Opinion
No. 30742.
January 1, 1934. Suggestion of Error Overruled February 12, 1934.
1. MASTER AND SERVANT.
One seeking damages for assault by fellow servant must show employer retained servant committing assault with knowledge, or equivalent, that he did not possess qualifications enabling him to perform duties without exposing fellow servant to greater danger than work would necessarily entail.
2. MASTER AND SERVANT.
Ordinarily, master is not responsible for servant's act unless committed within scope of employment and in furtherance of master's business.
3. MASTER AND SERVANT.
Where servant committing assault induced superior servant to accompany him to certain place on employer's premises with definite intention of there assaulting superior servant and evidence did not show why assault was committed, superior servant could not recover from employer for injuries.
4. APPEAL AND ERROR.
Where record on appeal brought under review setting aside of first judgment, evidence on second trial could not be considered.
APPEAL from Circuit Court of Hinds County.
Butler Snow, of Jackson, for appellants.
The rule is that, on an appeal involving an order granting a new trial, in considering the same, this court will go only to the record of the first trial, and if no error appears therein, will reverse the judgment on the second trial, reinstate the former judgment, and enter judgment thereon for the appellants, in whose favor the first verdict was rendered.
Frizell v. White, 27 Miss. 198; Vanderburg v. Campbell, 64 Miss. 89; DeArmond v. Fine, 111 Miss. 737.
The right of recovery, based upon the theory that the master has kept in his employ an unsafe and dangerous servant, with knowledge thereof, is predicated upon substantially the same doctrine which obligates the master to furnish the servant with a reasonably safe place in which to work and with reasonably safe tools and appliances with which to perform his work.
18 R.C.L. 720; 48 L.R.A. 369; 3 Labatt's Master Servant 2d sec. 1079; 39 C.J. 527; Hedgwood v. Newman Lbr. Co., 132 Miss. 487; Waterman Lbr. Co. v. Miles, 135 Miss. 146; Edward Hines Lbr. Co. v. Dickinson, 155 Miss. 674; Hooks v. Mills, 101 Miss. 91.
Although plaintiff might be able to show that the negro laborer, Paul Walker, was a dangerous employee, and although plaintiff might get around the remaining obstacles in his way of recovery, it was necessary before he was entitled to recover against the defendants for injuries inflicted upon him by his fellow servant, that the plaintiff show that when he made the assault upon him, the negro, Paul Walker, was acting within the scope of his employment and with the view to the furtherance of his master's business.
Hines, Agent, v. Cole, 123 Miss. 254; Petroleum Iron Works v. Bailey, 124 Miss. 11; Hines, General Agent, v. Green, 125 Miss. 476; Great Sou. Lbr. Co. v. May, 138 Miss. 27.
Refusal to grant request for peremptory instruction was error.
The proof shows that Mr. Mitchell was the superior servant in charge of defendants' warehouse. That the negro, Paul Walker, who committed the assault on him was one of the negro laborers in Mr. Mitchell's department and under his supervision and control, being the inferior servant. In this case the injury was occasioned by the wilful act of the inferior servant in assaulting the superior servant. In such a case the inferior servant is the fellow servant of the superior servant, and the fellow servant rule applies to injuries received by the superior through the negligence or act of the inferior servant.
39 C.J. 593; 18 R.C.L. 756; 23 L.R.A. (N.S.) 301; Hines, Agent, v. Cole, 123 Miss. 254; Hines, Agent, v. Green, 125 Miss. 476; Southern Pacific v. Hetzer, 135 Fed. 272, 1 L.R.A. (N.S.) 288; Ingram-Day Lbr. Co. v. Joh, 107 Miss. 43; Petroleum Iron Works v. Bailey, 124 Miss. 11; Great Southern Lbr. Co. v. May, 138 Miss. 27.
Ross R. Barnett, P.Z. Jones, and Chalmers Potter, all of Jackson, for appellee.
It is the duty of the court in its instruction to present every issue involved in the case and if an instruction ignores such an issue, or the evidence thereon, the instruction is erroneous.
14 R.C.L. 793; Western Union Telegraph Co. v. Merrit (Fla.), 46 So. 1024, 1033; Whaley v. Sloss-Sheffield Steel Iron Co. (Ala.), 51 So. 419, 423; U.S.F. G. v. Charles (Ala.), 31 So. 558, 559; Mills Co. v. Strong, 23 Fed. 876; Ray v. Brannan, 72 So. 16, 196 Ala. 113; Sims v. Martin, 126 S.E. 872, 33 Ga. A. 486; Southern Surety Co. v. Calverly, 143 N.E. 626, 195 Ind. 247; Merchants National Bank v. Maiden, etc., Co., 125 N.E. 384, 234 Mass. 161; Stink v. R.R. Co. (W. Va.), 89 S.E. 280; Heitman v. Kaltenback Stephens, 112 A. 306, 95 N.J.L. 118.
