Hines v. Green , 125 Miss. 476 ( 1921 )

Ethridge, J-,

delivered the opinion of the court.

Mrs. Maud E. Green, the appellee, brought suit against the appellant in the circuit court for the death of her husband, an employee of the appellant, his death being brought about by an engineer in the service of the appellant killing the appellee’s husband at a time when the engineer and the deceased were employed by the appellant and engaged in moving some passenger cars from one point in the yards in Hattiesburg to another point in the yards. The original declaration was filed in three counts, alleging that the engineer was an unsafe and dangerous man to be employed and with whom to work, on account of his quarrelsome, dangerous, and vicious habits and character, which were known to, or by the exercise of reasonable diligence ought to have been known to, the appellant.

The appellant defended under the general issue, and filed certain special pleas. Among other pleas, it pleaded that the deceased and the engineer were at the time of the killing engaged in interstate commerce for the appellant, and that the liability of the appellant was covered by the federal Employers’ Liability Act (U. S. Comp. St., sections 8657-8665), and that under this act there was no liability upon the appellant for the death of the appellee’s intestate. When this plea was filed by the defendant a new suit was filed by the appellee as administratrix under the federal Employers’ Liability Act, in which the acts alleged in the other suit were declared on, and it was alleged that at the time of the injury the deceased and the engineer were engaged in the business of the master and in furtherance of the master’s business, bringing the casé under the federal Employers’ Liability Act, and then, upon motion of the appellee, the two suits were consolidated by the circuit court without objection, and the case proceeded to judgment, resulting in a verdict and judgment of thirty-five thousand dollars in favor of the appellee as ad-ministratrix.

On the trial it appeared that the deceased was a conductor of a switching crew operating in the yards at Hat-tiesburg, Miss., and that the engineer was the engineer in charge of the cars being moved from one point in the yard to another point. While the movement was being made the switchman who accompanied the crew gave the engineer a signal, which he repeated several times, and the engineer had told the switchman not to signal him but once, that he was on the watch, and would see the signal, and when the switchman signaled more than once on this occasion and remounted the running board on the engine the engineer came down with a hammer and accosted the switchman about disobeying his admonition or instruction about the signal. The switchman, who was'a negro, told the engineer that he was doing his duty as best he could under the instructions of Mr. Green, the deceased, who was the foreman of the crew. Whereupon the engineer told the switchman that he would kill him and Mr. Green too, and knocked the switchman off the running board with the hammer. This resulted in certain of the crew being taken from the train to carry the switchman to the hospital. The engineer moved on to the switch, which lay along his route, and when he reached the switch it had not been thrown so as to permit him to proceed, and he stopped the engine, and Mr. Green, the conductor, and foreman proceeded from the cars being moved to the switch to throw the switch, it being his duty to do so in case the switchman ivas not available for that service. While he proceeded from the cars to the switch McLendon, the engineer, came down from the engine with a pistol and took his stand near the front of the engine, and, as Green, the conductor, and foreman, came np, accosted him with the remark, “Why in the hell have you not thrown the switch?” The only person who was produced at the trial who heard this remark was engaged in working on some cars near the point and passed around the car in his work, and a few moments heard a pistol shot. There were • two or three shots fired, and when the first shot was fired other persons saw McLendon, the engineer, but did not see the deceased. McLendon refused to let any one approach the body of the deceased until he had taken an iron pin and placed it near the man and had sent for a policeman to come to the scene.

It was in proof that some years before the killing in question the deceased and McLendon had worked together, and that they did not get along, having personal difficulties about the work. The railroad company on the application of the deceased, Green, had changed him from a day crew to a night crew, and they worked separately until some eight or nine months before the killing. Prior to the killing some eight or nine months there had been a strike and in the settlement of the strike between the employees and the railroad company and separate contracts had been entered into under which the railroad company had agreed that the different brotherhoods under which its employees were organized, McLendon being a member of the Brotherhood of Engineers, and the deceased, Green, being a member of the conductor’s organization, which contracts gave the employees the right to select positions in the service according to the rule of seniority; that is to say, the man who had been longest in service of the railroad company had the first right to select his service, and those who had been in the service a less time having to select from the positions available after their seniors bad selected employment. After this contract was executed, Green, the deceased, applied to the railroad company for work during daylight, that being more desirable than the night work. At first the railroad company had declined or failed to give him the promotion, but was approached by the manager of the conductor’s organization, and told that Green had a right under his contract to select the position. The railroad company told Green that if he would arrange with the man in charge theretofore of the daylight work to change positions it would be all right, and the change was accordingly made. When the change was made it threw Green into the crew in which McLen-don, the engineer, was working in the switching operations in the yard. The railroad company set forth by plea that Green had assumed the risk of working with McLendon by virtue of his claiming his rights under the contract, and that his administratrix could not recover because of that fact under the federal Employers’ Liability Act. The pleadings made an issue on this proposition, and the case was submitted to the jury on instructions as to the rights of the parties bearing on the assumption of the risk, in effect telling the jury that if Green knew of McLendon’s character and placed himself in association with McLen-don with knowledge thereof under his contract .with the railroad company, he had assumed the risk incident to working with such a dangerous man, and submitting the counter proposition that if he did not know that McLen-don was a dangerous man with whom to work he would not assume the risk.

