Summary
In Mississippi Utilities Co. v. Smith, 166 Miss. 105, 145 So. 896, 898, it was said: "Matters, such as the introduction of proof, the asking of leading questions, etc., are largely within the discretion of the trial court."
Summary of this case from Larry v. StateOpinion
No. 30418.
February 13, 1933.
1. APPEAL AND ERROR.
Before judgment can be reversed for error, it must appear error was prejudicial to complaining party.
2. WITNESSES.
Matters such as introduction of proof, asking of leading questions, etc., are largely within trial court's discretion.
3. APPEAL AND ERROR.
Allowing person not party to be called and examined as adverse witness, there being no attempt to impeach him, held not reversible error.
4. MASTER AND SERVANT.
In employee's suit for injuries sustained in cranking truck, whether employee was employed by defendant, whether truck was in dangerous condition, whether defendant had been informed thereof and had promised to remedy situation, whether defendant owned ice plant where truck was allegedly used, and whether defendant paid employee, held for jury.
5. MASTER AND SERVANT.
Employer held liable for injury employee sustained in cranking employer's truck to return to place of employment, where employer knew dangerous condition of truck, even if employee, just before cranking truck, had been engaged in work disconnected with employment.
6. MASTER AND SERVANT. Employee held not to have assumed risk of injury from cranking employer's truck, where he relied upon employer's promise to have truck repaired ( Code 1930, sec. 513).
Code 1930, section 513, provides that in all actions for personal injury to an employee, such employee shall not be held to have assumed the risks of his employment in any case where such injury results in whole or in part from the negligence of the master.
7. MASTER AND SERVANT.
Automobile truck held not "simple tool," but machine which master had nondelegable duty to keep in reasonably safe condition.
8. MASTER AND SERVANT.
Employee injured in cranking truck held not contributorily negligent as matter of law.
9. MASTER AND SERVANT.
Employee discharging employer's nondelegable duty to keep truck in reasonably safe condition held not "fellow servant" of employee injured in cranking truck.
10. TRIAL.
Instructions must be considered as whole.
11. TRIAL.
Instructions integrating elements more favorable than law permits held properly refused.
APPEAL from Circuit Court of Lawrence County.
Green, Green Jackson, of Jackson, for appellant.
The action here is based on the negligence of the Mississippi Utilities Company in failing to furnish the plaintiff with a Ford truck that would not back-fire. If the Mississippi Utilities Company was wholly absent from Lawrence county, Mississippi, prior to October, 1928, as the proof shows it was; if it had no agents, employees or property there prior to and on the date of the injury as proof demonstrates; if it had no ownership or control of the Ford truck, and other equipment in Lawrence county on the date of the injury, and was not the employer of Smith, then there can be no liability.
It is well settled that negligence proceeds from a failure to perform a duty owing by the negligent to the injured. Negligence can only proceed from a duty imposed by contract, or by the statutes of the state, or by a well defined public policy.
Georgia Casualty Co. v. Cotton Mills Products Co., 159 Miss. 396, 132 So. 73.
A petition alleging that the plaintiff was an employee of the defendant company, and, as such, sustained personal injuries through the defendant's negligence while engaged in work he was employed to do, is not sustained by evidence showing that the relation of master and servant did not exist between these parties and that the plaintiff was really the servant of another company using the same yard, and was doing the work in question under his employment by that company.
Western Wheel Works v. Stachnich, 102 Ill. App. 420; Postell v. Brunswick W.R. Co., 112 Ga. 602, 37 S.E. 869; B. O.R.R. Co. v. Paul, 143 Ind. 23, 28 L.R.A. 216, 40 N.E. 519; Moest v. Buffalo, 110 App. Div. 657, 101 N.Y. Supp. 996, Aff. 193 N.Y. 615, 86 N.E. 1128; Labatt's "Master and Servant," Vol. 1, sec. 27, page 88; Buckner v. Railroad Co., 72 Miss. 873, 18 So. 449.
It was the duty of the employee to establish the relation of employer and employee, first and second to establish the fact that the truck, the dangerous appliance was furnished by such employer and third, that it was at the time on business for the employer and within the scope of the employment.
