Virginia-Carolina Chemical Co. v. Jefferson
| Decision Date | 27 November 1939 |
| Docket Number | 33892 |
| Court | Mississippi Supreme Court |
| Parties | VIRGINIA-CAROLINA CHEMICAL CO. v. JEFFERSON |
APPEAL from the circuit court of Hinds county HON. J. P. ALEXANDER Judge.
Suit by John Jefferson against the Virginia-Carolina Chemical Company to recover for injuries sustained while engaged in loading a box car with fertilizer. Judgment for plaintiff, and the defendant appeals. Judgment affirmed.
Affirmed.
Green Green & Jackson, of Jackson, for appellant.
The requested peremptory instruction for the defendant should have been given the defendant.
The proof fails to show that there had been any change in the rules, orders and methods of work knowingly made by appellant which in any manner contributed to the injuries received by plaintiff, appellee.
Eagle Cotton Oil Company v. Sollie (Miss.), 187 So. 506 507; Dr. Pepper Bottling Co. v. Gordy, 174 Miss. 392, 164 So. 236; Meridian Grain & Elevator Co. v. Jones, 176 Miss. 764, 169 So. 771; Gulfport Fertilizer Co. v. Bilbo, 178 Miss. 791, 174 So. 65.
The proof fails to show that the defendant had any notice that its employees, including plaintiff, had, prior to the accident adopted any safer method of performing the work than was required by the defendant.
Jefferson v. Virginia-Carolina Chemical Company (Miss.) 185 So. 230; Hammontree v. Cobb Construction Company, 168 Miss. 844, 152 So. 279; Vehicle Motor Company v. Bowles, 158 Miss. 346, 128 So. 98; Tatum v. Crabtree, 130 Miss. 462, 94 So. 449.
The method used by the defendant, including the rules and orders given, was the same as that used in other fertilizer factories similarly situated for similar work, and no negligence resulted from such method as shown by the record in this case to have been adopted by the employer.
Eagle Cotton Oil Co. v. Sollie (Miss.), 187 So. 506, 507.
The alleged injuries resulted solely if at all on plaintiff's testimony from the negligence of a fellow servant.
Tatum v. Crabtree, 130 Miss. 462, 94 So. 449; Eastman-Gardiner Hardwood Company v. Chatham, 168 Miss. 471, 151 So. 556; Newell Contracting Company v. Flynt, 172 Miss. 719, 161 So. 298, 300.
There was full release, accord and satisfaction.
This case as to the binding effect of the release is controlled perfectly by Whittington v. Cottam, 158 Miss. 827, 130 So. 745, 76 A.L.R. 332, note 344, approved in Thomas v. Rounds, 137 So. 894, 161 Miss. 712.
Foster v. Meridian, 116 So. 820, 150 Miss. 715; Whitney v. Cook, 53 Miss. 551, at page 559; Railway Company v. Fulton, 71 Miss. 388.
We submit that the release here pleaded was for a valuable consideration, was knowingly executed and was obtained without fraud or coercion, and that it represents, under the above authorities, a complete accord and satisfaction for which there should be no recovery under any other view of this case.
Willoughby v. Pope, 101 Miss. 808, 58 So. 705; Rowe v. Fair, 128 So. 90, 157 Miss. 326; Railway Company v. Turnbull, 71 Miss. 1029, 1039; Smith v. St. L. & S. F. R. Co., 112 Miss. 878, 73 So. 803; Gunter v. Henderson-Molphus Co. (Miss.), 113 So. 720, 724; McCain v. Cochran (Miss.), 120 So. 823.
The motion for a new trial should have been granted.
The evidence was insufficient to support the verdict on liability, except under the "scintilla of evidence rule", which does not prevail here.
Gulf M. & N. R. Co. v. Brown, 143 Miss. 890, 108 So. 504; Brown v. Coley, 168 Miss. 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. 103, 83 So. 413; Cybur Lumber Co. v. Elkhart, 118 Miss. 401, 79 So. 235; Wilbourn v. Charleston Cooperage Co., 127 Miss. 290, 90 So. 9; D'Antoni v. Albritton, 156 Miss. 758, 126 So. 836; Unadilla Valley R. Co. v. Caldine, 278 U.S. 139, 73 L.Ed. 224; Hines Lumber Company v. Dickinson, 155 Miss. 764, 125 So. 93; Goodyear Yellow Pine Lumber Company et al. v. Clark, 163 Miss. 661, 142 So. 433; Seifferman v. Leach, 161 Miss. 853, 138 So. 563; Morgan Hill Paving Company v. Hollis, 160 Miss. 79, 133 So. 229; Hinton Bros. Lumber Company v. Polk, 117 Miss. 300, 78 So. 179; Y. & M. V. R. R. Company v. Lamensdorf, 180 Miss. 426, 177 So. 50; Teche Lines, Inc. v. Bounds, 179 So. 747, 182 Miss. 638; Mutual Benefit Health & Accident Association v. Johnson (Miss.), 186 So. 297; Kramer Service, Inc. v. Wilkins (Miss.), 186 So. 625; Thomas v. Williamson (Miss.), 187 So. 220; Hamilton Bros. v. Narciese, 158 So. 467, 172 Miss. 24.
