1903

October 1903

FROM the circuit court of Lowndes county. HON. EUGENE O. SYKES Judge.

Mrs Taylor, appellant, was the plaintiff in the court below Bradford, appellee, was defendant there. From a judgment of the court below sustaining defendant's demurrer to plaintiff's declaration the plaintiff appealed to the supreme court.

Bradford appellee, was a young gentleman of fortune, whose disability of infancy had been removed by decree of the chancery court, so tat he could go into business. He did so, soon after obtaining said decree, and entered upon a steam laundry enterprise. He had money, but not experience or knowledge touching the business. Therefore, he employed one Zachariah Hartzell, who was without money, but claimed to have the necessary experience and knowledge. Defendant, appellee Bradford, had nothing to do himself with the management of the enterprise, but placed Hartzell in full charge of the laundry, constituting him a vice principal in the full sense of the term. The injuries to plaintiff and this suit soon followed. The acts of defendant charged in the declaration were all done and performed by him through Hartzell, the vice principal. The other averments of the declaration are fully stated in the opinion of the court.

Reversed and remanded.

Orr & Harrison, for appellant.

The declaration makes out a clear case of liability on the part of Bradford under the most stringent test of the common law. The declaration alleges that plaintiff was a novice, inexperienced in the machinery of a steam laundry; that defendant had employed one Hartzell "as vice principal, general manager, and foreman," thus placing Hartzell in charge of everything.

That plaintiff called Hartzell's attention to the fender which was not in its proper place as she thought, but this man, who really stood in the stead of Bradford, assured her that the fender was not needed, and she, trusting in his superior knowledge of machinery, lost the use of her arm for life.

"The law remembers that the respective situations of the master and servant are unequal, and excuses the servant for deferring to the superior judgment of the master."

The declaration says Hartzell was master. 2 Thompson on Negligence (lst ed.), pp. 975, 1029, and cases cited in the note.

If Mrs. Taylor, who lost the use of an arm for life, has no case under her statement of facts, all operatives in mills, factories and other industries using the dangerous power of steam, are to be pitied.

Z. P. Landrum, for appellee.

It is apparent from the declaration that appellant was injured by one who stood in the relation of fellow-servant to her. If the act of Hartzell, the alleged foreman and manager, was negligence, such negligence within the fellow-servant rule was a risk which, in law, she assumed upon accepting the service. Petty v. Ry. Co., 67 Miss. 259, 260; Lagrone v. Mobile, etc., R. R. Co., 67 Miss. 596.

We have here two employes of a common master, engaged in the common employment of running the same steam laundry. When the injury occurred, they were both engaged in merely operative service. They were fellow-servants. Difference in pay, or department or rank, does not change the relation; they had a common master, a work in common, and at the time of the injury were cooperating in the purely operative service of running a steam laundry; an injury to one resulting from an alleged negligent act of the other is, then, within the rule, the result of the assumed risk of both, and cannot be made the basis of recovery in damages against the common employer. Petty v. Ry. Co., 67 Miss. 259; Lagtone v Mobile, etc., R. Co, 67 Miss. 596; Fitzgerald v....