Waterford Lumber Co. v. Jacobs

Decision Date02 July 1923
Docket Number22641
Citation97 So. 187,132 Miss. 638
CourtMississippi Supreme Court

Division B

Suggestion of Error Overruled July 21, 1923.

APPEAL from circuit court of Wayne county, HON. J. D. FATHEREE Judge.

Action by J. E. Jacobs against the Waterford Lumber Company. From a judgment for plaintiff, defendant appeals. Reversed and remanded.

Case reversed and remanded.

Stevens & Heidelberg and Ambrecht, Hand & Meredith for appellant.

I. The proof shows that at the time the plaintiff was injured he had abandoned his employment and had undertaken to perform a duty which was without the scope of his employment, and that in the doing of this act he became and was a mere volunteer and that the master, under the circumstances, owed him no duty other than not to wilfully or wantonly injure him. Gulfport and Mississippi Coast Traction Co. v. Faulk, 118 Miss. 894, 80 So. 340; Whitton v. South Carolina & G. Railroad Company, 106 Ga. 796, 32 S.E. 857; Central of Georgia Railway v. McWhorter, 115 Ga. 476, 42 S.E. 82; Labatt's Master and Servant, sections 1561, 1565, and 1566; Mandel v. Wheeler, 59 Ill.App. 459. This doctrine has been upheld in practically every state of the Union. See Fowler v. Brooks, 65 Kan. 861; Ellsworth v. Methenay, 104 F. 44; Southern Ry. Co. v. Guyton, 25 So. 34; Boyds v. Blumenthal, 52 A. 330, 3 Pennewill 564; Punkowski v. Newcastle Leather Company, 57 A. 599, 4 Pennewill 544; Allen v. Hixson, 36 S.E. 810, 111 Ga. 460; Cleveland, etc. Ry. Co. v. Carr, 95 Ill.App. 576; Bowling Green 1. Capshaw, 64 S.W. 507, 23 Ky. Law. Rep. 945; Louisville & Nashville Railroad Company v. Hocker, 111 Ky. 707, 64 S.W. 638, 23 Ky. Law Rep. 982, 65 S.W. 119; 23 Ky. Law Rep. 1174; Mitchell Tranter Co. v. Ehmett, 65 S.W. 835, 53 Ky. Law Rep. 1788, 55 L. R. A. 710; Stagg v. Edward Weston Tea & Spice Co., 169 Mo. 489, 69 S.W. 391; Duval v. Armour Packing Co., 95 S.W. 978, 119 Mo.App. 150; Pfeffer v. Stein, 50 N.Y.S. 516; Durst v. Bronley Brothers Carpet Company, 57 A. 986, 208 Pa. 573.

II. The plaintiff, by the form of pleadings selected by him, saw fit to have issue joined in this case on the four distinct elements of negligence, which he charged in the various counts of his declaration as being the proximate cause of his injury. The defendant was called upon to meet that issue and that issue only, and was entitled to have the jury told, as a matter of law, in so far as that case was concerned, that the plaintiff could not recover because of a failure on the part of the defendant to furnish an engine since the plaintiff had not sued because of failure to furnish an engine.

III. It was error to instruct the jury that "if you believe that the plaintiff was guilty of contributory negligence, still, under the law this shall be no defense in this case, if your further believe from the evidence that the defendant was guilty of negligence which proximately contributed to plaintiff's injury." This instruction does not say that contributory negligence will not bar a recovery, and, had the instruction said that it would not bar recovery, it would have been eminently correct, but the instruction says that it shall not be a defense in the case. As a matter of fact, contributory negligence is a defense. It is a defense to the extent that it will bar the right of the plaintiff to recover for the proportion of the damages which is attributable to his own negligence. It is a partial defense, and yet the instruction in this case tells the jury that it is no defense whatever.

The supreme court of North Dakota, in Scott et al. v. The District Court of the Fifth Judicial District for Barnes County, et al., 107 N.W. 61, defines the word "defense" as follows: "A defense is any fact or state of facts which will defeat in whole or in part a cause of action." Baier v. Hempall, 16 Nebr. 127, 20 N.W. 108; Bush v. Prosser, 11 N.Y. 347; Foland v. Johnson (N. Y.), 16 Abb. Prac. 235, 239; Utah & N. Ry. Co. v. Crawford, 1 Idaho, 770-773; McKyring v. Burr, 16 N.Y. 297, 69 Am. Dec. 696; Wehle v. Butler, 43 How. Pr. (N. Y.) 5, 15; Illinois Central Railroad Company v. Archer, 113 Miss. 158, 74 So. 135, is in no way in conflict with our views, with reference to this instruction. The court in Mississippi Central Railroad Company v. Lott, 118 Miss. 816, 80 So. 277, approved an instruction which told the jury that contributory negligence is no longer an absolute defense, where the instruction went on further and told the jury the effect of contributory negligence, and told the jury that the plaintiff's damages should be diminished in proportion to the amount of negligence attributable to him, but this is far different from the case at bar.