It appears from the evidence for the plaintiff that Mc-Lendon was a contentious, disagreeable, and quarrelsome man; that he was constantly embroiled with his fellow employees in quarrels about the work; that he would not obey the signals, and that he Avas a stickler for the rules; that he frequently had quarrels, and had habitually carried a pistol, either on the engine seat or upon his person ;. and that he had been frequently reported to the railroad company. It also appeared in evidence that Green had reported him for violating liis duties on a number of occasions. It was also in testimony for the plaintiff that he , the engineer, had several times tried to catch Green between the cars and then move Ms engine so as to injure him. It was also in proof that he had killed a man prior to the killing of Green about some matter disconnected with the railroad business, and that the employees of the yard regarded him as a turbulent, dangerous, and violent man, and also that he had the general reputation in the community of being a dangerous, quarrelsome, and violent man.

The first question, and the most important question to be decided in this suit, is whether or not the killing grew out of the master’s business while the two men were employed about the master’s business and in furtherance of the master’s business, and whether the master is liable for the death of one of its employees at the hands of another employee when not caused by the movement of the cars or physical appliances of the master, but caused by a weapon as in the present case.

The appellant relies principally upon the case of Hines, Director General, v. Cole, 85 So. 199, in which case this court held that the employees in that case were not in furtherance of the master’s business, and that the quarrel in that case was the private quarrel of the parties involved in that difficulty.- The character of the employee for peace and violence was bad, as here. The rule as stated in the syllabus is as follows:

“The master is not liable for the wrongful assault by one servant on another, unless the servant in making the assault was acting within the course of his employment, with a view to his master’s business.”

The converse of the rule is true, that if the assault is made while acting within the course of his employment and with a view to his master’s business, the master is liable, especially where he has knowledge that the servant has such a character for violence or has such a vicious disposition as to make the assault probable. Under the Cole Case it is held that when the fellow-servant rule does not apply the master is responsible for an injury wrongfully inflicted by one servant on another acting within the course of his employment with a view to his master’s business, although the master was not negligent in employing such servant, or in retaining him in his service.

In the present case there is ample proof that the master had knowledge of the vicious disposition and violent character of the engineer who committed the assault in this case as to make him liable regardless of the rule above stated, provided, of course, that the servant was acting within the scope of his employment and with a view to his master’s business. We think the rule in this state and the rule in the federal court is the same as to this proposition, and it would be immaterial which law governed so far as this feature of the case is concerned, provided the engineer was acting within the scope of his employment and with a view to his master’s business. Do the facts of this case show that the engineer and the deceased were so acting in the course of their respective employments, and with a view to the furtherance of the master’s business? They were engaged in moving the master’s cars and machinery from one point of the yard to another point of the yard. In order to carry the car to its destination it was necessary to pass through the switch about which the difficulty arose, and it was the fact that the switch had not been thrown and the track cleared so that the engineer could proceed to his destination that he accosted, assaulted, and killed the deceased. It was no private quarrel, but was a quarrel about the master’s business, and it was because the engineer was delayed and hindered in proceeding to his destination that he was irritated, caused him to quarrel, make the assault, and kill the deceased. It was the deceased’s business to throw the switch under the circumstances that confronted the crew at the particular time, and it was his business, and he had authority to control the movement of the trains; but it was the engineer’s duty to move the train., and we think it was within the scope of his power and duty to call for an explanation, where one was reasonably required as to why the switch was not ■thrown or as to why the track was not cleared so he could proceed to his destination. So far as the question as to whether the two men were engaged in the master’s business, about the master’s business, and whether the quarrel occurred and the killing resulted from this relation, the evidence amply sustains the plaintiff’s contentions as to liability on this feature of the case.

Up to this point the state and federal laws, we think, are in harmony, but questions now arise in which the rule in the two jurisdictions differs. Under the federal Employers’ Liability Act the doctrine of the assumption of the risk applies where the servant injured knew and appreciated the risk and voluntarily continued in the employment after such knowledge without promise on the part of the master to remedy the condition; while under the state law, if the master is negligent, the servant does not assume the risk. There is also a difference in the elements for which damages may be allowed in the two jurisdictions. Under the state law the plaintiff will be entitled to recover the net present cash value of the expectancy, and also would be allowed to recover for damages from the loss of association, counsel, consortium, etc. While under the federal Employers’ Liability Act the plaintiff would be limited to the monetary value, or the present value of the amount of money, they would have received for support, gifts, etc., had the-deceased lived, and would not be entitled to recover for such parts of the value of the expectancy as the deceased himself would have earned, but would not have turned over to the family, and they would not be entitled to damages for loss of society, counsel, or consortium.