Wildberger v. Insurance Co., 72 Miss. 338; Mercantile, etc., Ins. Co. v. Hope Ins. Co., 8 Mo. App. 411, 7 A.S.R. 281; Greenwood Ice Coal Co. v. Insurance Co., 72 Miss. 46; Development Co. v. Fire Ins. Co., 105 Miss. 211; Hirsch Bros. Co. v. Kennington, 124 So. 350; Vicksburg Gas Co. v. Ferguson, 140 Miss. 543, 106 So. 258; Ford Motor Co. v. Myers, et al., 117 So. 363; Primos v. Gulfport Laundry, etc., Co., 128 So. 507; Isaacs v. Prince Wilds, 133 Miss. 195, 97 So. 558.
The principles of law which control in this class of cases are quite well settled. A servant in the general employment of one person who is temporarily loaned to another person to do the latter's work becomes for the time being, the servant of the borrower, who is liable for his negligence.
Woods v. Clements, 113 Miss. 720, 74 So. 422; L.R.A. 1917E, 357; Carr v. Burke, 183 App. Div. 361, 169 N.Y. Supp. 981; American Ry. Exp. Co. v. Wright, 128 Miss. 593, 91 So. 342; Davis v. Price, 133 Miss. 236, 97 So. 557; Moore Stave Co. v. Wells, 111 Miss. 796, 72 So. 228; Western Union Tel. Co. v. Stacy, 139 So. 604; Barmore v. Vicksburg, etc., R. Co., 85 Miss. 426, 38 So. 210; Canton Cotton, etc., Co. v. Pool, 78 Miss. 147, 28 So. 823.
If, as shown here, Mr. Smith selected his own method of starting the motor, and there was a less dangerous method known to him, we submit that the defendant was entitled to the instruction peremptorily charging that, as a matter of law, Mr. Smith was guilty of contributory negligence.
Goodyear Yellow Pine Co. et al. v. Clark, 142 So. 443, 445; Finkbine Lumber Co. v. Cunningham, 101 Miss. 292, 57 So. 916; Illinois Central R.R. Co. v. Guess, 74 Miss. 170, 1 So. 50; Parker v. Lumber Co., 54 So. 252; Ikler v. Nix, 114 Miss. 293, 75 So. 120.
An automobile is not a dangerous instrumentality, so as to make the employer liable for the negligence of an employee in the use of said automobile while acting without the scope of his employment.
Vicksburg v. Ferguson case, 140 Miss. 543, 106 So. 258; American Law Institute Restatement of the Law of Agency Tentative Draft Number five, sections 458 and 463.
Wilbourn, Miller Wilbourn, of Meridian, for appellant.
When appellee was injured, he was the employee of Lawrence County Power Gin Company, then under the active control and management, not of Mississippi Utilities Company but of J.W. Tynes who at that time was disputing the right of Mississippi Utilities Company, A.R. Williams, W. Calvin Wells, III, and M.L. Culley to be the stockholders and officers of the corporation with the right to manage and direct its affairs.
It is clear that Lawrence County Power Gin Company was the employer of appellee, and that appellee was the then servant of that corporation.
The court below erred in not directing the jury peremptorily to return a verdict on behalf of appellant.
When Tynes took an employee of Lawrence Power Gin Company off of his work and sent him out with this truck to do some private work for him, Tynes, on the houses of Tynes' wife, with which Lawrence County Power Gin Company and Mississippi Utilities Company never at any time had either the remotest interest or connection, and if, in the doing of that work, appellee was injured, we submit, under familiar doctrines, and under the authorities he had no right of recovery against Lawrence County Power Gin Company, nor Mississippi Utilities Company.
Coast Traction Company v. Faulk, 80 So. 340, 118 Miss. 894; Higgins v. Western Union, 50 N.E. 500, 66 Am. St. Rep. 537.
Mississippi Utilities Company even if on the date of the accident, it actually owned practically all of the stock of Lawrence County Power Gin Company, clearly did not as such stockholder at the time either control or dominate Lawrence County Power Gin Company, so as to become liable for any tort Lawrence County Power Gin Company may have committed, if any, against appellee.
