Cheaves v. Southern Railway Co.

82 Miss. 48

• Court: Mississippi Supreme Court
• Decided: March 15, 1903
• Status: Published

Opinion

Terral, J.,

delivered the opinion of the court.

The constitution of the state of Mississippi (section 193) provides: “Every employee of any railroad corporation shall have the same right and remedies for any injury suffered by him from the act or omission of said corporation or its employees as are allowed by law to other persons not employees, where the injury results from the negligence of a superior agent or officer, or of a person having the right to control or direct the services of the party injured.” The plaintiff was the fireman upon the locomotive operated by an engineer of the appellee company, running upon the Southern Railway, in the operation of said road, and alleges that by the negligent or wilful act of the engineer of his locomotive he was grievously injured; that the wrongful act causing his injury was that of his superior agent, the engineer, who, in disregard of his duty, within the limits of the city of Columbus, ran his engine at the rate of forty miles per hour, and hurled it against the engine of the house track, where the latter had a right to be, etc. The case made by the declaration is a wanton wrong on the part of the engineer, the superior agent of the fireman, by which the latter was injured for life. It comes within the direct provision of the constitution, and yet it is demurred to. “Quoties in verbis nulla est ambiguitas, ibi nulla expositio contra verba fienda est ” is a maxim of the common law. It is a rule for the interpretation of deeds, of acts of parliament, and other documents. According to this rule, it is not allowable to interpret what has no need of interpretation, and thej law will not make an exposition against the express words and intent of the parties or of the law-making body. Where there is manifest disagreement between the spirit and the letter of the law, the latter is made to yield to the real meaning as gathered from the whole instrument. But our constitution makers here made no mistake in the draft of section 193. There is no ambiguity of any sort that calls for construction. They have, we think, said what they intended, and they have meant, no doubt, what they have said. It is not our province to amend, repeal, or annul it. It makes its own interpretation. The plaintiff fireman was under the direction of the engineer. By the wrongful act of the latter he was injured. Section 193, Constitution, gives him a remedy against the company.

SUGGESTION OF ERROR.

Qatchings & Qatchings, for appellee,

after the delivery of the foregoing opinion, filed a lengthy suggestion of error reviewing the allegations of the declaration, and making the following points: “The question calls for a construction of a most important provision of our state constitution. Judge Terral, as we understand his opinion, holds that, as a matter of law, the engineer was a superior officer of the fireman. ' He also affirms that the fireman was under the direction of the engineer. No allusion is made by him to the rules of the company, although it was expressly agreed that the rules of the company should be considered as especially pleaded. In our brief we referred to a number of rules which are clearly pertinent, and, in our judgment, controlling, and, as Judge Terral refers to none of them, we assume that our brief was by some means mislaid, and not before the court at all. Judge Terral affirms there is absolutely no room for construction; that the constitution is so plain and unambiguous that it needs no interpretation. This does not accord with the view hitherto taken by this court of this constitutional provision. In the case of Richmond & Danville R. R. Co. v. Rush, 71 Miss., 987; 15 South., 133, its meaning was considered so doubtful that Judge Campbell declined to hold that a conductor, within the meaning of the constitution, is a ‘person having the right to control or direct the services' of the brakeman.’ He did carefully consider and interpret that provision of the constitution in the case of Evans v. R. R. Co., 70 Miss., 529; 12 South., 581. In that case the plaintiff was a brakeman, who was injured by the negligence of the engineer, who had signaled for brakes, and, while’ they were being applied in pursuance of the signals, caused a movement of the train without proper warning. It was claimed by counsel for Evans that the engineer was the superior agent, or officer, or person, having the right to control or direct tbe services of the brakeman, for the reason that the engineer had the right to signal for brakes, and that when he did so he directed, as he had a right to do, the services of the brakeman in the matter of applying the brakes. This was the case as presented to the court, and upon this case Judge Campbell proceeded to interpret the constitution. He stated that it was not designed by the constitution to abrogate the rule of law applicable to the fellow servant in a common employment, but merely to modify it to the extent as indicated by section 193 of the constitution. He denied that the engineer was a superior agent or officer of the brakeman, or that he was a person having the right to control or direct his services, within the meaning of the constitution. He declared that the doctrine that one employee is the superior agent or officer or person having the right to control or direct the services of another employee contains no room for application when the two employees are engaged in the performance of the ordinary duties prescribed for them respectively by the rules of the company and the nature of the service. Judge Campbell then elaborated this view, and in language so perspicuous and virile that no man can add any strength to it. He divided the section of the constitution into two parts; the first having reference to an injury resulting from the negligence of a superior agent or officer, and the second having reference to the negligence of a person having the right to control or direct the services of the party injured. As to the meaning of the expression 'superior agent or officer,’ he said, 'The constitutional provision has reference to a superior agent or officer of the sort well known as such.’ The superior agent or officer of the sort well known as such is one whose position, powers, and duties mark him out plainly as being a vice-principal, and it cannot be said that an engineer of a train, while discharging his ordinary duties, can be put in the position of a vice-principal. Judge Campbell thus defines what is meant by 'a person having a right to control or direct the services- of the party injured’: 'A person in the company’s service, by whatever name, who may be entrusted with the right to control and direct the services of others according to his discretion and judgment; one to whom is committed the direction and control of others for the accomplishment of some end depending on his independent orders born of the occasion, sprung from him as a director, and not consisting of the mere execution of routine duties in joursuance of fixed rules by various employees, each charged with certain parts in the general performance.’ Judge Campbell continues: 'It may be that, under some circumstances, the engineer may be the superior of the brakeman in the meaning of the constitution, but in the operation of the train in accordance with the rules, one is no more superior than the other, and they are not within the rule established by the constitution.’ Judge Campbell iterates and reiterates throughout his opinion that this provision of the constitution can never apply where both employees are engaged in the discharge of routine duties in pursuance .of fixed rules established by the company for the general government of the various employees. We submit that this opinion, which contains no- allusion to the opinion by Judge Campbell, is diametrically opposed to it, and overrules it. We respectfully submit that it abundantly appears from an inspection of the rules of the company that the engineer occupies no such relation to the fireman as that contemplated by the constitution.” Counsel here quoted and commented upon a number of the rules of the company regarding the relations of the engineer and fireman, insisting that they are largely upon the same footing.

