Opinion
No. 33974.
May 6, 1940. Suggestion of Error Overruled January 20, 1941.
1. MASTER AND SERVANT.
Where work of laundry employee was more piece work than hours work, and when she got through with each piece of work she had nothing to do until she was confronted with another piece, and often there intervened a considerable length of time, recovery for injury from lifting packages could not be predicated on alleged fact that employee was required to work more than 10 hours a day and 60 hours a week in violation of statute and that as a result she became so weakened physically that she was unable to perform the duties required of her (Code 1930, sec. 4653).
2. MASTER AND SERVANT.
The statute abolishing the assumption of risk doctrine deals alone with risks caused by negligence of the master, not risks incident to the employment (Code 1930, sec. 513).
3. MASTER AND SERVANT.
The servant accepting employment for performance of specific duties takes upon himself the natural and ordinary perils incident to such service, notwithstanding statute abolishing the assumption of risk doctrine (Code 1930, sec. 513).
4. MASTER AND SERVANT.
Where work of lifting and placing laundry packages on shelves was such as could have been performed by any normal man or woman without danger, lifting and placing the packages on the shelves was a "risk of employment" which laundry employee assumed so as to be precluded from recovering for alleged injury therefrom in absence of negligence on part of employer (Code 1930, sec. 513).
SMITH, C.J., and ETHRIDGE, J., dissenting.
APPEAL from the circuit court of Lauderdale county, HON. ARTHUR G. BUSBY, Judge.
Jacobson Snow, of Meridian, for appellants.
A servant accepting employment for the performance of specific duties takes upon himself the natural and ordinary perils incident to the service.
Howd v. M.C.R.R., 50 Miss. 178; Yazoo City Truck Co. v. Smith, 28 So. 807, 78 Miss. 140; Natchez Cotton Mill Co. v. McLain, 33 So. 723; Y. M.V.R.R. Co. v. Hawkins, 61 So. 161, 104 Miss. 55; Cumberland Tel. Tel. Co. v. Cosnahan, 62 So. 824, 105 Miss. 615; Ingram-Day Lbr. Co. v. Joh, 64 So. 934, 107 Miss. 43; Y. M.V. Ry. Co. v. Hullum, 80 So. 645, 119 Miss. 229; Crossett Lbr. Co. v. Land, 84 So. 15, 121 Miss. 834; Austin v. M. O.R.R. Co., 99 So. 3, 134 Miss. 226; G. S.I.R.R. v. Hales, 105 So. 458, 140 Miss. 829; Vehicle Woodstock Co. v. Boles, 128 So. 98, 158 Miss. 346; Graham v. Goodwin, 156 So. 513, 170 Miss. 896; Anderson-Tully Co. v. Goodin, 163 So. 536, 174 Miss. 162; M. O.R.R. v. Clay, 125 So. 819, 156 Miss. 463.
There was no causal connection between plaintiff's injuries and any act of appellants. It is well established that in order to warrant a recovery for alleged injuries negligence must not only be proved but causal connection between the negligence claimed and the injury must be shown.
Kramer Service Co. v. Wilkins, 186 So. 625; Pietri v. L. N. Ry. Co., 119 So. 164, 152 Miss. 185; Thompson v. M.C.R. Co., 166 So. 353, 175 Miss. 547; C. G.R.R. Co. v. Coleman, 160 So. 277, 172 Miss. 514; J.C. Penney Co. v. Scarbrough, 186 So. 316.
It was intimated and contended on the trial of the case that appellee had been required by appellants to work more than 10 hours per day and more than 60 hours per week in violation of Section 4653 of the Mississippi Code 1930 Annotated. But, appellee was not injured while working over-time and did not claim she was injured while working over-time. The accident is alleged to have occurred around 2 o'clock in the afternoon, and it was never contended appellee went to work before 7:30 to 8 o'clock in the morning. It was not shown how long appellee worked any particular day during the week of the accident, and we feel justified in saying she had not been on duty on the day of the accident, at the time of its alleged occurrence, more than six hours. The statute is in derogation of the common law and, therefore, must be strictly construed. The accident occurred at a time when appellee was within the ten hour period permitted, and the statute was not at the time being violated. In order to recover for a violation of the statute undoubtedly the injury must occur at the time of the violation, and as a proximate result thereof. There must be causal connection between the violation of the statute and the injury.
The fact that there has been a violation of an hour's statute does not impose upon the employer violating the statute the obligation of an insurer, and unless the obligation of an insurer was imposed upon appellants in this case under the facts disclosed by the record no recovery can be had.
