Opinion
No. 32631.
March 1, 1937. Suggestion of Error Overruled April 12, 1937.
1. MASTER AND SERVANT.
In action against lumber company and its foreman for death of woods sawyer killed while felling tree, whether there was a rule of lumber company requiring sawyers to continue to saw after tree "pitched to fall," whether such rule was a reasonable one, and whether its enforcement was proximate cause of sawyer's death, held for jury.
2. MASTER AND SERVANT.
In action against lumber company for death of woods sawyer, evidence to effect that company carried sickness and accident insurance on its servants and made deductions from their wages to pay the premiums held admissible on issue of whether sawyer was a servant or an independent contractor.
3. MASTER AND SERVANT.
In action against lumber company for death of woods sawyer, wherein declaration charged that sawyer was a servant, company's plea of the general issue made question of whether sawyer was servant one for jury, and burden of proof was on plaintiff.
4. MASTER AND SERVANT.
In action against lumber company for death of woods sawyer, killed while felling tree, instruction authorizing recovery if lumber company had rule requiring its employee to continue sawing after tree "pitched to fall," rule was unreasonable and dangerous, and was proximate cause of the injury, held not erroneous on ground that it did not confine the law to the particular tree then being cut, where jury could not have been misled by instruction in that respect.
5. TRIAL.
In action against lumber company for death of woods sawyer killed while felling tree, instruction authorizing recovery if lumber company had rule requiring employees to continue sawing after tree "pitched to fall" and if rule was unreasonable and dangerous and was the proximate cause of the death held not erroneous on ground that it entirely eliminated what may have been done by the sawyer at time the tree fell.
6. TRIAL.
In action for death of woods sawyer, instruction relating to rule of lumber company, if any, requiring employees to continue to saw after tree "pitched to fall" held not erroneous or misleading in view of other instructions.
7. DEATH.
$15,000 for death of woods sawyer held not excessive even if there was contributory negligence on part of sawyer and other member of timber cutting crew.
APPEAL from circuit court of Clarke county. HON. ARTHUR G. BUSBY, Judge.
Gilbert Cameron, of Meridian, and J.L. Adams, of Quitman, for appellant.
There is no testimony in the record to show any duty of Lebbeus Smith to watch out for falling limbs or other dangers or that he knew of any such danger to Hinds Perritt, as he was at the time of the injury some thousand feet away, and besides, it is undisputed in the record that the limb which fell upon, injured and killed Hinds Perritt was broken off by Hinds Perritt and his partner in felling another tree.
There is no testimony in this record showing or tending to show that the rule, whatever the rule may have been, was the cause of the death of Hinds Perritt.
What killed this young man? A falling sweet gum limb in the open forest. What caused the limb to fall? It was broken by the deceased in felling a tree. Would the limb have fallen if deceased hadn't broken it? The answer is obvious, no. If the limb hadn't fallen would deceased have been injured? No. Then the proximate cause of his death was the falling limb.
I.C.R.R. Co. v. Wright, 135 Miss. 435; Pietri v. L. N.R. Co., 152 Miss. 185; Public Service Co. v. Watts, 168 Miss. 235.
It is axiomatic that every one is presumed to exercise due care for his own safety. This is the law of self preservation.
The rule was being observed by all the workmen, they said, and without the slightest harm. It wasn't the rule that broke the limb or caused it to fall. Neither did it diminish or increase the hazard of the limb. The method of work must be the proximate cause of the injury to entitle recovery.
Meridian Light Ry. Co. v. Dennis, 100 So. 581; 39 C.J. 469, sec. 585.
It has long been settled in this state that the employer was not required to guard the sawyers against the hazards of their work, such as falling trees, limbs or other accidents in the woods, where the conditions change every minute.
Cybur Lbr. Co. v. Erkhart, 118 Miss. 401; City of Tupelo v. Payne, 168 So. 283.
The hazards of the occupation were temporary and transitory and the employer had the right to assume that the servant would look after the safety of the place.
Barron Motor Co. v. Bass, 167 Miss. 786; Austin v. M. O.R.R., 134 Miss. 226.
Employees interpretation of the rule does not control, but reasonable inference from all language used.
Eastman Gardner Hardwood Co. v. Chatham, 168 Miss. 471.
Negligence renders the master liable, not danger, however great.
Y. M.V.R.R. v. Hullam, 119 Miss. 229; Anderson Tully Co. v. Goodin, 174 Miss. 162; Sufferman v. Leach, 161 Miss. 853; Vehicle Woodstock Co. v. Bowles, 153 Miss. 346; 39 C.J. 709.
The court erred in admitting evidence as to insurance.
Finkbine Lbr. Co. v. Cunningham, 101 Miss. 292; Texas Co. v. Jackson, 174 Miss. 737; Avery v. Collins, 171 Miss. 636.
We respectfully submit that in view of the fact that no foreman of the appellant was present at the time and that the deceased was not ordered into any place of known danger by any such foreman that to authorize the jury to find that a rule was unreasonable, unnecessary and dangerous, whatever may have been the conduct or work of the servant at that particular time, left it to the jury to determine purely as an abstract proposition whether the rule was reasonable or unreasonable.
