Virginia-Carolina Chemical Co. v. Jefferson, 33892

• Court: Mississippi Supreme Court
• Writing for the Court: McGehee, J.
• Citation: 186 Miss. 861,192 So. 306
• Parties: VIRGINIA-CAROLINA CHEMICAL CO. v. JEFFERSON
• Decision Date: 27 November 1939
• Docket Number: 33892

192 So. 306

186 Miss. 861

VIRGINIA-CAROLINA CHEMICAL CO.
v.
JEFFERSON

No. 33892

Supreme Court of Mississippi, Division B

November 27, 1939

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...