A.T. S.F.R.R. Co. v. Swearengen, 60 L.Ed. 317; St. L.I.M. S.R.R. Co. v. McWhorter, 57 L.Ed. 1179, 1187; Osborne v. C. O. T.P.R.R. Co., 158 Ky. 176, 164 S.W. 818; Bjornsen v. N.P.R.R. Co., 84 Wn. 220, 146 P. 575.
If there was any violation of the statute the violation was by appellee voluntarily and without the knowledge of appellants.
Lloyd v. N.C.R.R., 151 N.C. 536, 66 S.E. 604; Melville v. Butte-Balaklona Copper Co., 47 Mont. 1, 130 P. 441; Smith v. A.T. S.F., 39 Tex. Civ. App. 468, 87 S.W. 1052.
Gilbert Cameron, E.T. Strange, R.M. Holmes, and E.A. Dunn, all of Meridian, for appellee.
Among the non-delegable duties of a master is that duty imposed by statute to establish and limit the hours of toil for women employees so as not to exceed ten hours a day or sixty hours a week, except in the exceptions written in the statute. A failure in this regard would be a breach of duty, not alone towards the public generally, but specifically a breach of duty towards the individual.
Sec. 4653, Code 1930.
The facts of common knowledge of which the courts may take judicial notice establish conclusively that there is reasonable ground for holding that to permit women to work in a mechanical establishment, or factory, or laundry more than ten hours in one day is dangerous to the public health, safety, morals or welfare.
Holden v. Hardy, 169 U.S. 366, 42 L.Ed. 780; Muller v. Oregon, 208 U.S. 412, 52 L.Ed. 551; Miller v. Wilson, 236 U.S. 373, 59 L.Ed. 628; Stettler v. O'Hara, 69 Or. 519, 139 P. 743; People v. Elleding, 254 Ill. 589, 98 N.E. 982; Am. Car, etc., v. Armentraut, 214 Ill. 509, 73 N.E. 766; Boucher v. Larochille, 74 N.H. 433, 68 A. 870; Buchner v. People (Colo.), 124 Am. St. Rep. 143; Cragg v. Los Angeles, 154 Cal. 663, 98 P. 1063; Gundin v. Chicago, 177 U.S. 183, 44 L.Ed. 725; Inland Steel v. Yedinak, 172 Ind. 423, 87 N.E. 229; Jacobson v. Mass., 197 U.S. 11, 49 L.Ed. 643; Lanton v. Steele, 152 U.S. 133, 38 L.Ed. 385; Low v. Reese Printing Co., 41 Neb. 127, 43 Am. St. Rep. 676; McCrary v. Southern Ry., 83 S.C. 103, 65 S.E. 3; Merrill v. Los Angeles, etc., 158 Cal. 499, 111 P. 334; Perlin v. N.Y., etc., 102 App. Div. 71, 92 N.Y. Supp. 468; Penn. Co. v. McCarffery, 139 Ind. 430, 38 N.E. 67; Reed v. Southern Ry., 75 S.C. 162, 55 S.E. 218; Republic Iron, etc., v. Ohler, 161 Ind. 393, 68 N.E. 901; Ross v. Schooley, 257 Fed. 290, 168 C.C.A. 374, 63 L.Ed. 803; Soon Hing Laundry v. Crowley, 113 U.S. 703, 28 L.Ed. 1145; St. Louis, etc., v. McWhirter, 145 Ky. 427, 140 S.W. 672; St. Louis, etc., v. Kelton, 28 Tex. Civ. App. 137, 66 S.W. 887; Ritchie v. Wayman (Ill.), 91 N.E. 695; Starns v. Albion, 147 N.C. 556, 61 S.E. 525; 39 C.J. 294, sec. 420; Handle Co. v. Jack, 149 Miss. 465; Zajkowski v. Am. Steel Co., 258 Fed. 9.
Appellants were charged with the knowledge that to require appellee to toil in excess of the statutory limit of ten hours a day or sixty hours a week would likely cause injury to her.
Muller v. Oregon, 52 L.Ed. 551; Holden v. Hardy, 42 L.Ed. 780; and the other cases cited above.
We respectively submit that the lifting of the bundles on the day in question merely precipitated the injury. The actual cause was her weakened condition caused by the strain of overwork for many weeks preceding. Having toiled in excess of ten hours a day and sixty hours a week over a long period of time preceding the date of the injury so weakened her body as to make her susceptible to the devastating effect of lifting the bundle in question. The lifting of the bundle did not supersede the original negligence.
Columbus, etc., R. Co. v. Lee, 115 So. 572, 784, 149 Miss. 543; Public Serv. Corp. v. Watts, 150 So. 192, 168 Miss. 235.
