Great Southern Lumber Co. v. Hamilton

101 So. 787 | Miss. | 1924

Holden, J.,

delivered the opinion of the court.

It is suggested that we erred in our opinion reversing this case some weeks ago, and the suggestion of error also points out a minor inaccuracy in the statement of the proceedings in the lower court.

We have considered the suggestion of error, and have decided to overrule it; but in order to correct the inaccuracy complained of, and to modify the former opinion in one respect, we shall withdraw the former opinion and substitute the following as the opinion in this case:

The appellee, Ben Hamilton, recovered.a judgment for four thousand dollars against the' appellant, the Great Southern Lumber Company, as damages for personal injuries received by him while riding on a motor truck negligently operated by the appellant through its servant, one Luther Evans. The lumber company appeals and urges several grounds for reversal, but we shall notice only those which are pertinent to the decision.

The case in short is this:

Ben Hamilton was employed by the appellant lumber company as a sawyer in the woods, whose duties were to cut and saw logs which would be transported to the mill site. The lumber company operated a large motor truck between the mill site and the camp in the woods where the logs were sawed. The employees were transported to and from their work on this truck. It appears from the appellee’s testimony to have been a part of the contract of service between appellant and appellee that the appellant was to furnish conveyance to appellee to and from his daily work.

The truck was operated by one Luther Evans, a servant of appellant, who drove the truck to and from the mill site to the camp for the transportation of the employees, using the public roads between the two points.

On the day that Hamilton was injured he was riding upon the truck, going to his work in the woods. The truck was being driven by the servant Luther Evans on the public road. Hamilton was sitting on the side of the truck, with his legs and feet hanging off, and the driver, Evans, negligently drove the truck out of the road into a ditch, which caused Hamilton’s legs to come in contact with a log which protruded from the bank over the ditch into the road, causing serious injury to Hamilton, and for this injury the judgment herein was obtained.

The plaintiff in the lower court proceeded by his plead- ’ ing, proof, and instructions upon the theory that he was a servant in the employment of the appellant at the time he was injured whole riding’ upon the truck to his place of work in the woods, and that the injury was due to the neglig’ence of Luther Evans, another servant, who was operating’ the truck for the lumber company. The case was tried upon this theory, and the jury returned a verdict, evidently from the instructions, that Hamilton was a servant and was injured by the negligence of Evans, who was also a servant of the appellant at the time of the injury.

The appellee did not present his case on the theory that he was a passenger or an invitee, nor the Evans was a vice principal of appellant at the time he was injured, but that both Evans and Hamilton were fellow servants in the actual employment of the master at the time of the injury.

It appears from the appellee’s testimony that the servant Evans, who operated the truck, - /as a fellow servant with the appellee, Hamilton, at the time of the injury. They were both employed by the master in a common service, viz. the general business of sawing timber to be transported to the mill for manufacturing purposes, and while the appellee, Hamilton, was not actually performing the work of sawing logs at the time he was injured, and the servant Evans was engaged in operating the truck which transported the employees to their place of work, they were servants nevertheless in a common service for ' the master.

Even if the doctrine of vice principal as to servants, generally speaking, prevailed in our state, still the relation of Evans, the driver of the truck, was not that of vice principal toward the appellee, Hamilton, because the relationship between Evans and the appellee was, under the proof in this record, either that of fellow servants, or the appellee was a mere invitee of the appellant. Both of them were serving the master in a common purpose, or-else appellee was merely invited by appellant to ride upon the truck, and should- recover if injured by the negligence of the driver, Evans, who was acting as servant and agent of the appellant lumber company.

