Petroleum Iron Works v. Bailey , 124 Miss. 11 ( 1920 )

Sykes, J.,

delivered the opinion of the court.

The appellee, as plaintiff in the circuit court, brought suit for damages for an assault and battery alleged to have been committed upon him by the general foreman of the appellant company. The case was submitted to a jury, and a verdict returned in favor of the plaintiff for five hundred dollars, and a judgment thereupon rendered by the court.. From which judgment this appeal is prosecuted.

The defendant in the circuit court pleaded the general issue, and gave notice thereunder that it would prove that the assault and battery grew out of a personal difficulty, for which the master was not liable; also that the employee who committed the alleged assault and the plaintiff were fellow servants. A peremptory instruction was asked by the defendant after all of the testimony had been introduced.

The material testimony introduced by the plaintiff was to the effect that he and some other employees of the appellant company were at work on the roof of a house. The appellee was fitting some pipes. Pie left his work temporarily, and upon his return made the remark that somebody had moved his pipe line. Mr. Daugherty, the man who committed the alleged assault, replied that nobody had moved the line, and told appellee that he did not knoAV his business. One wTord brought on another, which resulted in a slight altercation between these tAvo men. There Avas another Daugherty present at the time of the difficulty, who is a brother of this one. Thfe plaintiff testified that the Daugherty AAdio committed the assault upon him was a sort of foreman over him, and that he was subject to his orders; that the other 'Daugherty was the general foreman and had entire charge of this work. The general foreman took no part in the difficulty, except to separate the men.

Under this testimony the peremptory instruction requested by the defendant in the court below should have been given. In this case the fellow-servant rule applies, and these two men were fellow servants. Givens v. Railway Co,, 94 Miss., 831, 49 So., 180, 22 L. R. A. (N. S.) 971; Construction Co. v. Heflin, 88 Miss., 315, 42 So. 174; 12 L. R. A. (N. S.) 1040, 8 Ann. Cas. 1077; Farquhar v. Railway, 78 Miss. 193, 28 So. 850; Lagrone v. M. n O. R. Co., 67 Miss. 592, 7 So. 432; N. O., J. & G. N. R. Co. v. Hughes, 49 Miss. 258.

Another reason why the peremptory instruction should have been given is that in this quarrel which resulted in the difficulty neither employee was acting within the course of his employment with a view to the master’s business. Hines v. Cole, 85 So. 199.

Reversed, and judgment here for appellant.

Reversed.