Reversed and remanded.

Whitfield,, C. J.,

delivered the opinion of the court in respose to the suggestion of error.

The cause of action is stated in the very language of the constitution. Iiow could a cause of action thus stated be demurred to? The opinion of Brother Terral correctly said, speaking of the declaration, “It comes within the direct provision of the constitution, and yet it is demurred to.” The constitution provides not only that “a superior agent” is not a' fellow servant of those over whom he is such superior agent, but it also expressly declares that “any person having the right to control or direct the services of the party injured” is not a fellow servanc of such person. The question is, not what the rules of the company may provide, but whether the fact is, as shown by the proof, that the person suing was injured by the negligence of some other -servant of the company who was either a “superior agent or officer,” or, if. not,, was a “person having the right to control or direct the services” of the party injured. It is not a question whether the duties are what are called “'routine” duties in the Evans Case, 70 Miss., 529; 12 South., 581. The question is simply and merely whether the person suing has been injured by the negligence of another servant having the “right to control or direct his services,” whether that -right to so control and direct springs from any rules of the company or from the course of business- as shown by the testimony. Now, this declaration distinctly avers the cause of action to be that the appellant was injured by the negligence, wilful and wanton, of the engineer, who is averred to have had “the right to control and direct his services.” The demurrer admitting this, must, of course, be overruled. The case should be developed on its facts, and, if the testimony shall show that the engineer did not have the “right to direct and control the services of the fireman,” the defendant can seek the benefit arising from such testimony by proper instructions. Counsel himself concedes that circumstances may arise under which an engineer would have such .right. This admission shows that the action of this court in overruling the demurrer was proper, since the declaration stated the identical cause of action the constitution declares shall be good. Whether one servant is under the control-or direction of another servant is not to be determined by the rules of the company. It is to be determined always by the facts in the case and the • nature of the act performed. The facts surrounding the act itself, and the actual relation of the two servants to the act, these facts are the only proper tests of whether one servant is under the control or direction of another. If the mere paper rules are to determine this question, then they would settle ‘the matter in those cases even where the facts plainly show that the servant suing was clearly under the control and direction of the servant whose negligence caused the injury. The rules of the company are, of course, competent evidence, but they are simply evidence at last; and whenever the facts in any given case show that, notwithstanding the rules, what occurred in the particular case demonstrates the one servant to have been injured by the negligence of another servant, who had the right to control and direct his services, the facts, and not rules, must govern. But it is said that the rules here were agreed to be treated as part of the declaration. If this be granted, we find nothing in the rules to aid appellant. On the contrary, on page 112 of the rules of the railroad company (rule No. 574) we find the following: “When with the engine, they [meaning the firemen] must obey the orders of the engine-man.” This shows clearly that, even according to the rules, tbe fireman when with tbe engine is not a fellow servant of tbe engineer. We wish to add' that tbe very able and learned brief of counsel for appellant was not overlooked on tbe first bearing of this case. It was read and re-read, and all tbe authorities examined. The case was considered for some months, and the deliberate conclusion reached is, in our judgment, clearly correct.

Suggestions of error overruled.