Opinion
No. 30693.
October 2, 1933. Suggestion of Error Overruled November 27, 1933.
1. MASTER AND SERVANT.
Employee held not to assume risk of injury resulting from overexertion, when foreman, on threat of discharge, ordered him to do work alone, for which assistance was needed, since injury resulted from foreman's negligence (Code 1930, section 513).
2. MASTER AND SERVANT.
Master must exercise reasonable care in providing servants reasonably safe means of work, including proper assistance.
3. TRIAL.
Refusal of requested instructions is harmless, where other instructions embodying substantially same principles are given.
APPEAL from Circuit Court of Pearl River County.
Parker Shivers, of Poplarville, and Stevens Heidelberg, of Hattiesburg, for appellant.
The master is not liable for injury caused by overexertion or overstrain.
Our court has heretofore held that the master is not liable to an employee for overexerting or overstraining himself, or misjudging his own lifting capacity.
Batson-Hatten Lbr. Co. v. Thames, 147 Miss. 794, 114 So. 25.
It is the general rule that a servant is the best judge of his own physical strength and in the absence of coercion compelling him to overtax that strength, it is his duty not to overtax it.
Williams v. Kentucky River Power Co., 179 Ky. 577, 200 S.W. 946, 10 A.L.R. 1396; Hunter v. Busy Bee Candy Co., 307 Mo. 656, 261 S.W. 800.
In this state, just as at common law, the servant still assumes all of the usual and ordinary dangers and hazards attendant upon and incident to his employment.
Vehicle Woodstock Co. v. Bowles, 158 Miss. 346, 128 So. 99.
When the courts refer to the danger of overexertion or overstraining being one of the risks assumed by the employee, they are referring to one of the usual and ordinary risks of the employment and not to one of the dangers caused by the negligence of the master.
Williams v. Kentucky River Power Co., 10 A.L.R. 1396; Ehrenberger v. Chicago, Rock Island Pacific Ry. Co., 182 Iowa, 1339, 166 N.W. 735, 10 A.L.R. 1388; Patrum v. St. L. S.F.R. Co., 168 S.W. 622; Williams v. Pryor, 272 Mo. 613, 200 S.W. 53; Tull v. Ry. Co., 216 S.W. 572; Worlds v. Georgia R. Co., 25 S.E. 646; Haviland v. Kansas City P. G.R. Co., 172 Mo. 106, 72 S.W. 515; Yazoo City Transportation Co. v. Smith, 78 Miss. 140.
There has been no case by our court upholding liability of the master on account of the servant's overexerting or overstraining himself.
We are not unfamiliar with the rule that where the work is of such nature as to require men to do the work, then the men engaged in the work are classed in the same category as appliances, and the master owes the duty to furnish a sufficient number of men to do the work. However, this rule does not create liability where, in the absence of a sufficient number of men to do the work, the employee overexerts or overstrains himself in an effort to do it alone, or with insufficient help.
Hunter v. Busy Bee Candy Co., 307 Mo. 656, 261 S.W. 800; Haviland v. Kansas City P. G.R. Co., 172 Mo. 106, 72 S.W. 515; Thorpe v. Railroad, 89 Mo. 650, 2 S.W. 3, 58 Am. Rep. 120; Fogus v. Railroad, 50 Mo. App. 250; Petrilli v. Swift Co., 260 S.W. 516; Bowman v. Kansas City Elec. Light Co., 213 S.W. 161; Tull v. Kansas City, etc., R. Co., 216 S.W. 572; Roberts v. Indianapolis St. Ry. Co., 64 N.E. 217; 10 A.L.R. 1399; Stenvog v. Minnesota Transfer R. Co., 108 Minn. 199, 25 L.R.A. (N.S.) 362, 121 N.W. 903, 17 Ann. Cas. 240.
A mere threat to discharge even when made by one having the power to discharge has been held by our court not to amount to duress.
