Opinion
No. 32638.
March 29, 1937.
1. MASTER AND SERVANT.
Lumber company held not liable for injuries received by employee who was thrown from top of load of baled hay on which he had been riding at request of fellow employee to prevent any of the bales from becoming dislodged when he was caught by telephone wire stretched across private inclosure of dairy farm where lumber company intended to store hay.
2. TELEGRAPHS AND TELEPHONES.
Telephone company which had agreed to make connection at certain point with telephone lines constructed, owned, and maintained by farmers held not liable for injuries received by employee of lumber company who was thrown from top of load of hay on which he had been riding when he was caught by farmer's telephone line stretched across private driveway.
3. TELEGRAPHS AND TELEPHONES.
Only reasonable care is required in maintenance of ordinary telephones which carry no dangerous voltage of electricity.
4. TELEGRAPHS AND TELEPHONES.
Degree of care required in maintenance of telephone lines to be regarded as reasonable must be proportionate to danger that may be reasonably apprehended at particular location.
5. TELEGRAPHS AND TELEPHONES.
Telephone lines crossing a highway must be high enough for usual and ordinary travel in that area, including usual and ordinary commercial uses of highway, but are not required on pain of liability to be high enough for extraordinary travel as to which traveler must keep a lookout (Code 1930, sec. 7061).
6. TELEGRAPHS AND TELEPHONES.
Farmer, in erecting and maintaining telephone wire across private way, was not required to anticipate and provide for that full extent of height required of a general public highway as regards liability for injuries sustained by employee of lumber company when thrown from top of load on which he was riding when caught by telephone wire.
7. TELEGRAPHS AND TELEPHONES.
Farmer who maintained telephone wire across private driveway held not liable for injuries received by employee of lumber company engaged in transporting baled hay to farm storage house when employee was caught by telephone wire stretched across driveway and thrown from top of load of baled hay on which he was riding.
APPEAL from circuit court of Lincoln county. HON. J.F. GUYNES, Judge.
Green, Green Jackson, of Jackson, and F.D. Hewitt, of McComb, for appellant.
Directed verdict as to the Southern Bell Telephone Telegraph Company was erroneous.
The line was used by the Telephone Company to service the other defendants, as subscribers, and they paid the customary rental therefor. Therefore, the line that caused the injury was constructed and used for the joint benefit of the Telephone Company and the other defendants, and thereunder, the Telephone Company is jointly liable for the injury to the plaintiff caused by the wire which was under the control of the Telephone Company, whether it admits it or not.
North Arkansas Tel. Co. v. Peters, 148 S.W. 273, 103 Ark. 564; Western Union Tel. Co. v. Owens, 23 Ga. App. 169, 98 S.E. 116; Ga. Ry. Elec. Co. v. Tompkins, 138 Ga. 596, 75 S.E. 664; Orr v. Dawson Tel. Co., 133 S.E. 924; Locke v. Pacific Tel. Tel. Co., 33 P.2d 1077; Eads v. Galt Tel. Co., 199 S.W. 710; Imman v. Home Tel., etc., Co., 105 Wn. 234, 177 P. 670; Rose v. Missouri Tel., etc., Co., 328 Mo. 1009, 43 S.W.2d 562; Miller v. Phipps, 161 Miss. 564, 137 So. 479; Thomas v. Rounds, 161 Miss. 713, 137 So. 894; Westerfield v. Shell Petroleum Corp., 161 Miss. 833, 138 So. 561; II Restatement of the Law of Torts, pages 833, 834, sec. 307.
In the instant case, it is undisputed, nay boasted, that the Telephone Company, after having assumed to use the wire that caused the injury, has made no inspection and attempted no correction of the dangerous condition described, for a period of at least fifteen years.