The trial court can grant a new trial for errors even if acquiesced in by plaintiff.
Y. M.V.R.R. v. Wade, 162 Miss. 699; Browning v. Hoffman (W. Va.), 103 S.E. 484.
It is to be borne in mind by the court that the entire sequence of the events leading to the vicious assault and the vicious assault itself was one unbroken chain and that nowhere along the line of these events was there a deviation for even the smallest fraction of a time.
Houston v. Oppenheim, 145 So. 339; Richberger v. American Express Co., 18 So. 922; Western Union Telegraph Co. v. Stacey, 139 So. 604; Rivers v. Y. M.V.R.R. Co., 43 So. 471; Indianola Cotton Oil Co. v. Crowley, 83 So. 409; American Railway Express Co. v. Wright, 91 So. 342; Alden Mills v. Pendergraft, 115 So. 713; Gill v. Dantzler Lbr. Co., 121 So. 153.
We take it from a review of the evidence in this case that with the verdict of the jury in favor of the plaintiff, there is no doubt that the jury was amply justified in finding that Walker was a mean, dangerous, vicious negro and that this fact had been brought home to the defendants and that with knowledge of this fact, they retained Walker in their employment. This being true, the defendants were guilty of negligence.
Hines v. Green, 125 Miss. 476, 87 So. 649; Barmore v. Vicksburg, Shreveport and Pacific R.R. Co., 70 L.R.A. 627.
If the act which the servant was engaged in at the time of the injury was one which, if continued until its completion, would have furthered the master's business and was within the scope of the servant's employment, the master would be liable.
Gassenheimer v. Western Railway of Alabama, 175 Ala. 319, 57 So. 718, 40 L.R.A. (N.S.) 998; Case v. Rulsebush, 122 Ala. 212, 26 So. 155.
If the master is liable because of the implied authority to enforce obedience to his orders where the superior assaults the inferior, we most respectfully submit that the authority to command given to the superior by the master carries with it the corollary duty of the inferior to obey the command by the superior and when the command is given and because of the command the assault is committed, we most respectfully submit that the assault is committed at a time when the inferior is engaged in the scope of his employment and with a view to the master's business.
Indianola Oil Co. v. Crowley, 121 Miss. 263; Richberger case, 18 So. 922.
Any error committed was ratified by appellant and he is now estopped to complain. The defendant in the court below, appellant herein, sought and obtained two instructions on the precise points here under controversy.
Y. M.V.R.R. Co. v. Wade, 162 Miss. 699, 139 So. 403; Edwards v. Cash, 156 Miss. 507; Illinois Central Railroad Co. v. Handy, 108 Miss. 421; Liverpool Globe Ins. Co. v. Van Os, 63 Miss. 431; Wilson v. Zook, 69 Miss. 694.
Argued orally by C.B. Snow, for appellant.
This is an appeal from a judgment for the appellee for damages sustained by him because of a personal injury alleged to have been caused by him by the negligence of the appellants. The case was tried twice. On the first trial judgment was rendered for the appellants, but was set aside by the court below; on the second trial, a judgment was rendered for the appellee. The record brings under review the setting aside of the first judgment. The reason assigned by the trial judge for setting aside the judgment was that he had erred in granting and refusing instructions to the jury. It will not be necessary for us to consider that question, for the verdict of the jury was in accord with what it would have been had the court granted, as it should have done, appellants' request for a directed verdict, from which it follows that the jury reached the right result.
The appellee was an employee of the appellants, and the wrong alleged to have been done him was an assault made on him by another employee of the appellants, who was a fellow servant of the appellee. The law of that relation applies here, the case not coming within the statutes abolishing the fellow-servant rule in some instances. In order for the appellee to recover, it must appear: (1) That the appellants employed, or retained in their service, the servant who committed the assault with knowledge, or its equivalent, that he did not possess the qualifications, mental, moral, and physical, which would enable him to perform his duties without exposing his fellow servants to greater danger than his work would necessarily entail; and (2) that the assault was committed under such circumstances as to make the appellants, because of the character of the servant who committed it and the knowledge of the appellants thereof, responsible therefor.
We will assume, for the purpose of the argument, that the evidence meets the first of these requirements and will state the case only in so far as it bears on the second.