We submit that the instruction did not announce the law and was highly prejudicial to the appellants.
The verdict is grossly excessive.
M.V.B. Miller, of Meridian, and H.. F. Case, of Quitman, for appellees.
Lebbeus Smith, Harris and Berry, whose joint experience in this line of work covered a half century, all woods foremen of appellant company at one time, admitted that a rule requiring woods sawyers to remain at a tree and continue to saw it after it pitched to fall was dangerous to the sawyers and was unnecessary and impractical. It was shown without dispute that the numerous sawmills in this section of our country had no such rule. In fact, this must be accepted as an established fact in this case that such a rule would be dangerous to the workmen and an unnecessary rule. This is one thing that all of the witnesses who were asked about it agreed on.
Where the master commands the servant to do the work, coupled with the warning that if he does not do it he will be discharged, obedience by the servant is not voluntary, it is compulsory, and the over-exertion causing the injury is compulsory over-exertion. A servant is not free when disobedience of his master means the loss of his job.
Goodyear Yellow Pine Co. v. Mitchell, 149 So. 792; Brown v. Coley, 152 So. 63; Cybur Lbr. Co. v. Erkhart, 118 Miss. 401, 79 So. 238; C. R. Lbr. Co. v. Crane, 99 So. 753; Benton v. Finkbine Lbr. Co., 79 So. 346.
If it had not been for the rule that required Hinds Perritt to remain at the tree a while and continue to saw it after it pitched to fall, as Manley expressed it, he would have left there before the falling black oak tree had time to release that big sweet gum limb and drop it on him to his hurt.
Should not the company have anticipated the injury, such as happened in the case at bar, would likely happen as a result of the rule. Lebbeus Smith, the foreman of the master, said that green limbs in trees were hard to see. Appellees' witnesses and appellants witnesses that were asked about it all said that if a man wasn't permitted to get away from the stumps of those falling trees he would get killed by falling or flying limbs.
Teche Lines v. Bateman, 130 So. 161; Norton v. Standard Oil Co., 171 So. 691.
We submit that the case of McLemore McArthur v. Rogers, 152 So. 883, and the authorities cited by it to sustain it, and the reasoning of these cases, are more analogous to the case at bar than any found in counsel's brief.
Russell v. Williams, 151 So. 373; Owen v. Suncrest Lbr. Co., 117 S.E. 705; Bradford v. English, 130 S.E. 705; Wilson v. Suncrest Lbr. Co., 118 S.E. 797; Erwin v. Missouri Kansas Tel. Co., 158 So. 922.
There was a safe method that appellants could have pursued in the case at bar. That safe method was to permit Hinds Perritt and its other woods sawyers to leave the stump of a falling tree, the place that counsel speaks of in his brief as a "death trap", when the judgment of these experienced men was that they should leave the tree to avoid injury.
Fletcher v. Ludington Lbr. Co., 76 So. 592.
The court did not err in admitting evidence complained of.
G.M. N.R.R. Co. v. Graham, 117 So. 883; 26 Cyc. 971, par. 5, and pages 1424, 1425, par. M.; Avery v. Collins, 171 Miss. 636; Cunningham v. Finkbine Lbr. Co., 101 Miss. 292, 57 So. 916; Pan American Petroleum Co. v. Pate, 126 So. 482; Miss. Utilities Co. v. Pearce, 124 So. 165; Galtney v. Woods, 115 So. 110.
Counsel asked and obtained eighteen instructions which announce the law for him we submit much more favorably than they were entitled to have it announced. To justify a reversal an instruction of appellee would have to announce some principle in conflict with appellant's instruction.
The verdict is not excessive.
Ponders v. Day, 118 So. 299, 151 Miss. 436; G. S.I.R. Co. v. Saucier, 104 So. 180, 139 Miss. 497; Caver v. Eggerton, 127 So. 727, 157 Miss. 88; Oliver Bus Lines v. Skaggs, 164 So. 12; Superior Oil Co. v. Richmond, 159 So. 850, 172 Miss. 407.
Argued orally by V.W. Gilbert, for appellant, and by M.V.B. Miller and H.F. Case, for appellee.
Appellees, Mrs. Ethel Hollingsworth Perritt and her two minor children, brought this action in the circuit court of Clarke county against appellant, Long-Bell Lumber Sales Corporation, and its foreman, Lebbeus Smith, to recover damages for the death of Hinds Perritt, the husband and father of appellees, caused by the alleged negligence of the lumber company. The trial resulted in a judgment in favor of the wife and children in the sum of $15,000, from which judgment the lumber company prosecutes this appeal.
The questions in the case are: (1) Whether the lumber company was entitled to a directed verdict; (2) whether the court erred in admitting certain evidence; (3) whether the court erred in giving one of the instructions for the plaintiffs; and (4) whether the verdict is excessive.
