Opinion
No. 31045.
April 16, 1934.
1. MASTER AND SERVANT.
Under doctrine of dual capacity which is recognized in Mississippi, master is liable only for those acts of his foreman when exercising supervisory authority, and not for those acts of foreman when engaged in detailed and delegable work of laborer.
2. MASTER AND SERVANT.
Corporation held not liable for negligence of its foreman in turning lever at his end of gas pipe being repaired, thus causing foreign substances to be discharged into face of laborer working at other end of pipe, since foreman was then acting as fellow laborer and not exercising his supervisory authority.
APPEAL from Circuit Court of Forrest County.
Jesse M. Byrd, of Leakesville, and Currie Currie, of Hattiesburg, for appellant.
Our court has many times stated that all facts must be most favorably resolved in favor of the plaintiff and accepted as true where there is no contradictory testimony when considering the granting of a peremptory instruction.
Newton v. Homochitto Lumber Co., 138 So. 564; Barron Motor Co. v. Bass, 150 So. 202.
The foreman was not assisting Harper in capping the pipe, was handing him no instrumentalities with which to do it, but at a separate point altogether acting for the master and as the master's sole representative in authority there on the job negligently and carelessly turned the gas on at a time when he had given orders to the appellant to do certain work, which work required the appellant to get down over the open or exposed pipe, and while down over it this high pressure of gas which was shown to be some twenty-seven or thirty pounds was negligently and carelessly turned on and blew this poisonous accumulation of naphtha and other foreign substances in to his eyes.
A peremptory instruction should not be given for the defendant if the state of the evidence is such that they would not vacate a verdict predicated thereof in plaintiff's favor.
Rhymes v. Jackson Electric R. Co., 85 Miss. 140, 37 So. 708; Anderson v. Cumberland Tel. Co., 86 Miss. 341, 38 So. 786; Sec. 586, p. 443, Miss. Code of 1930; Fore v. Alabama R. Co., 87 Miss. 211, 39 So. 493, 690; American Trading Co. v. Ingram-Day Lbr. Co, 110 Miss. 31, 69 So. 707; Dean v. Brannon, 139 Miss. 312, 104 So. 173; McKinnon v. Braddock, 139 Miss. 424, 104 So. 154; Wise v. Peugh, 140 Miss. 165, 106 So. 81; New Orleans R. Co. v. Jackson, 140 Miss. 375, 105 So. 770; New Orleans R. Co. v. Martin, 140 Miss. 410, 105 So. 864; St. Louis R. Co. v. Mixon Phillips, 141 Miss. 677, 105 So. 478; Yates v. Houston Murray, 141 Miss. 881, 106 So. 110; Gulf R. Co. v. Hales, 140 Miss. 829, 105 So. 458.
After appellee's vice principal had blown the old pipe and closed the valve and ordered appellant to cap the same it was the duty of appellee, the defendant below, by and through its vice principal, McLain, not to do any thing while appellant was so engaged in that work that would render the work he was doing dangerous, or subject him to peril or injury while he was carrying out the orders of his vice principal.
Edwards v. Haynes Walker Lbr. Co., 113 Miss. 378, 74 So. 284; Labatt's Master Servant (2 Ed.), p. 1110; Benton v. Finkbine Lbr. Co., 118 Miss. 558, 79 So. 346; Finkbine Lbr. Co. v. Cunningham, 101 Miss. 292, 57 So. 916; Murdock Campbell v. Jones, 60 Wn. 265, 110 P. 1083, 20 A.L.R. 671; Y. M.V.R.R. Co. v. Smith, 117 So. 339; Janco v. West Coast Mfg., etc., Co., 40 Wn. 230, 82 P. 284.
Heidelberg Roberts, of Hattiesburg, for appellee.
Even if it should be conceded that the pipe fitter, McLain, was a superior servant or vice-principal, still in performing the manual labor of taking the wrench and turning the valve and thereby causing the gas to flow through the pipe, he became an ordinary employee or laborer, a fellow-servant of the plaintiff, for whose act the defendant would not be responsible, for it is the well established law of Mississippi that a superior servant or vice-principal while actually and actively engaged in manual labor with a co-worker becomes an ordinary employee or laborer, a fellow-servant.
