Opinion
No. 34586.
September 22, 1941. Suggestion of Error Overruled November 10, 1941.
1. MASTER AND SERVANT.
In employee's action to recover damages for contracting tuberculosis from inhaling sulphur dioxide gas when servicing electric refrigerators, evidence was sufficient for jury on question of employers' liability based on contention that employers failed to inform employee of dangers or to protect him against them, though there existed complete protection which they could have furnished him at small cost.
2. JURY.
It is the duty of the trial court to see that a competent, fair and impartial jury is empaneled (Const., 1890, sec. 31).
3. ATTORNEY AND CLIENT.
An attorney's duties are not confined alone to serving his clients, but he is an "officer of the court" and as such must do and say whatever is necessary to promote the fair administration of justice.
4. APPEAL AND ERROR.
Where employee's attorneys represented him in injury action on a contingent fee basis alone, and after case had been on trial for four days and was about ready for argument, defendants' counsel discovered for the first time that one of the jurors and one of plaintiff's attorneys were first consins, that attorney's failure to call the court's and opposing counsel's attention to his relationship to the juror constituted reversible error in view of amount of verdict returned for employee.
5. APPEAL AND ERROR.
In employee's injury action, statement made by one of his attorneys during argument that defendant power company and defendant utilities company belonged to the largest corporation in the United States and England and that though they called themselves Mississippi companies, they did not have a thing in the world to do with Mississippi except collect Mississippi dollars and kill Mississippi people, constituted reversible error in view of amount of verdict returned for employee, notwithstanding trial court's admonition that jury should not be influenced by that language.
6. MASTER AND SERVANT.
In action against power company, utilities company, and manager to recover damages for contracting tuberculosis from inhaling sulphur dioxide gas when servicing electric refrigerators, evidence was sufficient to authorize the trial court to submit to the jury the question whether plaintiff was an employee of the utilities company.
SMITH, C.J., dissenting in part.
APPEAL from the circuit court of Neshoba county, HON. PERCY M. LEE, Judge.
Wilbourn, Miller Wilbourn and Jacobson, Snow Covington, all of Meridian, and Eaton Eaton, of Gulfport, for appellants.
The evidence does not disclose that appellants were guilty of any negligence in failing to warn and instruct the appellee with reference to the danger from sulphur dioxide gas or as to the method of dealing therewith. There was no duty to warn, because under the facts one's own senses warned him. The testimony already reviewed shows conclusively that there was no need to warn. The effects of the gas on one's senses was too immediate and pronounced to require any vocal warning with words.
Yazoo City Transportation Company v. Smith, 78 Miss. 140, 28 So. 807; Traffic Motor Truck Co. v. Claywell, 12 F.2d 419; Billingsley v. R.R., 100 Miss. 612, 56 So. 790; Y. M.V.R.R. Co. v. Cox, 132 Miss. 564, 97 So. 7.
See also 39 C.J. 490, Sec. 604; 18 R.C.L. 571; M. O.R.R. Co. v. Clay, 125 So. 819, 156 Miss. 463; Meridian Grain Elevator Co. v. Jones, 169 So. 771, 176 Miss. 764; Manning v. Insurance Company, 100 U.S. 693, 25 L.Ed. 761; Dobbins v. Lookout Oil Refining Co., 133 Miss. 248, 97 So. 546.
Instruction was in fact given. The record fails to establish any negligence in failure to warn and instruct.
The evidence does not disclose that either of the appellants was guilty of negligence in failing to supply gas masks or other devices for use by appellee on occasions when he might come in contact with sulphur dioxide gas.
There was a total failure to establish by sufficient proof any negligence on the part of either of the appellants proximately causing or contributing to the alleged injuries to appellee.
An employer is not held to insure the safety of his employees, nor is he held to insure that none of his employees will not be injured or become ill while working for him. The rule is well established in this state and the principles applicable are well settled.
M. O.R.R. Co. v. Clay, 125 So. 819, 156 Miss. 463; Hammontree v. Cobb Construction Company, 152 So. 278, 168 Miss. 844; Forbes v. Cobb Bros. Construction Co., 184 Miss. 647, 185 So. 243.
Nor is it required of an employer that he guarantee the work required of an employee will not cause injury to the employee, nor is the employer required to guarantee the safety of the place, or of the instrumentalities in and with which his employee is required to work. Reasonable care in that regard is all that is required and we submit that is all that should be required.