The appellants were wholesale and retail merchants, conducting a number of chain stores. They operated a warehouse in connection with their business from which merchandise was distributed to their chain stores by means of trucks. The appellee was, and had been for a number of years, in charge of this warehouse, and discharged, among other things, the duties of a shipping clerk. Walker was, and had been for a number of years, the driver of one of the trucks by which deliveries were made from the warehouse. He was under the supervision and control of the appellee, and was under duty to obey his orders for the doing of anything necessary to be done in and about the warehouse and the delivery of goods therefrom. The assault was committed on Saturday. Three or four days prior thereto, the appellee suggested to one of the appellants that Walker be discharged for the reason "that everybody believed he (Walker) was stealing, and they were all kicking about him being mean," whereupon that appellant told the appellee to give Walker his pay check on Saturday night, and to tell him that his services would be discontinued.
There was a steam engine and machine in the basement of the warehouse, without any flooring or covering over it, which was approached by means of steps from the warehouse proper.
The assault was made by Walker on Saturday about two p.m., and what then occurred can best be told in the appellee's own language. On being asked what Walker did, the appellee replied: "When he backed his truck up in to the platform he got out and went back to the colored lavatory and in a minute or two he came to my little office and says `Mr. Lee, I want you to come back here a minute, I have got something I want to show you.' And I went with him and got about half way and Paul said, `I found something somebody has been stealing and I want to show you where it is,' and I says, `All right,' and we went back there in about twenty-five feet from this cold storage machine, and there was a little space behind, and he says, `There are two boxes there — I just found them and wanted to show them to you and see if you can catch who it is.' So I reached over and picked them up and both were empty and I laid them back down and I says, `Paul, how long have you known this?' and he says, `I just found them a while ago.' I says, `Well, pick them up and put them in the garbage barrel and I will tend to it myself.' . . . He (thereupon) slapped his left hand over my mouth and hit me on the forehead with his right hand and knocked me down on the floor, and about three feet from where I hit the floor there was some steps about four feet deep that goes to the basement where this cold storage machine is, and he shoved me down those steps — I don't know how he got me there — I was too dazed — but the next thing I knew I was down these steps, and he jumped down and grabbed me by my arms like this (indicating), and drug me back to that fly wheel, six or eight feet tall, with a twenty Horse power motor to it, and right by this wheel is a row of pipes about two feet from the wheel, and he drug me between these pipes and that wheel and tried to get me in that wheel, and when he tried to put me in the wheel I grabbed one with my left hand and he couldn't get me in the wheel; and my right arm scraped against the belt and burned a big hole in my arm here (indicating)." Another servant then appeared upon the scene, and Walker ceased his effort to put appellee in the machinery.
Ordinarily, in order for the master to be responsible for an act of his servants, the act must have been committed within the scope of the servant's employment and in furtherance of the master's business. According to counsel for the appellee, this requirement is here met, for they say that the jury were authorized to believe that Walker committed the assault because of the direction given him by the appellee to pick up the empty box and put it in the garbage barrel. If this was Walker's reason for committing the assault, he was clearly discharging no duty he owed the master, for instead of thereby furthering his master's business he was intentionally obstructing it. Compare Hines v. Green, 125 Miss. 476, 87 So. 649; Davis v. Green, 260 U.S. 349, 43 S.Ct. 123, 67 L.Ed. 299.
It may be, as to which we express no opinion, that, if Walker assaulted the appellee because he resented the order given, the appellants would be responsible therefor, provided they retained Walker in their service with the knowledge that he would resent, with violence, orders given him by his superior servant, and, therefore, had reason to expect that he would so do. That question cannot arise for the reason that it is manifest from the evidence that the assault was not committed by Walker for the asserted reason. On the contrary, it is clear from the evidence that Walker induced the appellee to accompany him into close proximity to the machinery with the then definite intention of there assaulting him and placing him in the machinery, so as to make it appear that he had been accidentally injured thereby. The very character of the assault itself alone, it being clearly made with a murderous intent, would raise a serious question in this connection; for it is hardly probable that a sane man — and there is no contention that Walker is not such — would deliberately attempt to murder the appellee merely because he resented an order to discharge a very simple duty incumbent upon him by virtue of his employment. Why Walker committed the assault does not appear from the evidence on the first trial. There was evidence on the second trial which seems to bear thereon, but it, of course, cannot be considered here.
The judgment of the court below will be reversed, and the judgment on the first trial will be reinstated.
Reversed, and judgment here for the appellants.