Opinion
No. 32798.
June 7, 1937. Suggestion of Error Overruled July 1, 1937.
1. ELECTRICITY.
Public utility corporations in handling and controlling electricity are held to highest degree of care which skill and foresight applicable to that business can obtain.
2. NEGLIGENCE.
One who possesses or manages dangerous article or agency, such as electricity, explosives, and the like, must use highest degree of care and caution in guarding third persons against danger in respect to such articles or agencies so far as danger is not too remote according to usual experiences of mankind.
3. ELECTRICITY.
Operator of gin, whose servants knew of presence of farmer near high voltage conductors in vicinity of defective motor, was liable for farmer's death by electrocution from short circuit through such conductors and farmer's body, whether farmer who was ignorant of high voltage electricity, was invitee, licensee, or trespasser, since servants had duty to exclude or warn farmer.
APPEAL from the circuit court of Madison county. HON. JULIAN P. ALEXANDER, Judge.
Watkins Eager, of Jackson, Powell Powell and Ray Spivey, all of Canton, for appellant.
The deceased was not an invitee with respect to the place he was injured, but at best a licensee and to whom appellant owed no duty other than to refrain from wilful and wanton injury.
Murry Chevrolet Co. v. Cotton, 169 Miss. 521, 152 So. 657; Y. M.V.R.R. Co. v. Mansfield, 160 Miss. 672, 134 So. 577; Ingram-Day Lbr. Co. v. Harvey, 98 Miss. 11, 53 So. 347.
Evans, the ginner, had no authority whatsoever to bind this appellant so as to make Leach the legal invitee of appellant.
We, therefore, earnestly submit that Evans was utterly without any authority from appellant to extend any permission to Leach to come inside the gin house, and the master is not liable for any resultant injury therefrom.
Robertson v. Y. M.V.R.R. Co., 152 Miss. 333, 118 So. 181; Vargas v. Blue Seal Bottling Works, 126 So. 707; McCarty v. Mitchell, 169 Miss. 82, 151 So. 567; Lawand v. California Products Co., 48 P.2d 979; Kress Co. v. Markline, 117 Miss. 37, 77 So. 858.
There was no possible reason or justification for Mr. Leach having entered into the gin house where the machinery and electric motor was situated. He doubtless did enter solely to see what was going on, or out of curiosity, but this by no means is sufficient to create the status of invitee with respect to this appellant. If the judgment of the lower court is correct, it would mean that in and about the thousands of places where dangerous machinery is necessarily maintained and repair work going on that any third person permissively entering the premises at the instance of an employee, and receiving injuries while thus engaged, could hold the owner liable in the absence of wilful and wanton injury. Such a rule, we respectfully submit, would be both unreasonable and unjust and impose upon the owner a burden which he is not called upon under the law to carry.
Castonguary v. Acme Knitting Machine Needle Co., 136 A. 702; A.L.I. Restatement, Torts, page 940; Restatement, Agency, page 544; McLaurin v. McLaurin Furniture Co., 166 Miss. 180, 146 So. 877; Trico Coffee Co. v. Clemens, 168 Miss. 748, 151 So. 175.
Assuming solely for the sake of the argument that the deceased was an invitee, his fatal injuries were occasioned alone by reason of his own voluntary exposure to danger at a time when he was as fully acquainted with the situation as anybody else.
20 R.C.L. 56, par. 52; A.L.I., Restatement, Torts, page 930; Wilbourn v. Charleston Cooperage Co., 127 Miss. 290, 90 So. 9; Shafer v. Tacoma Eastern R. Co., 157 P. 485; I.C.R. Co. v. Cathey, 70 Miss. 332; I.C.R. Co. v. Jones, 16 So. 300; Hinton Bros. Lbr. Co. v. Polk, 78 So. 179, 117 Miss. 300; Owen v. I.C.R. Co., 24 So. 899; Gulfport Creosoting Co. v. White, 171 Miss. 127, 157 So. 86; Lampton v. Atkins, 129 Miss. 660, 92 So. 638.
If deceased was assisting Evans the appellant is not liable because thereby he placed himself in the position of a fellow servant.
Beale Strayhorn v. Clayborn, 152 Miss. 681, 120 So. 812; Greer v. Pierce, 167 Miss. 56, 147 So. 303; Great Southern Lbr. Co. v. Hamilton, 137 Miss. 55, 101 So. 787; N.O.J. G.N.R. Co. v. Hughes, 49 Miss. 258; Harper v. Public Service Corp. of Miss., 170 Miss. 139, 154 So. 266; Buckley v. United Gas Public Service Co., 176 Miss. 282, 168 So. 462.
Barbour Henry, of Yazoo City, and White McCool, of Canton, for appellee.
Whether deceased was an invitee or mere licensee, there was a deliberate violation of the duty not to render the premises dangerous and unsafe, after knowledge of decedent's presence.
Even if deceased was a curiosity seeking trespasser, in moving from that part of the premises to which he had been expressly invited by a public ginner to another part of the premises, where he had not been expressly invited, but where his presence was known, there was liability for changing without warning the harmless situation into one of deadly peril.
The negligence of appellant through its representative, Evans, was so gross and his conduct so reckless as to constitute that degree which imposes liability even to a mere trespasser, under the recent decisions of this court.
Appellee was entitled to peremptory instruction instead of appellant.
Murray Chevrolet Co. v. Cotton, 169 Miss. 521; Trico Coffee Co. v. Clemens, 168 Miss. 748; Rogers v. Lewis, 144 So. 373.