Boothe v. Hallwell, 3 K.B. 252.
The ownership of the stock of Lawrence County Power Gin Company by Mississippi Utilities Company did not make it liable for a tort of Lawrence County Power Gin Company under the law as applied to the facts.
Pagel, Norton Company, Inc., v. Harmon Paper Company, 258 N Y Supp. 168.
H.J. Patterson and E.B. Patterson, both of Monticello, and Hall Hall, of Columbia, for appellee.
The question whether the right defendant was sued is an issue of fact to be determined by the jury, like any other issue of fact. Whether the right defendant was sued in this case depends on the question whether there existed at the time of the injury of the deceased the relationship of master and servant between appellant and deceased. Any competent and relevant evidence tending to prove or disprove the relationship in question was admissible.
G.M. N. Railroad v. Graham, 117 So. 881, 153 Miss. 72; Hamilton Brothers Company v. Weeks, 124 So. 798, 155 Miss. 754; Edward Hines Lumber Company v. Dickinson, 125 So. 93, 155 Miss. 674.
The whole effect of the notice under the general issue was that the appellant there admitted that it had employed appellee, admitted that it owned and used the truck which injured him, and admitted that it owned the plant where he was working. After having admitted these things, we submit that the appellee was not required to prove those things. Appellant certainly cannot adopt a position in its pleadings and then adopt a contrary position upon the trial and upon appeal, as it seeks to do in this case.
If a fact is admitted in the pleadings on which the case is tried, it is in general, assumed without other evidence to be conclusively established for the purposes of the trial.
Ogden v. Bosse, 86 Tex. 344, 24 S.W. 798; Nugent v. Powell, 62 A.S.R. 17; First Nat'l Bank v. Ragsdale, 81 A.S.R. 332; Miles Planting Co. v. Ware, 78 So. 104; M.L. Virden Lbr. Co. v. Sherrod, 139 So. 813; Smith v. Kaufman, 14 So. 111; Anderson v. Anderson, 112 So. 603, 147 Miss. 515; Babst v. Hartz, 108 So. 871; Mobile Trans. Co. v. Mobile, 44 So. 976; Wilcoxson v. Burton, 87 Am. Dec. 66; Knoop v. Kelsey, 22 A.S.R. 777; La Follett v. Mitchell, 95 A.S.R. 780, 69 P. 916; Aultman v. Gunderson, 55 A.S.R. 837.
Pleading must be strictly construed against pleader.
Bradley v. City of Jackson, 119 So. 811, 153 Miss. 136; Hart v. Ins. Co., 122 So. 471, 154 Miss. 400; Gulfport B. L. Assoc. v. City of Gulfport, 124 So. 658, 155 Miss. 498; Westbrook v. McCarty, 134 So. 193; White v. Williams, 124 So. 64, 154 Miss. 897; Natchez v. Minor, 9 S. M. 544, 48 Am. Dec. 727; A.G.S.R.R. v. Cardwell, 55 So. 185; Nunnally Co. v. Bromberg Co., 115 So. 230; Capitol City Bank v. Hilson, 51 So. 853; Johnson v. Stone, 13 So. 858, 69 Miss. 826.
Where a corporation acquires all the assets of another corporation, it is liable for its obligations.
Meridian Lt. Ry. Co. v. Cator, 60 So. 657, 103 So. (Miss.) 616; Morrison v. American Snuff Co., 30 So. 723, 79 Miss. 330.
And suit may be maintained against either corporation.
Wolff v. Shreveport Gas, Elect. Lt. P. Co., 70 So. 789.
To the general principle that an employee by continuing in the service with knowledge of its perils is debarred from recovering for injuries resulting therefrom, there has come into general recognition an exception known as the doctrine of notice and promise to repair. According to this doctrine if an employee complains to or notifies the employer of an apprehended peril, such as may be due to defective instrumentalities, and the employer promises to remedy the defect, the employee may continue in the service for a reasonable time with a right to hold the employer liable in case injury ensues.