Lagrone v. Mobile Ohio Railroad Co., 67 Miss. 592; Gwin v. Carter, 129 So. 597; Hercules Powder Co. v. Hammack, 145 Miss. 304, 110 So. 676; McMaster v. I.C. Railroad Co., 65 Miss. 264, 4 So. 59; Givens v. Southern Railway Co., 94 Miss. 830, 49 So. 180; Petroleum Iron Works v. Bailey, 124 Miss. 11, 86 So. 644.
Superior servant or vice-principal, while actually and actively engaged in manual labor with coworker, becomes ordinary employee or laborer, a fellow-servant, required, with other servants, to look after safety of working place.
Barron Motor Co. v. Bass, 150 So. 202.
Where reasonably safe place to work doctrine applies, fellow-servant doctrine has no application because of rule that duty of master in that respect is nondelegable.
G.M. N.R.R. Co. v. Brown, 143 Miss. 890, 108 So. 503; Kentucky Coal Co. v. Nance, 165 Fed. 44, 91 C.C.A. 82; International Shipbuilding Co. v. Carter, 121 Miss. 103, 83 So. 413.
Argued orally by Dan T. Currie, for appellant, and by Rowland W. Heidelberg, for appellee.
The appellant and two or three other workmen were testing and repairing a gas pipe. Appellant, a laborer, was working at one end of the pipe, and the foreman at the other end, the latter end being attached to the gas main. While appellant's head was near the opening of his end of the pipe, the foreman, working at the other end, negligently turned the valve lever or wrench at his end which caused the gas to flow with great force through the pipe and to discharge injurious foreign substances into the face and eyes of appellant. The approximate cause of the injury was the negligent act of the foreman in turning the lever or wrench at his end of the line, when he knew or ought to have known that appellant at the other end was probably not expecting this to be done at that time. The parties were only a short distance from each other; each was in the unobstructed view of the other; each could see what the other was doing. If therefore, the negligent act done by the foreman had been done by an ordinary laborer, there would clearly be no liability, as to the master, under the fellow-servant rule. The question is whether the fact that the negligent act was that of the foreman is sufficient to carry liability against the master.
In many states the doctrine of dual capacity has been entirely rejected, this upon the reasoning that, since the master would be liable had the foreman or superior agent expressly directed a servant under his control to do the particular negligent act which proximately resulted in an injury to another servant, there is no substantial distinction when the foreman himself does the negligent act, executing himself his own direction. The strength of this reasoning is not to be denied, and it is even more apparent that the practical administration of the law under that rule would be far easier and simpler than under the doctrine of dual capacity; but, since the decision and opinion in Lagrone v. Mobile O.R. Co., 67 Miss. 592, 7 So. 432, our state has been consistently aligned with those which hold to the latter doctrine, which is that the master is liable only for those acts of the foreman or superior agent which are official or managerial acts, those done by him in the actual exercise of his supervisory authority, and not for those which pertain to the duties or labor of a workman, those done by him when engaged then and there in the manual or operative work of a laborer, having reference at this point, of course, to those acts of labor or fellow service which belong to the details of the work and not to those duties which are nondelegable by the master. Many illustrations of the doctrine to which this state is committed are found in the notes, 4 Labatt, Master Servant (2 Ed.), pp. 4314-4316; and, among our own cases, see The Lagrone Case, supra; Hercules Powder Co. v. Hammack, 145 Miss. 304, 110 So. 676; Gwin v. Carter, 158 Miss. 196, 129 So. 597; Barron Motor Co. v. Bass (Miss.), 150 So. 202.
Since the negligent act which was the proximate cause of the injury was an act of the foreman done then and there as a workman or fellow laborer, and not in the actual exercise of his official authority as foreman, it was obligatory upon the trial judge, under the settled rule in this state, to grant the peremptory charge, which he did.
Affirmed.