A principle stated in nearly every case cited by appellant, and one that is universally recognized, is to the effect if there is mutuality of interest as between the owner of the premises and the licensee, there is a clear duty to exercise reasonable care to prevent the premises from becoming unsafe. The principle is strikingly applicable here. The deceased and appellant had a mutual interest in getting the gin running, or at least ascertaining the cause of and length of delay by the breakdown. The interest of deceased was to get the balance of his bale of cotton ginned, or ascertain if it was necessary to move it to another gin. The interest of appellant was the same in the promotion of its business as a public ginner. It was in recognition and furtherance of this mutual interest that deceased was invited into, and went into, the gin.
Owens v. Y. M.V.R.R. Co., 94 Miss. 378; Robertson v. Y. M.V.R.R. Co., 152 Miss. 333.
It is undisputed that deceased's mission to gin his cotton had not terminated, and he was still waiting on the premises for this to be done.
Petree v. Davidson, 118 S.E. 697; 45 C.J. 808, 812; Belzoni Hardwood Lbr. Co. v. Langford, 127 Miss. 234; Knight v. Farmers, etc., Gin Co., 159 Ark. 423, 252 S.W. 30; North Texas Constr. Co. v. Crawford, 39 Tex. Civ. App. 56, 87 S.W. 223.
One who hauls cotton to be ginned at a public ginnery is an invitee of the owner of the ginnery.
Smith v. Jewell Cotton Mill Co., 29 Ga. App. 461, 116 S.E. 17; Ackert v. Lansing, 59 N.Y. 646; Bayley v. Curtis Bros. Lbr. Co., 124 App. Div. 496, 108 N.Y.S. 937; Gulf Refining Co. v. Moody, 172 Miss. 377.
If deceased was not an invitee, when near the generator or motor by invitation of Evans, the gin foreman, then certainly he was a licensee, and his presence was fully known and appreciated.
45 C.J. 788-791, 793-794, 796-798, 802-803; Lepnick v. Gaddis, 72 Miss. 200.
Where the presence is fully known, and acquiesced in, there is no difference in the duty owing to a licensee and to an invitee.
45 C.J., pages 803, 804; Gray v. Foundation Co., 91 So. 527.
We confidently submit the appellant was not entitled to a peremptory instruction, as this is the only error assigned and argued, we submit the judgment should be affirmed.
Argued orally by Pat Eager, for appellant, and by Jeptha Barbour, for appellee.
Appellant, on the occasion in question, was operating a public gin in the town of Canton, and for its motive power used an electric motor and an electric current of 2300 volts. Appellee's decedent was a farmer and a patron of appellant's gin. He had brought to the gin a bale of seed cotton, which was being unloaded. Suddenly the machinery was shut down, which was done because it was discovered by the foreman of the mechanical operations that the electric motor was smoking. According to the undisputed evidence, when an electric motor of the size and character of the one here under consideration is found to be smoking, it indicates that something has happened which has allowed the electric current to escape into all parts of the motor, and, in consequence, into every conductor which is in contact with any part of it. As a matter of fact, it was subsequently discovered that the trouble in this case was that one of the bearings had burned, and to such an extent as to allow the armature to drag upon the field coil.
An electrician was immediately sent for, and upon his arrival the foreman aforesaid invited appellee's decedent, and others there present, to go to the place where the motor was housed, apparently with the thought that the electrician might need aid. The motor was housed in an inclosure about six feet square, this housing being of planking for a height of about four feet, and above that was a netting of wire screen. Pending the arrival of the electrician, the foreman had partially detached the top part of the wire screen on the south side of the housing and rolled it down in such a way that part of it was brought within about six inches of actual contact with the motor.
The first thing that was done was to remove the belt from the motor in which appellee's decedent participated; and it appears that thereafter appellee's decedent went to the south side of the housing on the outside thereof and was either leaning against the wire screening or was within a few inches thereof. While appellee's decedent was in this position, the electrician gave a signal to turn on the current, which was done, and immediately there was an intense flash, and by reason of the arcing or jumping of the electric current from the motor to the wire screen and thence into and through the body of appellee's decedent, whose feet were on the ground, he was electrocuted and expired in about fifteen minutes.
In Henry v. Mississippi P. L. Co., 166 Miss. 827, 835, 146 So. 857, it was said: "It is the settled law in this state that public utility corporations in handling and controlling the subtle and extremely dangerous agency of electricity shall be held to the highest degree of care which skill and foresight applicable to that business can obtain," citing cases. "From this it follows, or rather runs concurrently with the general principle stated, that one who possesses or manages a dangerous article or agency, such as electricity, explosives, and the like, must use the same degree of care and caution in guarding third persons against danger in respect to said articles or agencies so far as the said danger is not too remote, according to the usual experiences of mankind."
The larger part of the briefs of the parties is occupied by discussions whether appellee's decedent was an invitee, a licensee, or a trespasser. In our opinion the point is immaterial in this case; for it is admitted that appellant's servants knew he was there, wherefore they were under the duty either to exclude him from the dangerous premises, or else to warn him against the danger of standing or being near enough to any of the conductors of this escaping high voltage to injure him by arcing or jumping. It was an unknown danger to him; he is shown by the positive testimony to have been entirely ignorant of high voltage electricity, and it is doubtful if one person in ten has ever heard of arcing or the jumping of a high tension electric current from object to object, such as occurred here. And thus we have but to apply the elementary principle of modern jurisprudence that "everywhere the sacredness of life and limb is the declared basis upon which the law imposes a duty of care."
Affirmed.