The verdict and judgment are contrary to the overwhelming weight of the credible evidence.
M. & O. R. R. Company v. Johnson, 165 Miss. 397, 141 So. 581; G. & S. I. R. R. Company v. Blaylock (Miss.), 166 So. 372.
The instructions fail to correctly state the applicable principles of law.
Whittington v. Cottam, 158 Miss. 847, 130 So. 745; Jefferson v. Virginia-Carolina Chemical Corporation, 185 So. 230; Eagle Cotton Oil Company v. Sollie, 187 So. 506, 508.
McClendon & Edmonds and Barnett, Jones & Barnett, and John E. Stone, all of Jackson, for appellee.
The amended declaration in this cause stated a cause of action under the unsafe place to work doctrine and the proof introduced in evidence amply sustains the allegations of the declaration. The facts as stated in evidence in behalf of the plaintiff on the trial of this cause are substantially the same as the facts brought out in the first trial of this cause and the defendant's contention that the peremptory instruction requested by it should have been granted is answered negatively by the opinion rendered by Justice McGowan in Jefferson v. Virginia-Carolina Chemical Company, 185 So. 230.
The requested peremptory instruction was properly refused. We respectfully submit that under the evidence herein it affirmatively appears that the plaintiff and his fellow workmen were doing their work in the only way known to them to protect themselves from injury; that they were ordered to do such work in an unsafe and a negligent manner, and were deprived of employing such a safe method on pain of discharge for refusal so to do.
It is evident that the defendant's foreman knew and realized that plaintiff and his fellow workers were following a simple safe method of work and that although he may not have had actual notice that they had agreed on and promulgated a rule in certain words, still he was charged with notice that the workmen, including the plaintiff, were doing their work in the only safe way known to them.
Jefferson v. Virginia-Carolina Chemical Company, 185 So. 230.
The simple question involved in this case is whether or not negligence arose on the part of the defendant because of the fact that it stopped the only safe method known to the employees to use for their own protection under the existing circumstances as shown by the evidence without substituting some reasonable method by which an employee on the outside would be warned that another employee was coming from the inside.
Coast Ship Company v. Yeager, 120 Miss. 152, 81 So. 797.
The fellow servant in this case was acting directly under orders, and was forced to discontinue the use of the discretion which he had been exercising, and, to use the words of this court on the former appeal: "Nor is the negligence of the fellow servant in obeying the direct order of the master to be charged to the servant so as to relieve the master who is negligent in the first instance."
Under the testimony in this record a clear-cut issue of fact was raised regarding the purported release which must necessarily have been determined by the jury.
The court properly overruled the motion for a new trial.
Plaintiff's evidence is clear and it is strongly corroborated by witnesses in his behalf. It is apparent that appellant's discussion of the scintilla of evidence rule is entirely out of place in the consideration of the case before the court. While there is considerable conflict in the testimony, the case made out by the plaintiff is both clear and convincing and was accepted by the jury as most worthy of belief.
It requires no citation of authorities to substantiate the fact that it is the province of the jury to determine the credibility of the witnesses and the weight of their testimony. On the motion for a new trial it was the duty of the court to determine whether or not the verdict was supported by a preponderance of credible evidence. Appellee's case is further strengthened by the fact that to the verdict of the jury is added the weight of the opinion of the court that the verdict was supported by a preponderance of credible evidence.
The instructions correctly state the principles of law applicable in this case.
Wilbe Lumber Company v. Calhoun, 163 Miss. 80, 140 So. 680; Albert v. Doullut and Ewin, Inc., 180 Miss. 626, 178 So. 312; Tatum v. Crabtree, 130 Miss. 462, 94 So. 449; Brown v. Coley, 168 Miss. 778, 152 So. 61; Jefferson v. Virginia-Carolina Chemical Company (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, 187 So. 506.
The opinion in Jefferson v. Virginia-Carolina Chemical Company, 185 So. 230, is controlling on all points involved, with the exception of the questions of the validity of the release and whether or not the action of the court in giving and refusing instructions was proper. The question of the validity of the release was, under the evidence, for the jury to decide.
Argued orally by Henry Edmonds for appellee.
The case presented on this appeal is substantially the same in all material particulars, so far as the testimony on behalf of the appellee is concerned, as that...
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