Baron Motor Co. v. Bass, 150 So. 202, 167 Miss. 786; Grain Elevator Co. v. Jones, 169 So. 771, 176 Miss. 764; Allen Gravel Co. v. Curtis, 161 So. 670, 173 Miss. 416; Howd v. M. O.R.R. Co., 50 Miss. 178; L. N.R.R. Co. v. Thomas, 40 So. 257, 87 Miss. 600; A. V. Ry. Co. v. White, 63 So. 345, 106 Miss. 141; Vaney v. Samuels, 107 So. 517, 142 Miss. 472; Y. M.V.R.R. Co. v. Downs, 67 So. 962, 109 Miss. 140; Hand v. Boatner, 94 So. 162, 139 Miss. 292; Austin v. M. O.R.R. Co., 99 So. 3, 134 Miss. 226; Seifferman v. Leach, 138 So. 563, 161 Miss. 853; Brown v. Coley, 152 So. 61, 168 Miss. 778; Hooks v. Mills, 57 So. 545, 101 Miss. 91; Wilson Company v. Holmes, 177 So. 24, 180 Miss. 361; Aponaug Mfg. Co. v. Hammond, 185 Miss. 198, 187 So. 227; Gulfport Fertilizer Company v. Bilbo, 174 So. 65, 178 Miss. 791; Mitchell v. Brooks, 147 So. 660, 165 Miss. 826; Gulfport Creosoting Co. v. White, 157 So. 86, 171 Miss. 127; C. G.R.R. Co. v. Coleman, 160 So. 277, 172 Miss. 514; N.O. N.E.R.R. Co. v. Penton, 100 So. 521, 135 Miss. 571; Eagle Cotton Oil Company v. Sollie, 185 Miss. 475, 187 So. 506; Samulski v. Menasha Paper Co., 147 Wis. 285, 133 N.W. 142, 145; McCarthy v. Bangor, etc., Co., 112 Me. 1, 90 A. 490, 492, L.R.A. 1915B, 140, 142; Myers v. Time, 161 Miss. 872, 138 So. 578; 22 Corpus Juris., p. 502; S.H. Kress Co. v. Sharp, 156 Miss. 693, 126 So. 650; L. Moore on Facts, 415; 22 C.J. 783; N.O. N.E.R.R. Co. v. Holsomback, 151 So. 720, 168 Miss. 493; Kramer Service Co. v. Wilkins, 184 Miss. 483, 186 So. 625; Dr. Pepper Bottling Co. v. Gordy, 164 So. 236, 174 Miss. 392; Masonite Corporation v. Hill, 154 So. 295, 170 Miss. 158; Williams v. Lumpkin, 152 So. 842, 169 Miss. 146; Shell Petroleum Corporation v. Eagle Lumber Supply Co., 158 So. 331, 171 Miss. 539; Burnside v. Gulf Refining Company, 148 So. 219, 166 Miss. 460; Y. M.V.R.R. Co. v. Green, 147 So. 332, 167 Miss. 137; Hercules Powder Co. v. Calco, 138 So. 583, 161 Miss. 860; M.P. Transport Co. v. Beard, 176 So. 156, 179 Miss. 764; Y. M.V.R.R. Co. v. Lamensdorf, 178 So. 80, 180 Miss. 426; Teche Lines v. Bounds, 179 So. 747, 182 Miss. 638; Mutual Benefit Health Accident Association v. Johnson, 186 So. 297; Blass v. Virgin Pine Lumber Company, 50 F.2d 29.
No omission or act of appellants proximately contributed to cause appellee to have tuberculosis under the facts in this record.
Tri-State Transit Company v. Martin, 181 Miss. 388, 179 So. 349.
On proximate cause, see Thompson v. Mississippi Central Railroad, 166 So. 353, 175 Miss. 547; Howell v. Railroad Company, 75 Miss. 242, 21 So. 746; Clisby v. Mobile Ohio Railroad Co., 78 Miss. 937, 29 So. 913.
A party is not required to foresee every eventuality or possibility; precaution is not a duty where no reasonable ground for apprehension exists. See Shuptrine v. Hebron, 182 Miss. 315, 180 So. 620, and Illinois Central Railroad v. Bloodworth, 166 Miss. 602, 145 So. 333.
