Sawmill Const. Co. v. Bright, 77 So. 316

77 So. 316 | Miss. | 1917

Ethridge, J.,

delivered the opinion of the court.

Robert Bright, a minor, by next friend brought suit against the Sawmill Construction Company, a corporation under the laws of the state of Georgia, and the Finkbine Lumber Company, a corporation under the laws of the state of Iowa, alleging that the Finkbine Lumber Company was erecting a sawmill at D’Lo, in Simpson county, Miss., and that the Finkbine’Lumber Company had contracted with the Sawmill Construction Company to do a portion of the work in erecting the sawmill; that the plaintiff was employed by the said defendants as a common laborer to mix or assist in mixing or making concrete used in the construction of the said mill; that while thus engaged the foreman of the defendants cornmanded the plaintiff to crank an engine commonly known as the ripsaw engine a part of the machinery used in the said plant and in the construction thereof; that the plaintiff is not a machinist, and was ignorant of the dangers appertaining to said employment, and that he was ordered to crank the engine without being instructed as to the danger incident thereto; that the said engine was defective, and that by reason of said defect it back-fired and struck the plaintiff on the jaw, breaking his jaw and knocking out several teeth, because of which he suffered permanent injuries, great pain and distress, and incurred large expense. It is alleged that the defendants were negligent in directing the plaintiff to crank a defective machine which the defendants knew, or should have known, was defective and dangerous, and in not furnishing plaintiff a reasonably safe machine with which to do the work he was directed to do and in directing the plaintiff to change from the work at which he was engaged to a work which was highly dangerous without instructing him how to do this worlc and of the dangers incident thereto, and in not furnishing plaintiff with a good, safe machine, or in not keeping it in safe and suitable repair, and in furnishing plaintiff a dangerous machine run with a highly dangerous agency, to wit, gasoline, without giving plaintiff full instructions relative thereto, and in furnishing plaintiff with a defective machine in a dangerous condition so that the crank thereof would jerk, wabble, run away, backward and forward, and in ordering him to use the same without advising him of the defective condition and dangers incident thereto, and in placing the plaintiff under a grossly incompetent and negligent foreman.

•The testimony of the plaintiff showed that he was employed by the Sawmill Construction Company, and was paid by that company, but that it was the practice of the Sawmill Construction Company and the Finkbine Lumber Company to work their respective employees in common and to exchange the services of the employees whenever either thought proper to do. so. In other words, that the Finkbine Lumber Company had a right to use the services of plaintiff in any of its operations in the construction of the sawmill, and that the Finkbine Company’s foreman, Tunnison, directed plaintiff to crank the machine in question without informing him of its dangerous condition; that the dangerous condition was known to the said foreman, and that in cranking, or attempting to crank, the said engine, on account of the defects known to tlie Finkbine Lumber Company, it backfired and ran away and struck plaintiff on the jaw. He testifies that he was directed by the foreman of the Sawmill Construction Company to perform any labor for the employers of the Finkbine Lumber Company that he was' called upon to do by its foreman, and that it was customary under the arrangement between the two companies for the employees of the Sawmill Construction Company to work under the direction of the foreman of the Finkbine Lumber Company.

Other witnesses for the plaintiff corroborated his statement as to the defective condition of the machine and as to the custom of the Finkbine Lumber Company to use,the employees of the Sawmill Construction Company whenever they deemed proper, and that acting under instructions of the foreman of the company, who had knowledge of the defects of the engine, plaintiff was injured while attempting to crank the machine without having knowledge of the defects existing in the machine. This testimony of plaintiff and his witnesses was contradicted by the foreman of the Sawmill Construction Company and by the foreman of the Finkbine Lumber Company. The Sawmill Construction Company and the Finkbine Lumber Company were sued jointly in tort, and at the conclusion of the evidence the court granted a peremptory instruction for the Finkbine Lumber Company, but submitted the case between the plaintiff and the Sawmill Construction Company tó a jury, and the jury found a verdict for the plaintiff against the Sawmill Construetion Company, which company, since the rendition of said judgment, has become bankrupt and the judgment rendered against it worthless to the plaintiff-.

We s.ee no error in the submission of the case on the part of the Sawmill Construction Company.; but we *think it was error for the court to grant the peremptory instruction on behalf of the Finkbine Lumber Company. That company contested liability upon .two theories, one of which was that the suit was a joint suit and there was no proof of joint liability; and the other was that the plaintiff was not an employee of the Finkbine Lumber Company but was a mere volunteer in performing the services for the Finkbine Lumber Company, and the. relation of master and servant did not exist. It is settled in this state that tort-feasors may be sued jointly and severally, and that one joint tort-feasor is not released from liability by suit or judgment against the other, but that it requires a satisfaction or payment to satisfy the liability against joint tort-feasors. Bailey v. Delta Electric Light, Power & Manufacturing Co., 86 Miss. 634, 38 So. 354. We think it is well settled in other states that a person in the employ of one person or com-. pany whose services are loaned by his employer to another company or person becomes, for the purpose of the work assigned to him, the servant of the latter company, that is to say, the company for whom the work is performed. In Westover v. Hoover, 88 Neb. 201, 129 N. W. 285, that court said:

“A person who is in the general employment of one person may be temporarily in the service of another with respect to a particular transaction or piece -of work so. that the relation of master and servant arises between them, even though the general employer may have no interest in the special work.”

In the case of Wiest v. Coal Creek R. Co., 42 Wash. 176, 84, Pac. 725, the court said:

“Where an employer lends his employee to a third person for a particular employment, the employee, for anything done in the particular employment, is the employee of the third person, though he remains the general employee -of the employer. . . . An employee has a right to rely on the performance by the employer of the duty to furnish a safe place in which, and safe - appliances with which to work.”

See, also, Hannigan v. Union Warhouse Co., 38 N. Y. Supp. 272; Johnson v. Ashland Water Co., 71 Wis. 553, 37 N. W. 823, 5 Am. St. Rep. 243; Railroad Co. v. Loosely, 76 Kan. 103, 90 Pac. 990; Bailey on Personal Injuries (2d Ed.) section 25; Labatt’s Master and Servant (2d Ed.) section 17.

We think if the plaintiff’s evidence be accepted as true he was entitled to a judgment against the Finkbine Lumber Company. The matter, at all events, should have been submitted to a jury under proper instructions.

Reversed and remanded.