Opinion
No. 34057.
February 19, 1940.
MASTER AND SERVANT.
Employer who requested 64 year old servant to hang curtain, without directing use of stool from which servant thereafter fell when she lost her balance in attempting to hang curtain, was not liable for servant's injuries on ground of failure to furnish a reasonably safe place to work.
APPEAL from the circuit court of Harrison county; HON. L.C. CORBAN, Judge.
Carl Marshall, of Gulfport, for appellant.
The chief point raised by the appellants on this appeal is that when an employee is directed by an employer to perform a task of simple, everyday character falling within the purview of the employment; there being no coercion adopted, and the method of performing the work being left entirely to the judgment of the employee, in the absence of the employer, and the employee is injured through faulty exercise of his or her own uninfluenced judgment in the selection of the means, or by inevitable accident, the employer is not amenable to respond in damages for the injury.
39 C.J., sec. 597; Superior Oil Co. et al. v. Richmond et al., 172 Miss. 407, 159 So. 850; Goodyear Yellow Pine Co. v. Clark, 163 Miss. 661, 142 So. 443; Brown v. Coley, 168 Miss. 778, 152 So. 61; Eastman-Gardiner Hardwood Co. v. Chatham, 168 Miss. 471, 151 So. 556; Martin v. Beck, 177 Miss. 303, 171 So. 14.
The second point raised by the appellants is that when a plaintiff in an action at law pitches his or her action upon a precise and definite theory, in the absence of amendment, he or she is bound by that theory and cannot recover upon another by departure therefrom in his or her proof.
None of the pivotal allegations contained in the declaration as a statement of the gist of the appellee's action being sustained by the proof, she was permitted to recover on a complete departure from her asserted theory of action.
Ozen v. Sperier, 150 Miss. 458, 117 So. 117; Richards v. City Lbr. Co., 101 Miss. 678, 57 So. 977.
David Cottrell, Jr., of Gulfport, for appellee.
In support of his argument, the learned counsellor for appellant relies principally on Superior Oil Company v. Richmond, 172 Miss. 407. There is no question but that Joe Richmond, as an employee of Standard Brands, Inc., assisting in the fighting of the fire, had no specific instructions or directions and, in fact, he was not a professional fire fighter. He acted on his own judgment and agreed to go fight a fire in which he was hurt, but the broad announcement of that case could hardly be applicable to the case at hand, which involved so definite an instruction and command from the employer for activity to take place within the confines of a single room where the employer specifically said "go hang this curtain," and where, on entering the room, there was but one curtain to be hung, and the employer had provided and placed the dangerous ladder for the performance of the operation requested and appellee was injured in the performance of the specific act requested by the employer.
J.J. Newman Lbr. Co. v. Cameron, 179 Miss. 217.
An employee need not subject himself to discipline in order to do a particular act with an unsafe tool, for the statute abolishes the assumption of risk when the master is negligent.
Aponaug Mfg. Co. v. Carroll, 184 So. 83; Laurel Mills v. Ward, 99 So. 11, 134 Miss. 447.
Appellee contends that the record shows ample testimony that her employer negligently ordered her to hang the curtain aforesaid, and where master is negligent and that negligence contributes directly and proximately to the servant's injury, the servant does not assume the risk resulting from such negligence of the master.
Graham v. Brummett (Miss.), 191 So. 721.
The declaration alleges, and the testimony supports the contention, that appellee, in this instance, was not provided a reasonably safe place in which to work.
Davidson v. Riley (Miss.), 17 F.2d 345; Reynolds-West Lbr. Co. v. Taylor (Miss.), 23 F.2d 36.
A verdict of the jury is conclusive as to the questions of fact properly submitted to the jury.
L. N.R.R. v. Jones, 134 Miss. 53, 98 So. 230; Montgomery-Ward v. Hutchinson, 159 So. 862; Payne, Dir. Gen., v. Wynne, 88 So. 705, 126 Miss. 271; Fraternal Aid Union v. Whitehead, 87 So. 453, 125 Miss. 153.
The appellee, who was approximately 64 years of age, advertised for and obtained employment to do general house work as a domestic servant. After working for appellant for about 30 days, she sustained an injury by falling from a set of factory made steps (referred to in the testimony as a "stool") while attempting to hang a curtain at the window in the guest room. The steps were about two feet high, and, according to appellee's testimony, constituted "a good steady stool," which she had previously used frequently in the kitchen when reaching articles on the pantry shelves and elsewhere. She sued and recovered a judgment for damages upon the theory that there had been a failure on the part of her employer to exercise reasonable care to furnish her a reasonably safe place to work.
On the occasion complained of it appears that one of those ever recurring and familiar house-cleanings was in progress; that the window curtains had been cleaned, stretched and ironed; and that they were ready to be put back in place. Some one had already hung those in the guest room except one, and had left the stool in that room in front of the only undraped window left. The appellant, who was of advanced age and in bad health, requested appellee to go and hang the remaining curtain, not knowing that the stool was in the room in front of the window, since its accustomed place was in the kitchen. Thereupon, appellee stated that she "had never hung a curtain," when appellant responded by saying, "why, anyone can hang a curtain." Upon entering the room and seeing the stool in front of the window where she was to hang this curtain, appellee undertook to use it without having been specifically requested so to do. She thought that she would be able to reach the curtain rod and hang the curtain in safety while standing on the stool, but she was not of sufficient height to do so. Consequently, she lost her balance in the attempt and fell. Her employer was not present, nor was any complaint made to her about the stool not being high enough. The stool was not defective or insubstantial. After taking in the situation, appellee herself thought she could use it for the task undertaken, and would have been able to do so uneventfully, except for the fact that she misjudged the extent of her reach and lost her balance. We are therefore of the opinion that there was no failure on the part of the employer to exercise reasonable care to furnish the employee a reasonably safe place to work, and that the peremptory instruction requested by the appellant should have been granted.
Reversed, and judgment here for the appellant.