The Supreme Court of Mississippi has, in numerous recent cases, declared that the alleged acts on which liability was sought to be predicated were not the proximate cause thereof: Holloway v. Coker, 187 Miss. 310, 696, 192 So. 857; Kramer v. Wilkins, 184 Miss. 483, 186 So. 625, in which it is said that the fact that negligence and injury co-exist is not sufficient, but the injury must have been caused by the negligence; and Favre v. Louisville Nashville R.R. Co., 178 So. 327, 180 Miss. 843. See also Crosby v. Burge, 1 So.2d 504, Advance Sheets, May 8, 1941.
Juror Payne, being a first cousin of attorney Clayton Lewis, one of the members of the firm of Mars Lewis, employed to represent the appellee in this case on a contingent fee basis, and active in the trial of the case, was an incompetent juror to try the case, and it was error on the part of the presiding judge to overrule motion of the appellants to withdraw the case from the jury and to enter a mistrial.
Berbette v. State, 67 So. 853, 169 Miss. 94; Cody v. State, How. 4 Miss. 27; 24 Cyc. 275-276; Cashin v. Murphy, 103 So. 787, 138 Miss. 583; Davis v. Searcy, 30 So. 823, 79 Miss. 292; Dennis v. State, 50 So. 499, 96 Miss. 96, 26 A.L.R. (N.S.) 36; Dodd v. Kelly, 65 So. 561, 107 Miss. 471; Ed Tumey v. State of Ohio, 71 L.Ed. 749, 273 U.S. 510; Ferriday v. Selser, How., 5 Miss. 506; Ferguson v. Brown, 21 So. 603, 75 Miss. 214; Garner v. State, 25 So. 363, 76 Miss. 515; Hubbard v. Rutledge, 57 Miss. 7; L., N.O. T. Rwy. Co. v. Mask, 2 So. 360, 64 Miss. 738; McCarty v. State, 26 Miss. Cush. 290; Miss. Public Ser. Co. v. Collier, 183 Miss. 271, 183 So. 379; Miss. Const. 1890, Secs. 14, 31; Nelson v. Dickson, 63 Ga. 682, 36 Am. Rep. 128; 16 R.C.L. 259, par. 77; Shireman v. Wildberger, 86 So. 657, 125 Miss. 499; U.S. Const., Art. 7; U.S. Const., Art. 14, Sec. 1; Wilbe Lbr. Co. v. Calhoun, 140 So. 680, 163 Miss. 81; Y. M.V. Rwy. Co. v. Kirk, 68 So. 710, 102 Miss. 41, 42 L.R.A. (N.S.) 1172, Ann. Cas. 1914C, 968.
The court below erred in not withdrawing the case from the jury and entering a mistrial because of prejudicial and improper argument to the jury on part of one of the counsel for appellee and in overruling improper and prejudicial arguments of said counsel to the jury.
Brush v. Laurendine, 150 So. 818, 168 Miss. 7; Dement v. Summers, 175 Miss. 290, 165 So. 791; J.J. Newman Lbr. Co. v. Norris, 94 So. 881, 130 Miss. 751; Morse v. Phillips, 128 So. 336, 157 Miss. 452; Morrell Packing Co. v. Branning, 124 So. 356, 155 Miss. 376; N.O. N.E.R.R. Co. v. Jackson, 105 So. 770, 140 Miss. 375; Pickwick Greyhound Lines, Inc., v. Silver, 125 So. 340, 155 Miss. 765 ; White Mar. Gro. Co. et al. v. John, 153 Miss. 60, 121 So. 825.
Mars Lewis and Earl Richardson, all of Philadelphia, and Reily Parker, of Meridian, for appellee.
In the case at bar there is ample testimony to sustain the verdict of the jury to the effect that sulphur dioxide gas is in fact dangerous when inhaled into the human system, and that the defendant knew of such danger or could and would have known thereof by the exercise of proper care; that the plaintiff did not know of such danger and was given no warning concerning the same; that there are known devices in general use and easily attainable which would prevent or lessen this danger, which were not furnished to the plaintiff, and the plaintiff was injured as a proximate result thereof.
In the case of American Sand Gravel Company v. Reeves, 168 Miss. 608, 151 So. 477, the duty of the master to warn an employee concerning dangers to which the employee is exposed is stated.