18 R.C.L. 649-696; Hough v. T. P.R.R., 100 U.S. 213, 25 L.Ed. 612.
The record shows negligence which is not in dispute. Appellee testified that the starter was broken on the truck and that there was no way to crank it except by hand. He further testified that about ten days or two weeks before his injury the truck had kicked him and he had complained about it to Mr. Tynes, and Tynes had promised to fix it. He further testified that after his injury he looked at the truck and found that the insulation was worn off the wires.
It is the nondelegable duty of the master to furnish the servant with safe machinery and appliances with which to do his work, and to keep such machinery and appliances in a reasonably safe condition.
Hercules Powder Co. v. Tyrome, 124 So. 74, 155 Miss. 75.
It may be stated as a general rule that where the relation of agency legally exists the principal will be liable to third persons for all acts committed by the agent in his behalf in the course and within the actual or apparent scope of his agency, although some of the acts are to the principal's advantage and some to his disadvantage, and although they are done in disobedience of positive but private instructions.
2 C.J., 832; 2 C.J., 837; Howison v. Nicholson, 93 So. 373.
A corporation is bound by the acts of its agent in the real or apparent scope of his authority.
Metzger v. Southern Bank, 54 So. 241, 98 Miss. 108; P.W. B.R.R. Co. v. Brannen, 2 A. 429; L. N.R.R. v. Barganier, 53 So. 138; Woodward Iron Co. v. Lowther, 69 So. 877; Driver v. Southern Railway Co., 93 Miss. 190.
Since the appellee was required to obey the orders of Tynes, he was certainly not acting beyond the scope of his employment when he obeyed those orders.
Whether the injury occurred in the scope of the employment is a question for the jury to determine from all the facts.
Primos v. Gulfport Laundry, 128 So. 507; Waterford Lbr. Co. v. Jacobs, 97 So. 187; Deck v. B. O.R.R., 108 A.S.R. 399.
The owner of an automobile is negligent and liable in damages for permitting it to be used while in a defective condition, regardless of whether it is being used by a servant.
Tannahill v. Depositor's Oil Gas. Co., 110 Kan. 254, 203 P. 909; Barmore v. V.S. P.R.R., 85 Miss. 448; Donovan v. Garvas, 200 N.Y.S. 253; Texas Company v. Veloz, 162 S.W. 377; Rocha v. Garcia, 263 P. 238; Foster v. Farra, 117 Or. 286, 243 P. 778; McCallister v. Farra, 117 Or. 278, 243 P. 785; Hinsch v. Amerkanian, 145 A. 232.
All questions of negligence and contributory negligence shall be for the jury to determine.
Sec. 512, Code of 1930.
A master who intrusts the custody and control of a dangerous appliance or agency to the management of a servant will not be permitted to avoid responsibility for injuries inflicted thereby on the plea that the servant, in the particular act complained of, was acting outside the scope of his employment.
Barmore v. Railroad, 85 Miss. 448.
Argued orally by Forrest B. Jackson, for appellant, and by Lee D. Hall, for appellee.
The appellee, I.H. Smith, sued the appellant, Mississippi Utilities Company, for a personal injury sustained by the appellee while employed by the appellant, alleging that, on the 21st of June, 1928, the appellant owned and operated an ice plant engaged in the manufacture of ice, and that the appellee was employed by the appellant and required to do such work as might be assigned to him by the appellant's manager, the appellee's superior officer.
It was further alleged that, in connection with the operation of the ice plant, the appellant used a Ford automobile truck in its business, and that on the occasion of the injury the appellee was directed to take this truck and carry material to a certain place and assist another to do work there which appellant's manager had ordered to be done; that the automobile truck was out of repair, and had to be cranked by hand; that the insulating wires had rotted and worn away; and that when the appellee, who was required to operate the truck on the occasion in question, went to crank the truck to return to the company's place of business, it back-fired and broke his arm. It was alleged that prior to this time the manager of the appellant, J.W. Tynes, had been informed of the unsafe and dangerous condition of the Ford truck, and its tendency to back-fire when being cranked, and had agreed to have it repaired, and that the appellee relied upon this agreement and promise, and, on the occasion in question, supposed that the master (Tynes) had repaired the truck so as to make it safe.