II A.L.I., Restatement of the Law of Torts, page 807, sec. 300; Nelson v. I.C.R.R. Co., 98 Miss. 295, 53 So. 619, 31 L.R.A. (N.S.) 689; 62 C.J. 1135; 1 Cooley, Torts (3 Ed.), page 346; Sections 605, 606, 7061, 7067, Code of 1930; Cumberland Tel. Tel. Co. v. Hobart, 89 Miss. 252, 42 So. 349, 119 A.S.R. 702.
That a telephone company is required to make reasonable inspection of the lines served by it so as to comply with the requirement of ordinarily reasonable care, see the case of Dow v. Town of D'Lo and Southern Bell. Tel. Tel. Co., 152 So. 474.
Persons who mutually operate and control for their mutual benefit a particular instrumentality, are jointly and severally liable for their torts.
North Arkansas Tel. Co. v. Peters, 148 S.W. 273, 103 Ark. 564; Thomas v. Rounds, 161 Miss. 713, 137 So. 894; Levy v. McMullen, 169 Miss. 659, 152 So. 899: Miss. Power Light Co. v. Smith, 153 So. 379; Miss. Central R.R. Co. v. Roberts, 160 So. 604.
Even though there is no liability as to the Southern Bell Telephone Telegraph Company, yet the court erroneously directed verdict for other defendants.
The negligence of Mrs. Vernon in failing to maintain the telephone wire so that it would not sag across the driveway at such a low height as to drag those riding on vehicles from such vehicles using said driveway, and the negligence of the Lincoln County Lumber Company, through Jim Evans in directing the plaintiff to ride on top of the hay in a place that Jim Evans and the Lincoln County Lumber Company should have known was dangerous, and in the failure of Jim Evans to warn the plaintiff as he drove under the wire of the danger that there existed, and which he should have seen, are joint acts of negligence for which they both are liable.
Nelson v. I.C.R.R. Co., 98 Miss. 295, 53 So. 619, 31 L.R.A. (N.S.) 689; 62 C.J. 1135; Daniel v. Jackson Infirmary, 163 So. 447; Hooks v. Mills, 101 Miss. 91, 57 So. 545; Miss. Central R.R. Co. v. Mason, 51 Miss. 234; Southern R.R. Co. v. Floyd, 99 Miss. 519, 55 So. 287; Bonelli v. Branciere, 127 Miss. 556, 90 So. 245; Bell v. Southern R.R. Co., 87 Miss. 234, 30 So. 821; Laurel, etc., v. Railroad Co., 87 Miss. 675, 40 So. 259; Gulf, etc., R.R. Co. v. Cole, 101 Miss. 411, 58 So. 208; Patton v. Texas Pac. R.R., 179 U.S. 660, 45 L.Ed. 363; The Gow Co. v. Hunter, 168 So. 264.
As to the liability of Mrs. Vernon we submit that the foregoing authorities are sufficient when considered with this record to support our contention that as to her liability this was a case for the determination of a jury.
We also submit that these authorities are sufficient to establish a prima facie case against Lincoln County Lumber Company if Mr. Jim Evans was the superior employee at the time of the accident. It is undenied that Mr. Evans had the right to direct the plaintiff in this case where to ride, and having directed him to ride in a place that he should have known was dangerous, and in failing to warn of the approaching danger there was presented a case for a jury to say whether the Lincoln County Lumber Company was liable.
Barron Motor Co. v. Bass, 167 Miss. 786, 150 So. 202; G. M.N.R. Co. v. Brown, 143 Miss. 890, 108 So. 503. Hugh v. Wall, of Brookhaven, for appellees, Lincoln County Lumber Company, J.F. Vernon and Mrs. J.F. Vernon.
Directed verdict in favor of the defendant J.F. Vernon was proper.
Directed verdict in favor of the Lincoln County Lumber Company was proper.
The burden of proof is on the appellant to show by the testimony that the Lincoln County Lumber Company, by some act or omission, violated a duty encumbered upon it from which the injury followed in natural consequence.