See, also, Whitehead v. Newton Oil Mfg. Co., 105 Miss. 711, 63 So. 219; Illinois Cent. R.R. Co. v. Gill, 88 Miss. 417, 40 So. 865; Ness Creameries v. Barthes, 170 Miss. 155 So. 222; Benjamin v. Davidson-Gulfport Fertilizer Company, 169 Miss. 162, 152 So. 839; Wilbe Lumber Co. v. Calhoun, 163 Miss. 80, 140 So. 680; National Casualty Company v. Hoage, 73 F.2d 850.
The defendants next contend that as a matter of law, the juror, Payne, was disqualified and the trial court was in error in refusing to grant a new trial for that reason. The objection urged against this juror is that he was related to one of the attorneys for the plaintiff. When full and complete information may be had by questioning a juror by counsel, such as is required by Section 2068 of the Code of 1930, the trial judge should not be held in error for not obtaining for counsel the information which they should have obtained for themselves. The law does not offer any relief in such cases.
See Miller v. L.N.A. C.R.R. Co., 25 A.S.R. 416; Wassum v. Feeney, 23 Am. Rep. 258; Williams v. The State, 37 Miss. 407.
Our court has stated that when an opportunity for questioning has been afforded and not used that the information that might have been obtained but was not, is waived and cannot be complained about.
George v. State, 39 Miss. 570; Wilbe Lbr. Co. v. Calhoun, 163 Miss. 80, 140 So. 680; Kohl v. Lehlback, 40 L.Ed. 432.
The jury was instructed that the argument was not proper and to disregard the same in the manner and in the language selected by the defendants. When this was done the wrong had been corrected in the manner preferred by the defendants, except that a mistrial was not entered.
See Brush v. Laurendine, 168 Miss. 7, 150 So. 818; Foster v. Shepherd, 101 N.E. 411, 45 L.R.A. (N.S.) 167; Mitchell v. Mystic Coal Company, 179 N.W. 428; Winters v. Duncan, 220 S.W. 219.
The appellee, Stribling, brought this action in the circuit court of Neshoba County against the Mississippi Power Company, the Mississippi Utilities Company and J.B. Gully, their manager, to recover damages for an injury suffered by him while a servant of said companies, which he alleged was caused through the fault of the defendants, and recovered judgment in the sum of $30,000, from which judgment the Power Company and the Utilities Company appealed. Stribling charged in his declaration that as servant of the Power Company and Utilities Company it was his duty to service and keep in repair refrigerators sold to their customers by the Power Company; that they were electric refrigerators, the refrigerant being sulphur dioxide gas; that in servicing the refrigerators it was often necessary to purge them of the sulphur dioxide gas and when through making the repairs replace the gas; that during the year 1935 while so engaged he contracted tuberculosis which disabled him physically for life; that the gas was highly inflammatory to the eyes, throat and lungs which resulted in his contracting tuberculosis; that the plaintiff was unaware of the dangers of breathing the gas and the defendants wholly failed to inform him of such dangers and how to protect himself against them, although there existed complete protection which they could have furnished him at small cost.
The defendants assign and argue several alleged errors committed by the court below; among those which will be considered and disposed of first is that they were entitled to a directed verdict, and, if mistaken in that, a new trial on the ground that the verdict of the jury was against the overwhelming weight of the evidence. Both contentions are without merit although the evidence was conflicting to the extent that the jury would have been justified under the law in finding a verdict either way. Stribling testified, and he was substantially supported by other witnesses experienced in and observers of the services he was required to perform, that in repairing such refrigerators it was generally necessary to first purge them of the gas, make the repairs and then replace the gas; that if no protection therefrom was used the gas was highly inflammatory to the nose, throat and lungs causing the eyes and nose to run water and constant coughing and pains in the lungs; that the plaintiff was not aware of the dangers incident thereto and the defendants did not warn him of them and furnish him protection against them, as they could have done at little cost; that his lungs became chronically inflammed and thereby a fertile field for tubercular germs, and that the result was he contracted tuberculosis causing him permanent disability. Dr. Harrington, testifying to the dangers of sulphur dioxide gas used the following language: "Well sulphur dioxide gas has an irritating effect. It irritates the mucous membrane that it comes in contact with. This gas as it comes in contact with the membranes is converted into sulphuric acid. Sulphuric acid is one of the most caustic acids we have, destroying the tissue that it comes into contact with, and the amount of sulphuric acid liberated or formed by coming in contact with the mucous membrane would depend on the amount of gas inhaled, and that in turn would depend on the amount of sulphuric acid formed. The liberation of sulphur dioxide can be done, because it can be inhaled and the inhalation causes it to cause sporadic spasm of the throat. When inhaled in concentrated form it causes inflammation of the linings of bronchial tubes and the air passages become involved as a result of the exposure to the gas. In my opinion a more serious effect would be produced by the inhalation of the gas in a weak dilution over a long period of time than it would be by one or two inhalations of concentrated solution in short duration of time. In other words the gas would act on the lungs and the respiratory tract and have the same effect towards causing tuberculosis that a farmer plowing up his field in the spring of the year would have in the making of the ground, which is the preparation of the soil. We all come in contact with tuberculosis every day of our life. If our resistance is up to par it has no bad effect, but when anything happens to our system, that is to say whatever part of our system, that lowers our resistance in that area, whether it be the kidneys or what not, and the bug is planted there, then he goes to growing just like your corn grown in the field when you fix the land. If the field is right for your corn to grow, then it goes to growing, and the bug gets into a field that is irritated then he goes to growing, and that would be the action of the SO[2] dioxide in causing tuberculosis."