It was shown that another employee of the appellant was engaged for the special purpose of keeping the truck and other machinery belonging to the appellant in proper condition, and to do such other work as the appellant's manager might require of him.
It was alleged that it was the duty of the master to keep in safe condition the machinery used in the appellant's business for the safety of the employees.
The defendant (appellant) filed a plea of general issue, giving notice thereunder that it would prove that plaintiff (Smith) was not an employee of the appellant, and was not engaged in the scope of his employment in the furtherance of any business for the appellant, but that the appellee was engaged in a matter in and about the business of another; that J.W. Tynes, the manager of the utilities company, did not, on behalf of the company, request the appellee to perform any undertakings for the company out of which there was any injury to the appellee. It was further set out that the company did not direct or request the appellee to crank the Ford truck, but that the appellee was engaged in the furtherance of business for himself, or a third person at the time, and that the utilities company had no direction or control over the Ford truck, or over the actions of the appellee. The notice of special matter further alleged that the truck was in a reasonably safe condition for a Model T truck; had been purchased from a reputable dealer and was kept in a reasonably safe condition, such as required of a reasonably prudent person. That, at the time of the accident, the truck was being used by the appellee without permission, and on a mission wholly disconnected from any usage for the appellant; that the appellee caused his own injury, was guilty of contributory negligence, voluntarily assumed the risk, and the injury was the result of a simple accident. That the injury was caused by the negligence of a fellow servant for which the appellant was not liable.
There is conflict in the evidence as to whether the appellee was in the employ of the appellant. There is also a conflict as to the ownership of the Model T Ford truck.
It appears from the appellee's proof that the Mississippi Utilities Company had acquired the ice plant and gin involved in the controversy, and that it paid the appellee and the other employees during the month of June, and for services on the day of the injury; that the truck in question, after the injury, was found to be in a bad condition, with the insulation over the wires rotted off, which caused a short circuit, and which, in turn, caused premature ignition resulting in back-firing when it was being cranked; that appellant's manager had been notified of this dangerous condition several days before the injury, and had promised to remedy it, but had not done so, and the appellee did not know, at the time he was injured, that the truck had not been repaired; and that he had relied upon Tynes' promise to have it repaired.
The truck was afterwards repaired by another employee of the appellant specially employed for the purpose of keeping the machinery repaired, and this employee sustained the appellee both as to the condition of the truck and as to the notice to Tynes, and his promise to have it repaired.
It appears that Tynes, appellant's manager, had directed the appellee to take the truck and carry some material to a certain place, a house in Monticello, and assist a named person in some work to be done there in repairing this house, which the appellee did; that when the work was finished, he was attempting to crank the truck and was injured.
Tynes testified that at the time of the injury the Mississippi Utilities Company had not acquired the ice plant and gin, but that it has a contract, which Tynes termed an option, by which they could acquire it, which was exercised after the accident, and that from the first of June, under this contract, they received the income and profits from the ice and gin plant, and that they paid the expenses of its operation from that date. The terms of the contract do not appear, as no copy of it was introduced in evidence, nor did the proof show any of its specific terms. Tynes also testified that the house, to which the appellee was sent by him to assist in repairing, belonged to Mrs. Tynes, his wife; that he personally owned the truck at the time of the injury, and operated the ice and gin plant, which was afterwards transferred to the utilities company; and that he was not, at that time, acting as manager for the appellant. He denied the appellee's statement that he (Tynes) had been informed as to the dangerous condition of the truck, and had promised to have it repaired.
It appears that there were two trucks used in connection with the ice and gin plant acquired by the utilities company. Tynes claimed that he personally owned one which was not transferred or sold to the appellant.
Tynes was introduced by the appellee as an adverse witness, and was examined as an adverse witness as on cross-examination, which was objected to by the appellant. This is assigned as one of the errors on appeal.