The violation of the statute in question cooperated with the immediate act of lifting the bundle of bib-aprons over her head, in such way as to constitute a succession of events so linked together as to form a natural whole.
Gilson v. Delaware, etc., 36 Am. St. Rep. 845; Seith v. Commonwealth, etc., 241 Ill. 252, 132 Am. St. Rep. 204; Miller v. Union Pac. Ry., 290 U.S. 227, 236; Lawrence v. Southern Ry., 169 S.C. 1, 14, 167 S.E. 839; L. N.R.R. v. Daniels, 135 Miss. 33, 99 So. 434; 45 C.J. 924; Cumberland v. Woodham, 99 Miss. 318, 54 So. 891; Birmingham, etc., v. Hinton, 158 Ala. 470, 48 So. 546; Gulf, etc., R. Co. v. Simmons, 150 Miss. 506, 117 So. 343; Hartwell Handle Co. v. Jack (Miss.), 115 So. 587.
Whether or not appellee's injuries were proximately produced by the violation of the statute is properly a question of fact for the determination of the jury, and the jury having passed on that question adversely to appellants their findings should not be disturbed.
45 C.J. 1318; Lee County, etc., v. Middlebrooks, 161 Miss. 422, 137 So. 108; Southern Ry. v. Floyd, 99 Miss. 519, 55 So. 287; Terry v. N.O., etc., 103 Miss. 679, 60 So. 729.
Appellee was a frail woman, anemic and sickly; and appellants knew this; she requested permission to place the heavy packages of bib-aprons in the lower shelves and was directed to place them in the higher shelves, over her head, or get her another job. This issue has been settled by the jury, the jury finding by their verdict that such direction and threat was made.
Austin v. M. O., 99 So. 3, 134 Miss. 226; Goodyear Yellow Pine Co. v. Mitchell, 150 So. 792, 168 Miss. 152; Hardaway Const. Co. v. Rivers, 180 So. 800.
The refusal of appellants to furnish appellee assistance was a determination by them that no assistance was needed, and this determination was erroneous under the circumstances of the long hours and arduous tasks required of and performed by appellee. Appellee was given to understand that if she did not place the packages of bib-aprons on the shelf above her head that she could get her time and seek other employment.
Everett Hardware Co. v. Shaw (Miss.), 172 So. 337, 173 So. 411; Sheridan v. Brooklyn, etc., 36 N.Y. 39, 93 Am. Dec. 490.
Argued orally by E.L. Snow, for appellants, and by Chas. B. Cameron, for appellee.
The appellee brought this action in the circuit court of Lauderdale county against appellant to recover damages for a personal injury alleged to have been received by her in the capacity of servant of appellant through the latter's negligence. The trial resulted in a verdict and judgment in her favor in the sum of $5,000, from which judgment appellant prosecutes this appeal.
The ground of appellee's action is that appellant, in violation of the labor statute governing the working hours of women, Section 4653, Code of 1930, required her to work more than ten hours a day and sixty hours a week, which caused her to become so weakened physically that she was unable to perform some of the duties required of her, one of which was lifting and placing twelve-pound packages of linen on a shelf approximately five feet high. She alleged that while so lifting and placing one of these packages, the strain was such as to rupture a ligament in her abdomen resulting in a falling of the womb.