The lumber company was engaged in the manufacture and sale of lumber. It had a plant at Quitman and one at Crandall in Clarke county, and a logging railroad connecting the two plants. It owned the standing timber which was being cut and manufactured into lumber. Hinds Perritt, the deceased, and Kim Perritt were members of its timber cutting crew, and worked together; the crew worked in pairs. The Perritts felled a white oak tree, and its fall broke one or more limbs on a nearby gum tree. After sawing the white oak into the required lengths they felled a black oak tree standing near both of the others. It fell away from the gum tree and appears to have loosened a limb of the gum tree which had lodged against it, perhaps one end against it and the other against the gum tree. The limb was about sixteen feet long and about five inches in diameter at the base. As the black oak tree "pitched to fall" the Perritts ran in different directions for safety. The limb from the gum tree fell on Hinds Perritt and killed him.
The evidence for the plaintiffs showed that in felling hardwood trees it was necessary to saw them entirely through at the stump, otherwise they would sometimes burst and splinter for some distance up, thereby destroying their value to some extent; and to avoid this the company required the sawyers to continue to saw a little while after the tree "pitched to fall." That in order to guard against such a result the lumber company penalized the sawyers causing it by a layoff of three days. In other words, that the lumber company had a rule, with a penalty for its violation, requiring the sawyers to continue to saw until the tree was practically cut loose from the stump before they ran for safety, and that the enforcement of the rule largely increased the dangers to the sawyers from the falling trees and falling limbs dislodged from other trees.
The plaintiffs' case is that the rule was not a reasonable one, and its enforcement materially increased the hazards of the work, and that Hinds Perritt's death was proximately caused by its enforcement.
The evidence for the lumber company was to the effect that it had no such rule; that the sawyers alone had to look out for their own safety. It contends that it was entitled to a directed verdict because injuries from falling trees and falling limbs in the progress of the work were hazards incident to and a part of the work which the timber cutters assumed. The lumber company's foreman, Smith, denied that the company had any such rule. He admitted that such a rule would be unnecessary and unreasonable, and its enforcement dangerous to the timber cutters.
We are of the opinion that a case was made for the jury whether or not there was such a rule, and if so, whether or not it was a reasonable one, and if not, whether its enforcement was the proximate cause of Hinds Perritt's death.
Over the objection of the lumber company the court admitted evidence for the plaintiffs to the effect that the lumber company carried sick and accident insurance on its servants and made deductions from their wages to pay the premiums. This evidence was competent on the issue of whether or not Hinds Perritt was a servant or an independent contractor. The declaration charged that he was a servant. The plea of the general issue made that a question for the jury. It devolved on the plaintiffs to prove that he was a servant. Nowhere in the record did the lumber company concede that he was a servant and not an independent contractor. Finkbine Lumber Co. v. Cunningham, 101 Miss. 292, 57 So. 916; Gulf, M. N.R.R. Co. v. Graham, 153 Miss. 72, 117 So. 881; Pan-American Petroleum Corp. v. Pate, 157 Miss. 822, 126 So. 480, 128 So. 870.
The instruction complained of is as follows: "The Court instructs the jury for the plaintiffs that if you believe from the preponderance of the evidence that the deceased, Hinds Perritt, was a servant and employee of the Long-Bell Lumber Sales Corporation and the defendant, W. Lebbeus Smith, was its foreman and was authorized to direct and control the services of the said deceased and the deceased's employment was that of a woods sawyer and that the defendants required him in performing his duty of felling trees to stay with and continue to saw the standing tree for a time after the tree had pitched to fall and while it was falling so that it should be sawn almost or practically entirely through in falling and that the rule, if any, required the deceased to continue to saw a tree whilst the same was falling and to further saw the same almost entirely through and that such rule, if any, was unreasonable and dangerous and was not reasonably necessary in the practical operation of said business and that it unreasonably and unnecessarily and negligently jeopardized the lives of the workmen, including the deceased, and that this was known to the defendants or could have been known by reasonable care and that such rule, regulation, and practice, if any such there was, was the proximate cause of the injury and death of the deceased; then it will be your duty to find for the plaintiffs in this case, unless you believe the dangers, if any, in obeying such rule, regulations, and orders, if any, were so imminent that no person of ordinary prudence would have obeyed and followed such, if such there were."
One criticism of the instruction is that "it did not confine the law to the particular tree then being cut." The jury could not have been misled by the instruction in that respect. Another criticism is that the instruction "entirely eliminated what may have been done by the deceased at the time the tree fell." We think that criticism without merit. The evidence tended to show that the Perritts obeyed the rule of the company in felling the black oak tree, and that so doing was the proximate cause of Hinds Perritt's death. This instruction, taken in connection with all the others, could not have misled the jury.
Is the verdict excessive? It is argued that it is because the evidence for the plaintiffs tended to show contributory negligence on the part of the Perritts. Conceding that there was contributory negligence, we cannot say with any degree of certainty and confidence that the verdict is excessive.
Affirmed.