It appears that when the trial began, the attorneys for the appellant requested that Tynes be allowed to remain in court for the purpose of advising them during the progress of the trial, which the court permitted. When he was called as an adverse witness and the objection was made, this fact was referred to before the court, and the appellant's attorneys stated that they were willing for the record to show that as being a fact. Tynes was not a party to the suit. It appears, however, from his evidence, that it was highly favorable to the appellant, and that he was, at all times, on the alert to protect the appellant's interests.
Even if we concede that it was error to permit Tynes to be examined as an adverse witness, it would not constitute reversible error in this case. Before a judgment can be reversed for error, it must appear that the error was prejudicial and harmful to the complaining party. It does not so appear in this case.
Matters, such as the introduction of proof, the asking of leading questions, etc., are largely within the discretion of the trial court. There was no attempt to impeach the witness Tynes, in this case, as being unworthy of belief, and we are not willing to reverse the case for this alleged error.
It is not necessary now to decide whether, under any circumstances, the court can permit a party, who is not a party to the suit, and has no personal interest in the controversy, to be called as an adverse witness and so examined.
We think it was a question for the jury to decide, on the proof, whether the appellee was employed by the utilities company, and whether or not the truck was in an unsafe and dangerous condition, and whether the company had been informed thereof prior to the accident, and had promised to remedy the situation.
We think it was also for the jury to decide whether the utilities company was the owner of the ice and gin plant, and whether or not the appellee was paid by them.
Upon all of these matters the evidence is conflicting, and, of course, the jury is the trier of the facts.
We do not think it necessary to decide whether the fact, if it be a fact, that Tynes sent the appellee to a house owned by his (Tynes') wife, belonging to her personally, to repair same without knowledge on his part of such fact, would be a bar to recovery in this case if the injury resulted from such work.
Conceding, for the purpose of this opinion, that the appellee had been sent by Tynes, and that he was assisting in the repair of a house belonging to Tynes' wife, in which the appellant, the ice and gin company, had no concern, it does not affect the liability here, for the reason that the mission had been completed, and so far as private work for Mrs. Tynes was concerned, the appellee had started to return to the place of his employment, having in charge the truck found by the jury to belong to the utilities company, and which it was necessary for him to use in returning to his place of employment. At that time, we think he was in the employment of the appellant. The instrumentality of the appellant was being used in the transportation of its employee, and it was necessary for him to return this instrumentality to its master, and he was engaged in that particular duty at the time of his injury.
In Barmore v. Vicksburg, S. P.R. Co., 85 Miss. 426, 38 So. 210, 212, 70 L.R.A. 627, 3 Ann. Cas. 594, the court dealt with a similar condition, and in the course of the opinion the court said: "In determining whether a particular act is committed by a servant within the scope of his employment, the decisive question is not whether the servant was acting in accordance with the instructions of the master, but, was he at the time doing any act in furtherance of his master's business? If a servant, having completed his duty to his master, then proceeds to prosecute some private purpose of his own, the master is not liable; but if the servant, while engaged about his master's business, merely deviates from the direct line of duty to accomplish some personal end, the master's responsibility may be suspended, but it is reestablished when the servant resumes his duty. Even if in violation of express orders, a deviation from, is not an abandonment of, the master's service. Mulvehill v. Bates, 31 Minn. 366, 17 N.W. 959, 47 Am. Rep. 796; Rahn v. Singer Mfg. Co. (C.C.), 26 F. 912; Weber v. Lockman, 66 Neb. 469, 92 N.W. 591, 60 L.R.A. 313; Sleath v. Wilson, 9 Car. Payne, 607; Ritchie v. Waller [ 63 Conn. 155, 28 A. 29, 27 L.R.A. 161, 38 Am. St. Rep. 361], supra; Williams v. Koehler, 41 App. Div. 426, 58 N.Y.S. 863; Quinn v. Power, 87 N.Y. 535, 41 Am. Rep. 392. 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 been within the scope of the servant's employment, the master would be liable, even though the act occurred at a place to which his duty did not necessarily call him. Geraty v. Nat. Ice Co., 16 App. Div. 174, 44 N.Y.S. 659. This class of cases is plainly distinguishable from those in which there has been a departure — a turning aside — from the master's business to engage in an affair not incidental to his service, but purely of the servant's own. The principle of law governing each class is well understood, the main difficulty being the classification of the particular case."