Mitchell v. Chicago R.R. Co., 47 Am. Rep. 566; Wabash Railroad Co. v. Locke, 2 Am. Rep. 193.
We submit that there was no way for the Lincoln County Lumber Company to anticipate that the appellant would be on top of the load of hay and there was no way for it to anticipate that the truck would go under a wire at Oak Hill Farm and there was no way for it to anticipate that the wire would be low enough to contact the appellant and drag him off of the hay and, measuring negligence by what a reasonably prudent person would have anticipated, we submit that there is no negligence shown in this case on the part of the Lincoln County Lumber Company, and if there is no negligence shown, there can be no recovery.
Beatty v. Central Iowa R.R. Co., 58 Iowa, 242, 8 Am. Eng. R.R. Cases, 210; McComb Box Co. v. R. Matt Duck, 174 Miss. 449.
The evidence must establish circumstances or there must be some reasonable inference from the evidence adduced that the injury resulted from the want of some precaution which the appellee, the Lincoln County Lumber Company, ought to have taken, which we submit the evidence in this case did not show or even tend to show.
Hayes v. Michigan R.R. Co., 101 U.S. 228; Metropolitan R.R. Co. v. Jackson, L.R. 3 App. C. 193; 20 R.C.L. 56, sec. 52.
Lincoln County Lumber Company was entitled to directed verdict for the further reason that the appellant and Jim Evans were fellow servants.
2 Words Phrases (2 Ed.), page 480; Gwin v. Carter, 158 Miss. 196; Russell v. Williams, 168 Miss. 181; Petroleum Iron Works v. Bailey, 124 Miss. 11; Barron Motor Co. v. Bass, 167 Miss. 786; Great Southern Lbr. Co. v. Hamilton, 137 Miss. 55.
There is no liability on the part of Mrs. J.F. Vernon and directed verdict for her was proper.
The owner is not an insurer of persons on the premises even when he has invited them to enter.
20 R.C.L. 56, sec. 52.
There can be no liability against Mrs. Vernon in this case because the evidence does not show that the wire was in a dangerous condition to such an extent as would impart knowledge to her that persons coming into the premises would be injured, and the evidence in this case does not rise to that dignity, and for that reason there can be no liability against her.
20 R.C.L., sec. 48.
Butler Snow, of Jackson, for appellee, Southern Bell Telephone Company.
The Telephone Company had no title, control or supervision over the farmer's line and telephones east of Cameron's store and was under no duty to inspect or maintain the same.
S.W. Tel. Co. v. Corbitt, 148 S.W. 826; San Antonio Gas E. Co. v. O'Con, 39 L.R.A. (N.S.) 1046; Fickeisen v. Wheeling Elec. Co., 27 L.R.A. (N.S.) 893; Minnesota E.L. P. Co. v. Hoover, 229 P. 285; Ala. Power Co. v. Jones, 101 So. 898; Okmulgee Gas Co. v. Kelly, 232 P. 428; Gallager Waynesboro Mutual Tel. Co., 130 413 S.E. 232; Martin v. Appalachian E. P. Co., 153 S.E. 245; Sutton's Admr. v. Ky. Utilities Co., 53 S.W.2d 711; Locke v. Pacific Tel. Co., 33 P.2d 1077; Western Union Tel. Co. v. Owen, 98 S.E. 116; Cumberland Tel. Tel. Co. v. Laird, 171 S.E. 386; Burke v. Shaw, 59 Miss. 443; Saenger Amusement Co. v. Murray, 128 Miss. 782, 91 So. 459; 20 R.C.L. 52 and 53; 62 C.J. 67; 3 Thornton on Oil Gas, sec. 1093, page 1493; S.W. Tel Co. v. Corbitt, 148 S.E. 826; North Arkansas Tel. Co. v. Peters, 103 Ark. 564, 148 S.W. 273; Orr v. Dawson Tel. Co., 133 S.E. 924; Canyon Power Co. v. Gober, 192 S.W. 802; Locke v. Pacific Tel. Co., 33 P.2d 1077.