Gulf S.I.R. Co. v. Sullivan, 119 So. 501.
The defendant is not responsible for injuries caused by plaintiff's own abnormal condition.
Hathorn Williams, of Poplarville, and J.E. Stockstill, of Picayune, for appellee.
Under the evidence appellee was entitled to have this case submitted to the jury on the theory that appellant was negligent in failing to furnish and maintain sufficient help with which to carry, lift and stack said bundle.
39 C.J., p. 523, para. 627; 18 R.C.L., p. 601, para. 101; Cincinnati R.R. Co. v. Tucker (Ky.), 181 S.W. 940; Tull v. Kansas City Southern Railroad Co. (Mo.), 216 S.W. 572; Natural Gas Engineering Corp. v. Bazor (Miss.), 137 So. 788; Denkmann Lbr. Co. v. Jefferson (Miss.), 148 So. 237; Pigford v. Railroad Co., 160 N.E. 93, 75 S.E. 860, 44 L.R.A. (N.S.) 865; Di Bari v. Bishop Co., 199 Mass. 254, 85 N.E. 89, 17 L.R.A. (N.S.) 773; Rosin v. Lbr. Co., 63 Wn. 430, 115 P. 833, 40 L.R.A. (N.S.) 913; Alabama Railroad Co. v. Vail, 142 Ala. 134, 38 So. 124, 110 A.S.R. 23.
It is the duty of the master not only to furnish but to maintain a sufficient number of men to do the work assigned.
39 C.J., p. 525, par. 629; Mason v. Edison Mach. Works, 28 Fed. 228; Brown v. Rome Mach., etc., Co., 5 Ga. App. 142, 62 S.E. 720; Dougherty v. Minneapolis Steel, etc., Co., 110 Minn. 497, 126 N.W. 136, 19 Ann. Cas. 1043; Stewart v. Stone, etc., Engineering Corp., 44 Mont. 160, 119 P. 568; Wallace v. Tremont, etc., R. Co., 140 La. 873, 74 So. 179, L.R.A. 1917D, 959.
Where the work is of such nature as to require men to do the work then the men engaged in the work are classed in the same category as appliances, and the master owes the duty to furnish a sufficient number of men to do the work.
Gas Corp. v. Bazor, 137 So. 788; Jefferson v. Denkmann Lbr. Co., 148 So. 237.
Where a master employs servants to act in concert in the performance of their duties, it is the nondelegable duty of the master to furnish a sufficient number of servants to perform the duties required of them; if he fails so to do, and such failure is the proximate cause of the injury of one of the servants, the master is liable for such injury.
Gas Corporation v. Bazor, 137 So. 788.
The court will observe that the only difference in the case at bar and the Bazor and Jefferson cases, is that in those two cases the master sent Bazor and Jefferson to do the work assigned without sufficient help, while in the case at bar appellant furnished sufficient help in the beginning but later found appellee's helper absent and required appellee to do the work assigned, in the absence of said helper, which was tantamount to a failure to furnish sufficient help in the beginning.
At the time appellee was required to do the work in the absence of his helper that appellee was voluntarily refraining from attempting to lift the heavy bundle by himself and was waiting for the return of his helper when the volition of his master stepped in and displaced appellee's volition in language that carried with it the authority of a master, viz.: "Get those things back there and stack them or go to the office and get your pay."
Mason v. Edison Machine Works, 28 Fed. 228; Brown v. Rome Machine Foundry Co., 62 S.E. 720.
The duty of the master to furnish sufficient help is a continuing duty, just as the duty of the master to furnish a safe place in which to work is a continuing duty.
Appellee was not permitted to exercise his own volition and refrain from lifting said bundle until his helper returned, but had to submit to the volition of his master or lose his job.
The assumption of risk doctrine has been abolished in this state.
Great Southern Lbr. Co. v. May, 103 So. 363.