IV. When the plaintiff himself was on the witness stand, he was asked whether he would be willing for the physicians who examined and treated him, after the accident, for his injuries, to come before the jury and tell what they knew about the case. The court refused to permit him to answer this question even out of the hearing of the jury. We were entitled to have the question answered by the witness. It was not the lawyer's privilege to permit these physicians to testify or not to testify as they saw fit. It was the privilege of the plaintiff himself. The purpose of section 3695 of the Code of 1906, which makes all communications to a physician or a surgeon privileged and which prevents their disclosure thereof, except at the instance of the patient, is for the protection of the patient himself. In this case, the plaintiff had already exhibited his injuries to the jury. He had told the jury about them and the extent of them, and, even after this question was asked, he introduced two physicians and proved by them the nature and extent of his injuries. See W, O. W. v. Farmer, 77 So. 655; McCall v. Turner, 88 So. 705.

V. Even if it be conceded for the sake of argument that the defendant was negligent in all of the particulars claimed in the declaration, still, the proof in this case shows that these alleged acts of negligence were not the proximate causes nor the contributing causes to the man's injury, but that his injury was due solely to the improper method selected by him of loading the car and of stopping the car. If an independent, intervening cause is responsible for the injury, then, the master is not liable, even though prior thereto he might have been guilty of negligence. This is true even though the independent, intervening cause may not have been negligence on the part of the servants. Minor v. King, 72 Miss. 12, 16 So. 245; Rook v. A. & V. Railroad Company, 28 So. 821, 78 Miss. 97; Cumberland Telephone & Telegraph Co. v. Woodham, 54 So. 890; Illinois Central Railroad Company v. Wooley, 28 So. 26; Billingsley v. Illinois Central Railroad Company, 56 So. 791.

H. Cassedy Holden, Martin V. B. Miller, and A. G. Busby, for appellee.

I. SCOPE OF EMPLOYMENT. Appellant contends that appellee was not acting within the scope of his employment at the time he was injured; that his duties were strictly supervisory in loading the lumber on the car; that in performing manual labor in moving and stopping the car he went beyond the limit of his duties as foreman, or boss of the job. Plaintiff added his physical strength to theirs; he himself took in hand that part of the work which required the most skill and intelligence--the chocking of the car. Not only did he have a right to do these things; he was compelled, by the exigencies of the task, to do them. His manual and expert services were indispensable. The scope of a servant's employment is to be defined by what he was employed to perform, and by what, with the knowledge and approval of the master, he did perform, rather than by mere verbal designation of his position. Rummell v. Dillworth, 111 Pa. 343, 2 A. 355; 18 R. C. L., 580, par. 86; Stone v. Boscawen Mills (N. H.), 52 A. 119; Sanders v. Houston & L. C. R. Co. (Tex.), 93 S.W. 139; Union Pacific R. Co. v. Brerton, 218 F. 593, 134 C. C. C. 321; Harvey v. T. & P. R. Company, 166 F. 385, 92 C. C. A. 237. Affirmed 57 L.Ed. 852; L. N. R. Co. v. Chamblee (Ala.), 54 So. 681; Southern Marble Company v. Faucett (Ga.), 86 S.E. 1092; Hitchcock v. Artic Creamery Company, (Iowa), 150 N.W. 727; Stoneyfork Coal Company v. Lingar (Ky.), 153 S.W. 6; Dagis v. Walworth Mfg. Co. (Mass.), (L. 3 N.E. 620.); Yongue v. St. Louis & S. F. R. Co. (Mo.), 112 S.W. 985; Nelson v. Northern Pacific R. Co. (Mont. ), 140 P. 388; Martin v. New Jersey St. R. Co. (N. J.), 80 A. 477; Blackburn v. Cherokee Lumber Co., (N. C.) 67 S.E. 915; Dixon v. Chiquola Mfg. Co. (S. C.), 68 S.E. 643; Missouri, K. & T. R. Co. v. Balliat (Tex.), 107 S.W. 906; Warren v. Townley Mfg. Co. (Mo.), 155 S.W. 850; Magee v. Mississippi Central R. Co., 95 Miss. 678, 48 So. 723; Belzoni Hardwood Lumber Company v. Langford, 89 So. 919. See also Sea Food Co. v. Alves, 117 Miss. 1, 77 So. 857. The case of Gulfport & Mississippi Coast Traction Co. v. Faulk, 118 Miss. 894, 80 So. 340, relied upon by the appellant, in this connection, is entirely different from the case at bar.

II. CONTRIBUTORY NEGLIGENCE. It is insisted that it was error to advise the jury that contributory negligence was "no defense" in the case. But the defense of contributory negligence as a bar to recovery has been abolished in this state. Hemingway's Code, sections 502 and 503 annotated Hemingway's Code Supplement of 1921, sections 502 and 503; Cumberland Tel. Co. v. Cosnahan, 105 Miss. 615, 62 So. 824; Lindsey Wagon Co. v. Nix, 108 Miss. 814, 67 So. 459; Illinois Central R. Co. v. Thomas, 109 Miss. 539, 69 So. 773; Illinois Central R. Co. v. Archer, 113 Miss. 158, 74 So. 135; Sea Food Co. v. Alves, 117 Miss. 1, 77 So. 857; Miss. Central R. Co. v. Lott, 118 Miss. 816, 80 So. 277; Gulf & Ship Island...

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