We fail to see the relevancy of sections 7061 and 7062, Mississippi Code of 1930. The Telephone Company did not construct the line. Besides the injury did not occur on a public highway. The accident happened on the private property of Oak Hill Dairy Farm in a private driveway between the office and the residence situated thereon.
Section 7067, Mississippi Code of 1930, sheds no possible light on this controversy. That section and the next section relate to voluntary consolidations, under certain circumstances, of telephone exchanges with the consent of municipalities involved and the Mississippi Railroad Commission.
Negligence necessarily involves a violation or disregard of some duty, which is known to the person charged therewith, or which would have been discovered by the exercise of due care.
45 C.J. 651.
The Telephone Company, even if required to inspect the farmer's line was only bound to use such care and make such inspection as a reasonable and prudent person similarly situated would have made. It was not an insurer.
Dr. Pepper Co. v. Gordy, 174 Miss. 392; Williams v. Lumpkin, 169 Miss. 146; Y. M.V. v. Hawkins, 159 Miss. 775; Meridian Terminal Co. v. Stewart, 143 Miss. 523; Town of Union v. Heflin, 104 Miss. 669; Cohea v. Coffeeville, 69 Miss. 561; Dow v. D'Lo, 169 Miss. 240; 45 C.J. 651.
There is not a word of evidence showing, or tending to show, that the line at the point in question was originally constructed too low, when it sagged, or how long it had been down, or whether it had been down such a length of time as its condition would have been discovered by the exercise of ordinary and reasonable care. And, hence the motion of the Telephone Company for a directed verdict should have been sustained in any event.
Argued orally by Forrest B. Jackson, for appellant, and by George Butler, for appellee.
The defendants in the circuit court were Mrs. J.F. Vernon, the owner and operator of the Oak Hill Dairy Farm, located about five or six miles east of Brookhaven; the Lincoln Lumber Company, a domestic corporation, and the Southern Bell Telephone Telegraph Company, which operated telephone exchanges and maintained lines for that purpose in that county. The latter company owned and maintained a telephone line from Brookhaven to Cameron's Store, about four miles east of Brookhaven. At Cameron's Store the telephone company had made the necessary arrangements and furnished the necessary service for connection with and the accommodation of rural or farmer's telephone lines, to be constructed from said store in various directions into the surrounding rural community. These rural or farmer's lines were constructed, owned, and maintained by the farmers themselves, and the telephone company had no contractual obligation in respect to them other than to make the proper connections at Cameron's Store and in its exchange in Brookhaven for the transmission of messages from or to these privately owned rural lines.
Among those owning and maintaining a rural line from Cameron's Store was the said Oak Hill Dairy Farm. In the business of the farm two telephones were used, one in the main residence and the other in the office, a short distance from the residence. The wire which connected the residence and the office crossed a driveway within the private inclosure of the dairy farm. Within this inclosure was a large storage house, suitable for the reception and storage of hay. The lumber company operated a commissary and, among other things, it handled baled hay in large quantities. At the time of the injury complained of, the lumber company had received a shipment of baled hay and had arranged with the dairy farm to store this hay in the above-mentioned farm storage house. This arrangement appears to have been one of long standing, or at least for a year. On the day in question appellant, an employee of the lumber company, in conjunction with another employee of the same company, was engaged in transporting baled hay from the railroad cars in Brookhaven to this dairy farm storage house.