Where the given instructions properly submit the disputed issues of the case to the jury, it is not error for the court to refuse other instructions submitting the same issues.
Y. M.V. Ry. Co. v. Miller (Miss.), 131 So. 101.
Argued orally by Rowland W. Heidelberg, and H.H. Parker, for appellant, and by F.C. Hathorn, and E.B. Williams, for appellee.
Appellee brought this action against appellant in the circuit court of Pearl River county to recover damages for an injury received by him while in the employ of appellant, alleged to have been caused by the negligence of the latter. There was a trial resulting in a verdict and judgment in favor of appellee in the sum of three thousand dollars. From that judgment appellant prosecutes this appeal.
Appellee was employed as a laborer in the lumber plant of appellant at Picayune. His work was in the pattern department and crate shed. A part of his duties was to assemble packages of boards and braces for use in the making of crates; he and his fellow laborers bound these packages together with wire. The evidence showed that the packages weighed more than two hundred pounds, probably more nearly two hundred fifty pounds. One witness testified that the weight was something like three hundred pounds. These packages were bound together for shipment, and appellee and his coworkers were required to stack them on a platform from which they were to be loaded into railroad cars. In stacking the packages for railroad loading they had to be lifted by the workers from six to seven feet high. Appellee and Monroe Bounds were working together.
Appellee's evidence, which was believed by the jury, showed that Bob Simmons was appellant's foreman over the work; that these packages could not be safely lifted and placed in position by one man; that it was a two-man job, and that Foreman Simmons knew that fact; that Simmons, in his rounds, found Bounds absent (he had gone to get some wire used in binding the packages), and appellee awaiting his return; that Simmons asked appellee what was the matter, why he was doing nothing, to which the latter replied that his coworker, Bounds, had gone to get some wire. In reply to this Simmons said, "Hell-fire, we can't shut this plant down for one man, get those things back there and stack them up, or go to the office and get your time," which meant that if appellee did not do the work alone in Bounds' absence he would be discharged. Thereupon appellee, fearing he would lose his job if he refused to obey the foreman, attempted to stack one of the packages on the platform. In doing so, the weight was such that it caused one of his feet to slip, and he was crushed to the floor, resulting in a rupture of the abdomen.
Appellant contends that there was no liability because appellee's injury was brought about by his own negligence in "voluntarily overtaxing and overexerting himself;" while appellee contends that the proximate cause of the injury was the failure of appellant to furnish him sufficient help to do the work required of him; to be more specific, that the proximate cause of the injury was the command of appellant's foreman, Simmons, that appellee lift and stack the packages without the assistance of his cohelper, Bounds, which was more than a one-man job, coupled with the threat that if he did not do so he would be discharged.
In considering this question, section 513 of the Code of 1930 should be kept in mind. The statute provides that an employee shall not be held to have assumed the risk of his employment in any case where injury or death results in whole or in part from negligence of the master.
Gulf S.I.R. Co. v. Bryant, 147 Miss. 421, 111 So. 451, 52 A.L.R. 901; Natural Gas Engineering Corporation v. Bazor (Miss.), 137 So. 788 (not reported [in State report]), and Jefferson v. Denkmann Lumber Co. (Miss.), 148 So. 237, are decisive of this question in favor of appellee, and the principle declared in those cases is supported by numerous decisions in other states. 39 C.J. pp. 523 and 525, par. 629; 18 R.C.L. 601, par. 101; Cincinnati, N.O. T.P.R. Co. v. Tucker, 168 Ky. 144, 181 S.W. 940; Di Bari v. J.W. Bishop Co., 199 Mass. 254, 85 N.E. 89, 17 L.R.A. (N.S.) 773, 127 Am. St. Rep. 497; Rosin v. Danaher Lumber Co., 63 Wn. 430, 115 P. 833, 40 L.R.A. (N.S.) 913; Alabama G.S.R. Co. v. Vail, 142 Ala. 134, 38 So. 124, 110 Am. St. Rep. 23.