Dr. Harrington was supported in that respect by Drs. Flynt, Vosburgh and Sheffield and one Mayo who owned and operated the Philadelphia Electric Company. The witnesses for the defendants, including physicians, admitted the highly inflammatory nature of the gas, but denied that they had ever known or heard of tuberculosis resulting therefrom. The evidence showed, however, that Turner Gully, another of the companys' employees, who was engaged to a large extent in the same character of service that the plaintiff was employed in, contracted tuberculosis while so employed. There was no conflict in the evidence to the effect that there were at least two perfect methods of protection against the harmful effects of the gas which could have been furnished by the defendants at small cost, namely a gas mask, a bucket of lye water for draining the gas into with a tube. According to plaintiff's evidence the defendants neither warned him of the dangers of inhaling the gas nor furnished him any means of protection therefrom. On the other hand, the evidence for the defendant tended to show that they kept in their office a bucket of lye water for the purpose, and so informed the plaintiff. The plaintiff testified that while engaged in his duties during the year 1935 he had a chronic cough and his lungs were inflamed to a high degree and pained him a great deal.
The position of the defendants is that they are not liable in damages for the injury to the plaintiff caused by tuberculosis because they had no notice either by experience or otherwise that the inhaling of the gas might reasonably result in that disease. On the other hand, the plaintiff contends and the court below so held that if the evidence showed (as it did with little conflict) that the inhaling of the gas might reasonably cause some serious harm to the plaintiff, then it was the duty of the defendants to warn him against such harm and furnish him the means of protection therefrom; that it did not devolve on the plaintiff to show that tuberculosis was one of the results that might be expected; in other words, that plaintiff made out his case by showing that serious injury might result without his putting his finger on the particular serious harm. The following authorities support the plaintiff's position: American Sand Gravel Co. v. Reeves, 168 Miss. 608, 151 So. 477; Whitehead v. Newton Oil Mfg. Co., 105 Miss. 711, 63 So. 219; Illinois Cent. R. Co. v. Gill, 88 Miss. 417, 40 So. 865; Ness Creameries v. Barthes, 170 Miss. 865, 155 So. 222; Benjamin v. Davidson-G. Fert. Co., 169 Miss. 162, 152 So. 839; Wilbe Lbr. Co. v. Calhoun, 163 Miss. 80, 140 So. 680; National Casualty Co. v. Hoage, 64 App. D.C. 33, 73 F.2d 850. In the Gravel Company case, the court held that the master is charged with knowledge of the usual and ordinary dangers and hazards to which he is exposing his employee and is bound to know the nature of the constituents and general characteristics of the substances used in and about his business or in that part thereof wherein an injury may occur or has occurred; and this rule is applied without serious question in cases of the use of dangerous chemicals. In the Newton Oil Co. case the plaintiff was injured by a drop of sulphuric acid getting into his eye. He had not been warned of the danger. He was directed by one in authority to assist the carpenter in the repair of certain beams or braces which supported a mixing apparatus and a tank containing sulphuric acid. There were leaks in the tank through which the acid dropped. This was known to those in charge of the company's plant but was unknown to the plaintiff. He was not informed of the leak or warned of the danger attending the work about the tank. By reason of the acid getting into his eye he lost the eyesight and the other eye was affected to the extent that its functions were impaired. Judgment for the plaintiff was affirmed. In the Illinois Central Railroad case the plaintiff was injured by creosote getting into his eye. He had not been warned of this danger by the Railroad Company. The court held that the fact that the master failed to warn the plaintiff was sufficient to sustain the liability. In the Ness Creameries case the deceased was injured when a pipe containing ammonia was caused to break and release the ammonia which was inhaled by him resulting in his death. The basis of liability was that the pipe containing the ammonia was not reasonably safe due to weakness developed from vibration and crystallization. The evidence for the defendant in that case showed that the pipe was attached to the ammonia tank in the usual and ordinary manner. The judgment for the plaintiff