Gulfport & Mississippi Coast Traction Co. v. Faulk

80 So. 340 | Miss. | 1918

Sykes, J.

delivered the opinion of the court.

W. W. Faulk sued the appellant traction company in the circuit court for damages on account of personal injuries sustained by him. The first count of the declaration alleges that the master failed to furnish him with a reasonably safe place in which to work, and with reasonably safe appliances with which to work, in the scope of his employment. The second count alleges that plaintiff was an inexperienced man in the handling of automobiles and knew nothing about running one or the dangers incident to cranking one; that it was his duty to obey the orders of one Chambers, who was his foreman; that he was injured while attempting to crank a Ford automobile in response to an order to do so from this foreman; that he was inexperienced and did not know of the danger attached to cranking a car; that it was negligence on the part of the defendant to order him to crank the car without warning him of the dangers incident thereto.

The testimony in the case shows that appellee had been employed by appellant as a lineman in its service; that his duty was to work upon repairs and construction of the property of appellant; that shortly before the injury here sued for he was instructed by the general manager of appellant to do work known as “trouble shooting;” that Sam Chambers was the regular “trouble shooter;” that this work was somewhat different from his regular work as lineman. On direct examination, he testified that he was put on this work to assist the “trouble shooter,” Sam Chambers; that he was subject to Sam Chambers’ orders when he was hurt. On cross-examination, he was asked why he was compelled to obey Chambers’ orders, to which he replied:

“Because Mr. G-orenflo (the general manager) put me with him. Q. He didn’t put you under him? A. He put me to do what he said, I guess, because he was trouble shooter. Q. How do you know you were under Sam’s orders? A. He told me I was. Q. Who told you? A. Sam. I was working under him. Mr. G-orenflo put me under him. Q. Mr. Gorenflo never told you that you were under Sam? A. He put me with him; I didn’t know anything about the trouble work.”

This is practically all of the testimony of the appellee as to Chambers being his superior. The substance of this testimony is simply that he, the appellee, inferred that Chambers was his superior because Chambers had been working in this department for a longer period than appellee and knew more about it, and also that Chambers told appellee he was under him. The general manager, Mr. Gorenflo, testified that these two men assisted each other in this work; that neither had to obey the orders of the other with reference to the work; that they were given their orders about the work at the office; that as a matter of fact appellee was paid more wages than Chambers.

The facts relating to the injury are as follows: The appellant company furnished a Ford automobile to Chambers in order that he might be able to ride up and down the line of appellant and attend to his duties as trouble shooter. That Chambers was an experienced chauffer, and it was his duty under the contract to repair and keep in condition and look after this Ford automobile. That the appellee, Faulk, sometimes had work to do by himself, and that he was furnished with a pass over the street car line of appellant. That he was sometimes sent out to do work with Chambers. When he went with Chambers, he rode in the automobile. That appellee had nothing whatever to do with cranking or running the automobile, but that this was solely intrusted to Chambers. Appellee and Chambers had been out doing some work together. They rode out in the automobile, Chambers driving. After they finished the work, Chambers got in the car and said, “Let’s go.” Appellee then attempted to crank the automobile, and in doing so was kicked by the crank lever and his arm broken. The testimony of Chambers is that the car kicked because of some grounded wires which had come in contact with the fan belt and the insulation had been knocked from the the wires. The appellee testified that he knew nothing about the automobile and only cranked it when he was ordered to do so by Chambers; that he understood Chambers’ conduct at the time of the injury to be equivalent to an order to him to crank the automobile.

From a judgment in favor of appellee for five hundred dollars, this appeal is prosecuted.

The peremptory instruction asked by appellant should have been given. There was no testimony whatever to show that Chambers was a superior agent of the appellee or had the right to direct or control his services. They were merely fellow servants of equal dignity. It is well settled, that the authority of an agent to bind his principal rests upon the powers conferred upon him by the principal. Milling Co. v. Phillips, 117 Miss. 204, 78 So. 6.

This authority of the agent cannot he proven by the mere statement of the agent. Sumrall v. Kitselman Bros., 101 Miss. 783, 58 So. 594,

The assumption of the authority of one servant to control another, and the acquiescence by the second servant to this control, does not render the employer liable in the absence of authority conferred upon the servant by the master. This rule, quoted from White, Personal Injuries, section 222, in the case of McMillan v. Mining Co., 61 W. Va. 531, 57 S. E. 129, 11 L. R. A. (N. S.) 840, is as follows:

“The mere assumption by an employee of a power to control his fellows,. without a delegation of such power by the employer, will never render the employer liable for the orders of such subordinate; and, if an employee sees fit voluntarily to recognize such self-constituted authority, he assumes the risk of obedience, or should look to such employee for redress.”

It was no part whatever of appellee’s duties to crank or have anything whatever to do with this automobile except to ride in it. In attempting to crank it he was a mere “volunteer,” and the appellant is not responsible for his injury.

Eeversed, and judgment here for appellant.

Reversed.