Great Atlantic & Pacific Tea Co. Of America v. McConnell

199 F.2d 569

• Court: Court of Appeals for the Fifth Circuit
• Decided: December 17, 1952
• Docket: 14075
• Status: Published

Opinions

HOLMES, Circuit Judge.

This is an action for damages for personal injuries, sustained by Bessie McConnell, one of the appellees, when she strained her back in attempting to move a 'heavy meat block, which it became necessary for her to move in the course of her duties in washing down the walls of the meat shop of her employer. It arose in Florida, and was brought against an employer which had failed to comply with the Florida Workmen’s Compensation Act, and which, under Florida law, was deprived of the defenses of assumption of risk and contributory negligence. It is conceded that, in order to recover, the plaintiffs must have made out a case oLnegligence on the part of the employer, and this appeal turns upon the issue of whether or not they did so. The only negligence claimed was that the defendant failed to furnish proper fellow servants in sufficient number to do the work which plaintiff was doing when She was injured.

The plaintiff’s job was to work at the meat counter and, at the end of the day, to clean up the shop. On Saturdays, at closing time, she and any other similarly employed were required to wash down the walls. In order to do this, the meat blocks, or tables, would have to be pulled out from the wall. She had been employed for some time, and had previously done the thing that she was doing when her injury was received. The negligence claimed is that the company failed to furnish help to assist her in moving the block. When she started to work for appellant, an employee by the name of Mrs. Whitey was assigned to help her move these blocks, but this employee was on leave of absence and not present on the night of the injury in question. There were other employees around that night, but none of them had been assigned to assist Mrs. McConnell. She testified that once she had called on one of the men, who helped her with one of the blocks, but he refused to help her with the others, telling her that he had his own work to do; and so (fearing that she might lose her job) she decided not to call on anyone else. She ne”er complained to the management or -anybody about this, nor did she ever ask that help be assigned; but at best this only amounted to assumption of risk or contributory negligence on her part.

Appellant concedes that the defenses of assumed risk and contributory negligence are not available to it, but urges that it can be held responsible only if it was negligent and its negligence was the proximate cause of the injury. The court erred, it contends, in overruling its motions for a directed verdict at the close of appellees’ evidence and at the close of all the evidence, and in denying its motion for judgment notwithstanding the verdict because there is no proof of any negligence on its part. In opposition to appellant’s argument, appellees assert that it was a typical case for the jury, since the evidence showed that appellant failed to furnish a sufficient number of employees to perform the work of moving the meat blocks, and was negligent in so failing.

The master in this case was not an insurer, and is liable only in case it has been negligent. Inadequacy of proper fellow servants must be the proximate cause of the injury. The appellant is left in an exposed position as to liability, under Florida law, by being denied the common-law defenses of contributory negligence and assumption of risk. Any real negligence on the part of appellant that directly and proximately contributed to appellee’s injury renders the appellant liable. From seven to ten employees worked in the meat department, according to seasonal needs, but at the time of this occurrence all of them were busy; the particular fellow servant who had been assigned to render this assistance was on vacation, and no one had been specifically designated to take her place in this respect. This is the crucial fact that warranted the jury in finding that the appellant had been negligent in its common-law duty to provide proper fellow servants in sufficient number, and that this negligence was the proximate cause of appellee’s injury.

The master owes to his servant certain inalienable, nonassignable duties peculiar to the relationship, based in general upon the duty not to expose him to unnecessary or unreasonable risks. One of these duties (as we have indicated) is to exercise reasonable care to provide proper fellow servants in sufficient number. Whether the master performed this duty in this case was a question for the jury. Having found such negligence, the jury was also warranted in finding that it was the proximate cause of appellee’s injury. The trial court did not err in refusing to direct a verdict for the defendant. McGee v. C.Ed. De Brauwere & Co., 117 Fla. 859, 162 So. 510. Cf. Great Atlantic & Pacific Tea Co. v. Robards, 4 Cir., 161 F.2d 929.

Affirmed.