We think, therefore, that if the truck belonged to the utilities company, as the jury found it did, and if the allegations and proof showed that it was in a dangerous and unsafe condition, known to the master, as was found by the jury's verdict, then the master was liable.
It is urged here that if the automobile truck, in a bad condition, as stated, was voluntarily operated by the appellee, he assumed the risk of his employment.
If the testimony of the appellee is true, there could be no assumption of risk by him, because of the knowledge of the master of such defective condition; his promise to have it repaired; and the appellee's reliance upon that promise.
It is provided by statute in this state that a servant does not assume the risk of his employment, where the master is negligent. Section 513, Code 1930, reads, in part, as follows: "In all actions for personal injury to an employee, and in all actions where such injury results in death, such employee shall not be held to have assumed the risks of his employment in any case where such injury or death results in whole or in part from the negligence of the master. . . ."
An automobile is not such a simple piece of machinery as to free a master from liability, but is a machine which the master must keep in a reasonable condition of safety. This duty is nondelegable. Planters' Oil Mill v. Wiley, 154 Miss. 113, 122 So. 365, in the second syllabus of which it is said that: "It is master's nondelegable duty to provide employees working around machinery with safe place or instrumentality. . . . This is a nondelegable duty, and a master is guilty of negligence, where an employee engaged for that purpose . . . was negligent."
In Hercules Powder Co. v. Tyrone, 155 Miss. 75, 124 So. 74, 475, we held that: "Where machine is complicated, mere fact that servant may happen to know as much as master does about instrumentality does not relieve master from furnishing servant with safe instrumentality." We also held that it "is nondelegable duty of master as to complicated machinery to furnish servant with safe machinery and appliances with which to do his work, and to keep machinery and appliances in reasonably safe condition."
The refusal of several instructions is complained of, some of which sought to instruct the jury peremptorily that the appellee was guilty of contributory negligence, and it was their duty to diminish the damages proportionately. The peremptory part was, of course, improper on the proof. The appellant was granted an instruction which told the jury that if appellee was negligent, he could not recover, or if the defective condition of the truck was not the sole and proximate cause of his injury, he could not recover; also, an instruction to diminish the damages if the appellee was negligent; also, that the master is not liable for the negligent acts of a fellow servant, even though such negligence produced injury to another servant.
These instructions were more favorable to the appellant than it was entitled to receive, and proceeded upon the theory that if the injury was due to the negligence of the employee, the master was not liable.
The appellant was granted another instruction to the effect that if the jury believed from the evidence that it was the duty of Smith, the appellee, or any fellow servant of the utilities company, to repair and keep in safe condition the truck, and Smith, or any fellow servant, failed to perform this duty, Smith was not entitled to a verdict, but the jury should return a verdict for the appellant.
Of course, if it was the duty of Smith, appellee, to keep the truck in repair, if he had been employed for that purpose, and neglected to perform his duties in that regard, he could not recover for an injury, because a party cannot recover for his own wrong. However, there is no proof from which it could be inferred that Smith, the appellee, was under any duty to repair the automobile truck. On the contrary, the proof shows that another person was employed for that particular purpose, and such employee, when acting in that capacity, was discharging a duty for which the master was bound. In other words, such employee was discharging a nondelegable duty, and was not a fellow servant within the legal meaning of that term.
The appellant was granted another instruction more liberal than it was entitled to, which, in effect, told the jury that the plaintiff, in accepting the employment, assumed all the ordinary risks of the work, and that these risks were known to Smith.
Taking the instructions as a whole, as we must do, we find that the appellant secured a fair announcement of the law, and as stated, in certain respects, more favorable than it was entitled to receive. None of the refused instructions would constitute reversible error in this case. Most of them state the law inaccurately. In other words, elements are integrated into them more favorable than the law permits, and, therefore, it was no error to refuse them.
We find no reversible error, and the judgment is affirmed.
Affirmed.