was affirmed. In the Davidson-Gulfport Fertilizer Co. case the court held that whether the master, in failing to furnish a respirator to the servant while unloading a car of phosphate rock dust and properly ventilating the car, proximately caused bronchial pneumonia resulting in the servant's death was a question for the jury; and that whether the master knew or by reasonable care should have known that the inhalation of the dust by the servant was injurious, and that furnishing a respirator or other protection would have prevented the pneumonia, was a question for the jury. In the Wilbe Lumber Company case the plaintiff was injured while working about a rip-saw. He claimed that the saw was unsafe because not provided with a guard which would have prevented the injury. The evidence showed that some mills used the guards, while others did not, but the tendency was toward a general use thereof. The judgment for the plaintiff was affirmed. The National Casualty Company case, decided by the U.S. Court of Appeals for the District of Columbia, is strongly in point. The court held that where the evidence showed that a janitor, from the time of inhaling sulphur dioxide gas in an apartment house basement until his death approximately five months later, was an invalid in care of physicians suffering constantly from an inflammatory condition of the bronchial tubes, it was sufficient to show that there was a causal connection between the exposure to the gas and death without intervening and independent cause. There was sufficient evidence to put the case to the jury on the issue of liability, and it cannot be said with a sufficient degree of confidence that the verdict of the jury was against the overwhelming weight of the evidence.
The plaintiff's attorneys, one of whom was Clayton Lewis, represented him on a contingent fee basis alone. After the case had been on trial for four days and was about ready for argument before the jury, the defendants' attorneys discovered for the first time that Payne, one of the jurors, and the attorney, Clayton Lewis, were first cousins, their mothers were sisters, and Mr. Lewis knew of that fact and said nothing about it to any of defendants' attorneys. Thereupon the latter made a motion that the jury be discharged on that ground and another trial be granted. The motion was overruled to which action of the court defendants excepted. Evidence was taken on the trial of the motion and a special bill of exceptions was signed by the Judge embodying the facts in reference to the matter. The facts are undisputed. They were substantially as follows: A jury of twelve men was empaneled and presented to the parties. Four of them were challenged and stood aside. However, before that was done, Mr. Reily, one of the attorneys for the plaintiff, asked the members of the jury whether any of them were related to any of counsel on either side. They answered that they were not. Four other jurors were put in the place of the four excused. Neither the court nor any of the attorneys on either side asked these four jurors as to such relationship. When Mr. Reily asked the question of the first twelve jurors the four substitute jurors were in the court room and could have heard the question and answers.
In considering this question it should be borne in mind that the plaintiff's attorneys in this case were parties in interest, although not nominal parties. They had the same character of interest as the plaintiff in the case. Section 31 of the Constitution provides among other things that the right of trial by jury shall remain inviolate. It is the duty of the court to see that a competent, fair, and impartial jury is empaneled. McCarty v. State, 26 Miss. 299; Garner v. State, 76 Miss. 515, 25 So. 363; Davis v. Searcy, 79 Miss. 292, 30 So. 823; Ferriday v. Selser, 4 How. 506, 5 Miss. 506; Hubbard v. Rutledge, 57 Miss. 7; Louisville R. Co. v. Mask, 64 Miss. 738, 2 So. 360; Berbette v. State, 109 Miss. 94, 67 So. 853; Dennis v. State, 96 Miss. 96, 50 So. 499, 25 L.R.A. (N.S.) 36; Cody v. State, 3 How. 27; Mississippi Public Service Company v. Collier, 183 Miss. 271, 183 So. 379; Wilbe Lumber Company v. Calhoun, 163 Miss. 80, 81, 140 So. 680. This action of the court was error. A lawyer's duties are not confined alone to serving his clients. He is an officer of the court and as such is called on to do and say whatever is necessary to promote the fair administration of justice. Mr. Lewis should have called the court's and opposing counsel's attention to his relationship to the juror. Later on in connection with another question there will be stated the effect that ought to be given this error.