It was held in the Bazor case, that where a master employs servants to act in concert in the performance of their duties, it is a nondelegable duty of the master to furnish a sufficient number of servants to perform the work. If he fails to do so, and such failure is the proximate cause of the injury of one of the servants, the master is liable for such injury. In the Jefferson case the decision in the Bazor case was cited with approval. In the Bryant case the court held that a master was liable for coercing by threats an inexperienced youth to continue work in cold and rain. In the Bazor and Jefferson cases the court had before it and considered all the Mississippi cases cited and relied on by appellant in this case.
The principle in all of these cases is merely an extension of the fundamental doctrine requiring the master to provide his servant with safe instrumentalities and a safe place to work. 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 overexertion causing the injury is compulsory overexertion. A servant is not free when disobedience of his master means the loss of his job. Appellant's foreman knew, or should have known, that it would be dangerous to the life and limb of appellee to lift and stack the packages without his cohelper, Bounds. It is as much the duty of the master to exercise reasonable care in providing the servant with reasonably safe means and methods of work, such as proper assistance in performing the task, as it is to furnish him a safe place and proper tools and appliances. "The one is just as much a primary, absolute and nondelegable duty as the other." If appellee had voluntarily undertaken the job, the overexertion doctrine relied on by appellant would apply; the proximate cause of his injury would have been his own fault; appellant would have had no part in the cause of the injury.
There is no conflict between the Bryant, Bazor, Jefferson cases and Gulf S.I.R. Co. v. Sullivan, 155 Miss. 1, 119 So. 501, 62 A.L.R. 191, and the other decisions of this court referred to by appellant. In the Sullivan case a master required the servant to be vaccinated against smallpox. The servant was a boy seventeen years of age with sufficient intelligence to understand and appreciate the consequences of vaccination. The master did no wrong in requiring the servant to be vaccinated; the presumption is he did right. The court held that the master was not liable for an injury resulting to the arm of the servant as the result of the vaccination.
Appellant complains of the action of the court in refusing three instructions requested by it. Appellant's request for these instructions was based mainly on the theory that the principles of law it relied on as justifying the claim of no liability were sound. However, without deciding whether the three instructions embodied correct principles of law, we unhesitatingly hold that their refusal was harmless to appellant, because it was granted other instructions embodying substantially the same principles. What has been said with reference to these three instructions is true of other instructions refused by the court. The other assignments of error, we think, are not of sufficient seriousness to call for a discussion.
Affirmed.
ON SUGGESTION OF ERROR.
The suggestion of error challenges the correctness of the statement in the opinion that the packages weighed more than two hundred pounds, probably more nearly two hundred fifty pounds, or, as one witness testified, three hundred pounds.
The witness, Bob Simmons, testified that the packages contained something like fifty-seven feet of lumber weighing about four pounds to the foot.
The plaintiff, Mitchell, testified that the lumber in the packages was not kiln dried, but air dried, and that, "when the hammer would hit the board, the juice would come out of it."
Mykleby, a witness for appellant, testified that the character of a crate or package, as set out in the bill of particulars, contained about eighty feet of lumber, which, if it weighed four pounds to the foot, would weigh something over three hundred pounds.
The appellant also challenges the statement in the opinion that in lifting the package the weight was such that "it caused one of appellee's feet to slip, and he was crushed to the floor, which resulted in a rupture to the abdomen." Appellant contends that the record shows that the rupture occurred first, and that as a result thereof the appellee gave way under the weight of the package and was crushed to the floor.
The appellee testified that when he attempted to shove the package up, his foot slipped, he fell, and the package fell across his legs, and that the reason his foot slipped was because the package was too heavy.
The suggestion of error also challenges the soundness of the legal principles announced in the former opinion.
After very careful and painstaking consideration, the former opinion was rendered, and we think there was no error committed.
Consequently, the suggestion of error will be overruled.
Overruled.