A large motortruck was used for the stated purpose, and the usual practice pursued by the two employees aforementioned was to place on the truck 40 to 50 bales of hay, and when thus loaded they would fasten the hay to the truck by the use of a rope which, according to the undisputed testimony, had always, until the particular trip in question, been found sufficient to hold the hay in position and to allow the two employees to ride in the cab of the truck while on the way to the farm. But on this particular occasion the bales seemed to be, or become, insecure and in danger of falling from the truck, whereupon appellant's coemployee directed appellant to get on the top of the load and to ride there so as to prevent any of the bales from becoming dislodged. Appellant complied with this direction, and while riding on top of the load, the truck entered the private inclosure of the dairy farm, and as the truck passed between the residence and the office, the telephone wire between those two points caught appellant under his arm, and he was thereby thrown from the loaded truck and seriously injured. An action was brought by him against the defendants aforesaid, upon the allegation that they were joint tort-feasors and liable to him in damages for the injuries. At the trial, the circuit judge directed a verdict in favor of all the defendants and dismissed the action; and upon a careful review of the facts and the applicable rules of law, we think the course taken by the court was correct.
The lumber company is not liable for several reasons; but it is sufficient in this connection to cite the case, Gulfport Mississippi Coast Traction Co. v. Faulk, 118 Miss. 849, 80 So. 340. See, also, Buckley v. United Gas Public Service Co. (Miss.), 168 So. 462.
The telephone company is not liable because it did not construct nor own the telephone line here in question nor any of the equipment east of Cameron's store; had no control or supervision over it, and had made no contract, express or implied, to inspect or maintain it. Any attempt by the telephone company to interfere would have been an assumption. Since, then, the telephone company did not erect this particular line and had no authority or control over the wire in question, it could have no liability in respect to its physical condition or situation. Before a party can be held liable for a given condition or situation, that party must have the power and authority to remedy it, for it is no less than a truism that a party has no duty to do a thing which he is without lawful power or authority to do, and that there is no liability where there has been no breach of legal duty.
The only serious question is as to the liability of Mrs. Vernon, the owner of the premises, and who maintained the wire which caused the injury. The highest degree of care is required of transmission lines charged or likely to be charged with a dangerous voltage of electricity, but the degree of care imposed upon ordinary telephone lines, which carry no such current, is reasonable care. The rule is also that the degree of care in order to be regarded as reasonable, in respect to such lines, must be proportionate to the danger that may be reasonably apprehended at the particular location. 62 C.J. 60, 61. Thus, greater care is required where the telephone wires are over a principal street or an important highway used for a wide variety of transportation, as compared with a highway in some sparsely settled district in the country. Id., p. 60. And upon similar reasoning, still less a degree of care is required where the wire is over a driveway within a private inclosure, not a public highway at all, and where vehicles with more than the usual height or load — as compared with vehicles in general use and general average of load — are reasonably expected to proceed with care and with some circumspection as to the arrangements within such private inclosure.
Telephone and telegraph lines crossing a highway must be high enough for the usual and ordinary travel in that area, including the usual and ordinary commercial uses of the highway, but they are not required on pain of liability to be high enough for extraordinary travel, as to which the traveler must keep a lookout. 62 C.J., p. 59. This rule is recognized by our statute, section 7061, Code 1930, which uses the language that such wires may be carried across public highways in such manner as not to "interfere with the common use of such roads," etc. But the roadway here in question was not a public thoroughfare but was a private way, and the owner of the premises was not required to anticipate and provide for that full extent of height required of a general public highway. But if she were, there is no testimony in this record showing the height to which the bales of hay were loaded on this truck. It has already been mentioned that there were 40 or 50 bales on the truck, but how high this made the load no witness says; and no witness undertakes to say that the height was or was not unusual as compared to the general or even the reasonably exceptionable experiences in such heights of loads in that part of the country. It may have been, so far as the evidence shows, that the height exceeded that of the usual and ordinary travel even for commercial purposes; and besides this, there was the plaintiff sitting on top of this load which he himself says had never happened before. Was the owner of the private premises required to anticipate and provide against unusual heights of loads and in addition to this that a person would be sitting or standing on top of such a load? We think the rule could not reasonably and justly so require of her, and that she is not liable here.
Affirmed.