We are of opinion the court erred in refusing appellant's request for a directed verdict, and we reach that conclusion upon the following considerations. Without any substantial conflict, the evidence showed the following facts: Appellant operated a laundry and dry cleaning business in the City of Meridian, and in connection therewith, in a separate building nearby, a linen rental supply business. The rental linen consisted of napkins, barber face towels and steam towels, smocks, table cloths, waiters coats and bib aprons. The linen room in size was fifteen by twenty feet. In the center of the room, there was a table used in handling the packages of linen. On one side of the room, there were two shelves twelve inches wide, one two feet above the floor level and the other a little over five feet above the floor level, on which the packages of clean linen were kept. There were bins in which soiled linens were temporarily placed. Appellee alone was in charge of this linen room. She had a key to it and went in and out to suit her convenience in the performance of her duties. Creel, with the assistance of Birdsong, delivered the packages of clean linen to the customers and brought back the soiled linen to be relaundered. For this purpose, they used a truck. Only two trips daily were required. In the morning about eight o'clock, they would leave with a load of clean linen to be delivered to customers, and in about two hours they would return with a load of soiled linen. Again, around two o'clock, they went out with another load of clean linen to be delivered to customers and returned about four o'clock in the afternoon with a load of soiled linen taken up. The soiled linen was deposited by Creel and Birdsong in the bins. The clean linen was brought from the laundry by a servant and placed on the table in the linen room. It was a part of appellee's duties to place the packages of clean linen on the shelves. She was required to use the top shelf for the bib aprons which were the heaviest packages. During the trial, five packages of different kinds of linen were brought in and weighed in the presence of the jury. The heaviest package was bib aprons, which weighed twelve pounds, and the lightest was napkins, which weighed three and one-half pounds. It was her duty to assort the soiled linen in the bins for return to the laundry. A servant would come and return them for relaundering. The servants, Creel and Birdsong, handled the linen packages in and out of the linen room. There was a sewing machine in the linen room. Appellee was required to repair the damaged linen, and, when necessary, use the sewing machine for that purpose. Some days, three or four customers would come direct to the linen room for their purposes. Appellee was in poor health when she accepted employment with appellant, and continued so until she quit the service. There were only from six to eight of the bib apron packages (twelve pound packages) which had to be placed on the shelf daily. She testified that she was required to place these packages on the top shelf, and on account of her weakened condition, caused by over hours of work, that while so placing one of the packages, there was a rupture in her abdomen resulting in the falling of her womb, for which she was later operated on. She testified further that she told Mr. Hutton, the superintendent, of her physical condition and the strain of lifting bib apron packages to the top shelf, and asked that she be permitted to place them on the lower shelf or that she be furnished help; that he declined both requests, and told her that if she was not able to perform the work she could quit the job. In other words, briefly stated, her case was that on account of her poor health, it was negligence on the part of appellant to require her to put the twelve-pound packages on the top shelf or refuse to furnish help to do so. She gave no reason whatever why she did not stand on a chair, or a box, or some other kind of elevation in order to prevent undue strain in placing these packages.
It required from only thirty to forty minutes of appellant's time to place the clean packages of linen on the shelves as it came in, and about the same length of time to receive and assort the soiled linen as it came in. As stated, there were only two loads daily. No one occupied the linen room except appellee. There was something like seventy-five persons employed in the laundry, and all of them had to punch the clock when they came in to work and went out except the appellee. She often remained in the linen room more than ten hours a day, but a good deal of the time she had nothing to do. There was no real conflict in the evidence that any normal person, physically and mentally, man or woman, could have done the work required of appellee without injury or danger of injury to the body. That being true, appellant's superintendent was justified in stating to the appellee that if she were not able to do the work she could quit the job.
Section 4653 of the Code of 1930 provides, among other things, that it shall be unlawful for any firm or corporation to work a female in a laundry more than ten hours a day or more than sixty hours a week, except in cases of emergency or public necessity. Appellee's work was more piece work than hours work. When she got through with each piece of work, she had nothing to do until she was confronted with another piece, and often there intervened a considerable length of time. If the statute was violated, there was no causal connection whatever between its violation and appellee's alleged injury.
If appellee was injured, it was not caused by any negligence on the part of appellant; but was the result of the assumed hazards of the employment. Section 513 of the Code of 1930, abolishing the assumption of risk doctrine, has no application. It deals alone with risks caused by the negligence of the master, not risks incident to the employment. It is still the law that a servant accepting employment for the performance of specific duties takes upon himself the natural and ordinary perils incident to such service. Austin v. Mobile O.R. Co., 134 Miss. 226, 99 So. 3; Howd v. Mississippi Central R. Co., 50 Miss. 178. It follows that appellant's superintendent had the right to say to appellee when she complained of having to lift the twelve-pound packages to a shelf about five feet high that if she did not want to do it she could quit her job. Such lifting and placing was simply one of the risks of the employment — a necessary part of the employment, which, the evidence shows without any substantial conflict, could have been performed by any normal man or woman without danger.
Reversed and dismissed.
As I understand the appellee's evidence, it warrants a jury to find therefrom: (1) She was required to and did work continuously for more than eleven hours daily, except when occasionally she, at her request, was permitted to leave the building during working hours for a short time; (2) the shelf on which she was compelled daily to place twelve-pound packages was higher than her head; (3) the long hours of work coupled with the daily lifting of the twelve-pound packages to a shelf above her head so weakened her physically that her attempt to lift the last of the twelve-pound packages caused the injury of which she complains.
She did not in my opinion assume the risk of the appellant's negligence, if any, in this connection by continuing at work after its superintendent had declined to permit her to place the packages on a lower shelf or to furnish her with help to so do.
I am of the opinion, therefore, that the case was one for the jury and that the court below committed no error in refusing to grant the appellant's request for a directed verdict.
Justice Ethridge is of the same opinion.