During his argument on behalf of the plaintiff, Mr. Richardson, one of his attorneys, stated that the defendants, the Mississippi Power Company and the Mississippi Utilities Company both belonged to the Commonwealth Southern Corporation which he said was the largest corporation in the United States and England, and that these two defendant corporations "call themselves Mississippi Power Company and Mississippi Utilities Company but that they did not have a thing in the world to do with Mississippi except collect Mississippi dollars and kill Mississippi people," and further, that Hon. Wendell L. Willkie, candidate for President of the United States on the Republican ticket, was once president of the Commonwealth Southern. The defendants' attorneys objected to this argument, moved the court for a mistrial, that the jury be discharged and another trial granted. Thereupon the court instructed the jury orally and later in writing not to be influenced by that language used by Mr. Richardson. Defendants' motion for a mistrial was overruled, and that action of the court was excepted to and is assigned and argued as error. In Newman Lumber Co. v. Norris, 130 Miss. 751, 94 So. 881, the plaintiff's attorney in arguing a case before the jury used this language, "Who is the J.J. Newman Lumber Company? It is a corporation. It has taken your land. It has taken your timber. It has taken your homes." The court held that this argument was harmful; that "it was such grave misconduct in counsel as that it is doubtful whether its effect on the jury was obviated by the admonition of the court. Counsel may so abuse the privilege of advocacy as to put it beyond the power of the court to remedy the harm done the opposite party." The judgment of that case was reversed on that ground and another. These two errors must have had a very substantial influence in bringing about the verdict for the plaintiff in this case, especially in fixing the amount of the verdict. The judgment should be reversed on that account.
The defendants assign as error the action of the court in refusing to instruct the jury that the plaintiff was not a servant of the Mississippi Utilities Company and for that reason they should render a verdict for that company; and the giving of instructions for the plaintiff submitting that question to the jury. There was really no substantial evidence that the plaintiff was employed alone by the Utilities Company. The evidence showed without any real conflict that the Mississippi Power Company was engaged at Philadelphia in furnishing the public electric power, and in addition selling and servicing electrical refrigerators, and the Utilities Company was engaged in furnishing the public water and ice; that the Commonwealth and Southern Corporation owned the entire stock of both of those companies; that J.B. Gully was their general manager at Philadelphia; that originally the plaintiff, Stribling, was employed by the Utilities Company and Turner Gully was employed by the Power Company, but that later on the two companies consolidated and combined their business in Philadelphia, made all the employees joint employees of both companies. J.B. Gully, the manager, so testified as did the plaintiff and Turner Gully. Under this arrangement Turner Gully and the plaintiff often at the request of both companies and their manager, Gully, serviced refrigerators sold by the Power Company. In the case of Sawmill Co. v. Bright, 116 Miss. 491, 77 So. 316, the plaintiff was employed by the Sawmill Construction Company, was paid by that Company, but it was the practice of the Sawmill Company and the Lumber Company to work their respective employees in common and to exchange the service of their employees whenever either thought proper to do so. The court held that all the employees therefore were common to both. There was no error therefore in refusing the instructions requested by the defendants and granting the ones given the plaintiff on this question.
We think the assignments of error addressed to other instructions granted and refused are of so little merit as not to call for discussion.
The assignment that the verdict is excessive and that the judgment ought to be set aside on that ground is not decided for the reason that having determined that a peremptory would not be proper and that the verdict on liability for some amount would not be against the overwhelming weight of the evidence, but that the judgment must be reversed for the two reasons above given, it is not necessary to enter into discussion whether the amount of the vacated verdict was excessive or whether all the elements allowed to be considered by the jury in arriving at the amount of the verdict were proper elements. We do not consider or decide whether the development of tuberculosis was, under the evidence, a probable consequence of negligence, leaving this open for more deliberate consideration on another trial.
Reversed and remanded.
DISSENTING OPINION.
I concur in the holding that the court below committed no error in refusing (1) to grant the appellant a directed verdict; and (2) to set the verdict aside on the weight of the evidence.
I express no opinion as to error, or no, in the granting and refusing of the numerous instructions appearing in the record.
I dissent from the holding that error appears in the rulings of the court below on the appellants' complaints as to the juror Payne, and the argument of the appellee's attorney to the jury, and therefore unless error appears in the instructions, I am of the opinion that the judgment of the court below should be affirmed, insofar as it imposes liability.