The appellee, Hamilton, was not a passenger, for the obvious reason that his testimony shows he was an employee at the time he was injured, and, besides, the rule is well established that ah employee who is being transported to and from his work, as- in this case, is a servant while thus being transported, because the transportation is incidental to, and is so closely connected with, the main employment as to be a part of it. Tallahala Lumber Co. v. Holliman, 125 Miss. 308, 87 So. 661; Ionnone v. N. Y., etc., R. Co., 21 R. I. 452, 44 A. 592, 46 L. R. A. 730, 79 Am. St. Rep. 812; note to 61 Am. St. Rep. 98; Dayton Coal & Iron Co. v. Dodd, 188 F. 597, 110 C. C. A. 395, 37 L. R. A. (N. S.) 456; 4 Labatt, section 1555; 16 R. C. L. 584; Kilduff v. Ry. Co., 195 Mass. 307, 81 N. E. 191, 9 L. R. A. (N. S.) 873; Roland v. Tift, 131 Ga. 683, 63 S. E. 133, 20 L. R. A. (N. S.) 354; Magee v. M. C. R. Co., 95 Miss. 678, 48 So. 723; Wilson v. Banner Lbr. Co., 108 La. 590, 32 So. 460; Bowles v. Indiana Ry. Co., 27 Ind. App. 672, 62 N. E. 94, 87 Am. St. Rep. 279; Simpson v. Carter Coal Co., 79 W. Va. 365, 91 S. E. 1085; Whalen v. Union Pac. Coal Co., 50 Utah, 455, 168 P. 99; Salabrin v. Ann Arbor R. Co., 194 Mich. 458, 160 N. W. 552; Mitchell v. So. Ry., 176 N. C. 645, 97 S. E. 628; A. C. L. Ry. Co. v. Williams (C. C. A.), 284 F. 262; Matthison v. Payne (N. J. Sup.), 118 A. 771; Arkansas Land & Lbr. Co. v. Cook, 157 Ark. 245, 247 S. W. 1071; Producers’ & Refiners’ Corp. v. Castile, 89 Okl. 261, 214 P. 121; Stone-Webster Engineering Corp. v. Collins, 199 F. 581, 118 C. C. A. 55; A. G. S. R. Co. v. Brook, 161 Ala. 351, 49 So. 453; Self v. Adel Lbr. Co., 5 Ga. App. 846, 64 S. E. 112.

But it is urged by the appellee that the appellant failed to plead the fellow-servant rule, and did not raise the point below but presented it for the first time in its reply brief on this appeal, and therefore cannot raise it now.

We find no merit in this contention, because we think the point was raised by the defendant below when is requested a peremptory instruction at the conclusion of all the testimony in the case, which was refused by the court. The pleading- and proof offered by the plaintiff himself having established the relation of fellow servants between him and Evans, the truck driver of defendant, which would defeat the action, the point was properly raised by the request for the peremptory instruction for the defendant.

The appellant lumber company argues that the judgment should be reversed and one rendered here for appellant, on the ground that the record conclusively shows a case where the injury was caused solely by the negligence of a fellow servant.

We think this view would have been maintainable if the appellant had rested its case without introducing any testimony, but.instead of doing so the appellant introduced testimony which it contended, and we will therefore assume, for the purpose of the argument, tends to prove that the appellee was not a servant at the time he was injured, but was a mere invitee, that is, he was riding upon the truck by invitation, and was not a servant in the employment of the appellant at the time he was injured.

The defendant below tried its case upon this latter theory and, there being a conflict thus claimed to be raised in the evidence, on the whole case, as to whether the appellee was an invitee or a servant at the time of his injury, and the jury having found a verdict for the plaintiff, on the ground that the appellee was a servant, the judgment must be reversed, because there could be no recovery if the appellee was a servant and was injured by the negligence of Evans, a fellow servant; but there can be no judgment rendered here for appellant on this ground because the appellant introduced proof which it contends shows that apj/'llee was an invitee, and, of course, if this be true, then the appellant owed appellee the duty of using reasonable care not to injure him, and if- injured by the negligence of the servant of appellant, the appellee should have a recovery in the case. Therefore the judgment of the lower court must be reversed and a new trial granted, so that the case may be properly submitted for determination by a jury.

It is true the appellant attempted to show by its proof that appellee was a mere licensee to whom appellant owed no duty except not to willfully injure him. The proof, however, falls shoft of this purpose but we assume, for the purpose of argument that it does substantially show appellee was an invitee at the time of his injury, and the law is settled in this state, and elsewhere, that reasonable care is required under such circumstances, and that a failure to use reasonable care which results in injury warrants a recovery in favor of the injured party. Belzoni Hardwood Lumber Co. v. Langford, 127 Miss. 234, 89 So. 919, 18 A. L. R. 1406.

The unusual situation presented in the case on appeal came about, we apprehend, from an inadvertent misapplication of the fellow-servant rule as modified by statute in this state (section 6684, Hemingway’s Code [section 4056, Code of 1906]), which in substance abolished the fellow-servant rule with reference to injuries received on account of the negligence of fellow servants, where such injury was caused by ‘ ‘ cars running on tracks. ’ ’ The car in this case which caused the injury was a truck propelled by gas and was running on the public road, and not “running on tracks.” And as the fellow-servant rule is not abolished except as to injuries due to cars running on tracks the modification is inapplicable in the case before us.

The judgment of the lower court is reversed, and the case remanded for a new trial.

Reversed and remanded.

Suggestion of error overruled.