The defendant by proper pleadings and by proof tending to sustain its pleadings raised the issue of the assumption of risk in working with the engineer, and the trial court peremptorily instructed the jury for the defendant that the federal Employers’ Liability Act controlled the case, and the elements of damage involved under that law was all that was submitted to the jury for consideration, and the verdict exceeds the amount of the present value of the expectancy of .the deceased. The plaintiff contended in the court below that the liability was given by the state law, and contends in this court that this is true.

In view of the difference in the rule under the state law and the rule under the federal law, it is important to determine which law governs the transaction. The switching movement in the yard which was being clone at the time of the killing ivas a movement of certain passenger cars and a coal loader and a gong. The coal loader was being carried to the shops for repair, and'was not in use by the railroad company immediately preceding the movement, nor was it placed back in the service of loading cars for several days thereafter. The passenger cars had not been used in service on the day of the injury in any movement or in any operation for the railroad company, nor were they being carried to be cleaned for immediate use, but were in fact placed in the service of the railroad company the day following the injury. These passenger coaches were' used both for intrastate commerce and for interstate commerce as the needs of the railroad company called them into service. The injury occurred in the forenoon, and there was no purpose to use these cars during the day of the injury, nor was there any fixed or settled purpose to use them in such service at any particular time. Their use, or whether they would be used or not, depended entirely upon the circumstances which might arise, and were not controlled by any circumstances then existing, nor was there any settled purpose to use them at any particular time. They were merely used when the needs of the railroad company required their use.

The United States supreme court has laid down the test for determining whether the federal Employers’ 'Liability Act was applicable in the following language:

“Generally, when applicability of the federal Employers’ Liability Act is uncertain, the character of the employment, in relation to commerce, may be adequately tested by inquiring whether, at the time of the injury, the employee was engaged in work so closely connected with interstate transportation as practically to be a part of it.” Southern Pac. Co. v. Industrial Accident Commission, 251 U. S. 259, 263, 40 Sup. Ct. 130, 131 (64 L. Ed. 258); Pedersen v. Delaware, L. & W. R. Co., 229 U. S. 146, 151, 33 Sup. Ct. 648, 57 L. Ed. 1125, 1127, Ann. Cas. 1914C, 153, 3 N. C. C. A. 779; Shanks v. Delaware, L. & W. R. Co., 239 U. S. 556, 36 Sup. Ct. 188, 60 L. Ed. 436, 438, L. R. A. 19160, 797; New York C. R. Co. v. Porter, 249 U. S. 168, 39 Sup. Ct. 188, 63 L. Ed. 536; Kinzell v. Chicago, M. & St. P. R. Co., 250 U. S. 130, 133, 39 Sup. Ct. 412, 63 L. Ed. 893, 896.

Measured by this test, the facts do not bring the case within the federal Employers’ Liability. Act, for the reason that none of the things being operated and moved at the time of the injury were being then used in interstate commerce, nor were they intended to be so used immediately upon being placed in condition for use, nor was there any fixed time or purpose for their early use so as to make them so intimately connected with interstate commerce as to be practically a part thereof.

There are a number of assignments of error as to instructions complained of by the appellant, but the errors, it any, are favorable to the appellant, and require more facts to be found to render liability against the appellant than the law required.

There is one assignment of error, however, that is serious, and that is that the verdict is excessive. The trial proceeded, as above stated, on the theory that the plaintiff was limited to elements of damage recognized by the federal Employers’ Liability Act, and as the jury only had these elements submitted for its consideration, the verdict is excessive, and it cannot be upheld upon any theory that the jury might have found elements of damage, if properly instructed, which might be sustained under the elements recognized by the state law. There is no theory or contention in the record or in the arguments for the allowance of punitive damages. The expectancy of the deceased was twenty-nine and sixty-two hundredths years, and he was a healthy man both in mind and body, and was earning five dollars per day. This would amount to one thousand eight hundred and twenty-five dollars per year. The evidence does not contain any calculation of the expectancy-, nor are any tables introduced by which computation may be made according to any standard, recognized mortality tables. But, finding the present value by dividing the total expectancy, if earned, by one plus six per cent, the legal rate of interest, for the average number of years of the expectancy, which in the absence of other proof we will apply in this case, we find that the gross net value is approximately twenty-four thousand dollars, from which must be deducted the expenses that would have been incurred by the deceased on his own account in living and supporting himself during the period of his expectancy, which would doubtless have amounted to at least fifty dollars per month, and we think that the highest verdict that could be upheld on the elements of damage involved in the trial would be sixteen thousand dollars.

If the plaintiff will remit all of the judgment in excess of sixteen thousand dollars, the judgment will be affirmed; otherwise it will be reversed and remanded because of the excessive verdict.

Affirmed) with remittitur.

W. H. Cook and HoldejsT, JJ., being disqualified, took no part in the decision of this case.