102 So. 854 | Miss. | 1925
Lead Opinion
The plaintiff and one Percy Talley were employed by the Great Southern Lumber Company in and about the operation of a skidder. The skidder at the time of the acts complained of was being dismantled to be removed to another point. May and Talley worked on opposite *36 sides of the skidder and were under a man named Warren, as foreman. May, the plaintiff, missed a hanger on his side of the skidder and made inquiry of a negro employee as to what had become of the hanger and was informed that Talley had taken it. May then went on the opposite side of the skidder and asked generally of the persons employed, "Which of you boys has got my hanger?" and that Talley replied with an oath that he had it and would take anything else he wanted and that May then replied, "I don't know about that. I don't think I would let a man take something I was working with without saying or doing anything about it." Thereupon Talley applied to May an epithet which stirs the fighting blood of a Southern man, as placing a negro "in the dozen" stirs up his combativeness.
According to the plaintiff, Talley assaulted him first, striking him with an iron, and then they clinched and Talley struck the plaintiff several blows in the face with his fist and tried to get a pine knot which May succeeded in keeping out of his reach. While they were clinched Warren, the foreman, happened along and separated the two men. May seems to have been badly worsted and was sent to a doctor for medical treatment and was under treatment for some days and according to the doctor, he appeared to have fractured a rib where it joins to the breastbone.
At the conclusion of the plaintiff's evidence the defendant moved to strike out the evidence and asked for a peremptory instruction, which motion was overruled. The defendant also requested a peremptory instruction at the close of the whole case which was also refused.
Neither the declaration nor the proof shows a case where the master was negligent. Talley had no control or direction of the services of May, and May had no control or direction of the services of Talley. Neither one stood in the master's shoes in relation to the other, and the act of Talley cannot be said on the facts in this case to be the act of the master. There is an allegation *37
that the master was negligent in employing Talley or that Talley was in fact a dangerous and vicious man whose employment would endanger the safety of the other employees. The proof wholly fails to show that Talley was in fact quarrelsome or dangerous. The proof does show that Talley was not discharged after the assault, but was kept in the employment of the appellant until he became sick and left such employment. Therefore the case does not come within the pronouncement of this court in Hines v.Green,
It is not sufficient to constitute liability that the quarrel and assault arose about the master's business, but the master must owe some duty to the person assaulted or must have been guilty of some misconduct or negligence with reference to the matter about which the assault was inflicted.
In the Green case, supra, the proof was clearly that the master had knowledge of the dangerous character of his employee and retained such employee over the protest and objection of other employees in his service.
In Hines v. Cole,
Under our statute abolishing the fellow-servant rule, it is abolished where the master is negligent with reference to the subject-matter of the cause of action, but if the master is not negligent the statute does not apply.
We think, under the facts disclosed by the record, there was no liability on the appellant; therefore the judgment will be reversed, and judgment rendered here for the appellant.
Reversed, and judgment here.
Addendum
"When the fellow-servant rule does not apply, the master is responsible for an injury wrongfully inflicted by one servant on another, when acting within the course of his employment, with a view to the master's business, although the master was not negligent in employing such servant, or in retaining him in his service."
The fellow-servant rule has been abolished by statute in case of railroads and other corporations and individuals using engines, locomotives, or cars of any description whatever propelled by the dangerous agency of steam, etc., running on tracks. It is provided in section 6684, Hemingway's Code (Laws of 1908, chapter 194), that every employee in such case shall have the same rights and remedies for an injury suffered by him from the act or omission of such railroad corporation or *39 others, or their employees, as are allowed by law to other persons not employed, etc.
In the case before us the skidder was not being operated, and the employment was not being conducted under the conditions named in the statute. The skidder was being dismantled, to be moved, and was not being operated, and the fellow-servant rule applied. In this state the doctrine of the assumption of risk is abolished where the master is negligent, but is not abolished where the master is not negligent, except as provided above. One of the risks assumed by employment where the assumption of the risk is not abolished, and where the master is not negligent in the employment or retention of a servant, is the danger incident from the operation of the business by the act of a fellow servant in carrying on the business. As stated in the main opinion in this case, the master here was guilty of no negligence in the original employment of the servant committing the assault, nor in retaining him, for the evidence failed to show that the servant who inflicted the injury was a vicious, quarrelsome, or dangerous man. The opinion does not, in our view, change the rule announced in Hines v. Cole, supra, or in Hines v. Green,
The suggestion of error will therefore be overruled.
Overruled.
