Holden, J.,
delivered the opinion of the court.
This suit was instituted by the appellants, Mrs. Mullican and her children, against the appellees, V. L. Crawford and the Meridian Light & Railway Company, for damages for the death of John W. Mullican, husband of the appellant and father of the children, caused by the negligence of the defendants. A demurrer to the declaration interposed by the Meridian Light & Railway Company was sustained by the court as to it, and a plea of discharge in bankruptcy by the appellee, Crawford, resulted in a judgment discharging him, from which judgments this appeal is prosecuted.
In order to have a clear view of the case presented and of the legal question involved, we consider it necessary to set out the declaration in full so' that we may determine whether or not it states a cause of action under the law. It may be here stated, in substance, that the appellee Crawford operated a manufacturing plant at Meridian for the manufacture of cotton linters into absorbent cotton for the purpose of making gun cotton and other high explosives. There were located in this plant several vats or boilers containing a boiling solution of chemicals. The deceased, Mulican, was employed to work in and around these vats, and ivas so employed when he fell into one of them, which caused his death. The declaration reads as follows:
“Plaintiffs charge that the said V. L. Crawford on the - day of -, 1.915, established a manufacturing plant in the city of Meridian, Lauderdale county, Miss., for the manufacture of cotton linters into absorbent cotton, cotton batting, etc., and the process of manufacturing in said plant was to take the cotton linters and cotton fiber and remove therefrom all fatty oils and acids, and to bleach it and put it through certain chemical processes and prepare it for making gun cotton and other high explosives. In order to pre[815] pare this cotton for gun cotton and other high explosives, the manufacturing plant of Y. L. Crawford, aforesaid, was located in a large building in Meridian on the north side of which is located a large lot of machinery which is operated and driven by electric power for carding and manipulating the cotton preparatory to bleaching, and on the south side of this building is what is called the ‘lder room,’ and in this ‘lder room’ on either side thereof are located a number of vats or boilers into which the cotton is immersed into chemical baths, which vats extend above the floor in the lder room some few feet, large vats or boilers holding many hundred gallons, which extend down into a cellar underneath the floor, and the tops are placed on these vats or boilers loosely by handhold, which are even and on a level with with the floor with the lder room, and into these three vats or boilers steam and hot water are let by pipes which enter the bottom of these three vats or boilers, and in these three vats or boilers a boiling solution of chemicals is kept in which is nitric acid, sulphuric acid, lunar caustic, and other dangerous and poisonous chemicals, and in the process of manufacturing cotton it is placed in these vats or boilers. No railing is provided or other guard or protection around the tops of these vats, the tops of which are even with the floor as aforesaid, and these tops are the only means of preventing a person from falling into the same in the darkness or in the absence of light.
“The plaintiffs charge that the defendant V. L. Crawford, on the 3d day of March, 1916, and before and after that time, had a contract with his codefendant, the Meridian Light & Bailway Company, who owned and operated an electric power plant in the city of Meridian, which contract was made by the said Y. L. Crawford with the said Meridian Light & Bailway Company for and on behalf of himself and his employees, [816] who were employed to work iu said manufacturing’ plant, one of whom was the said John W. Mullican, deceased, and to furnish electric lights and power for his (Y. L. Crawford’s) manufacturing plant, and for the benefit of his employees therein as aforesaid, and to operate the machinery used in said plant, the said manufacturing plant operated by the said V. L. Crawford was operated and driven by the electric power furnished by the said defendant, said Meridian Light & Railway Company, and by the dangerous agency of steam.
“And plaintiffs charge that this kier room with these vats of boiling chemicals as aforesaid was an exceedingly dangerous place to work, and that the tops of these vats were, of course, frequently removed, and had to be in order to immerse the cotton in them, and on account of the poisonous steam coming from them and the danger of falling into them, particularly at nighttime, the kier room was a most dangerous place to work, as both the defendants then and there well knew, and that Y. L. Crawford, as employer of J. W. Mullican, deceased, was bound by law to make this kier room a reasonably safe place to work by day and by night, and said Mullican was employed to work there at night, and in order to make this kier room a reasonably safe place to work, Crawford, instead of performing the duty himself of lighting the room, in order to prevent his employees from falling into said vats and being hurt in said kier room, employed the said Meridian Light & Railway Company to perform this duty for him, the duty, as aforesaid, which he owed John W. Mullican, and both the defendants well knew that it was of vast importance, in order to make this room a reasonably safe place to work, that these lights be kept burning constantly in the night.
“Plaintiffs charge that they file herewith a copy of the contract so made by Y: L. Crawford for and on [817] behalf of his employees as aforesaid with the Meridian Light & Railway Company and make the same a part of this declaration the same as if fully copied herein.
“Plaintiffs further charge that said Meridian Light & Railway Company had for a long time furnished the electric current which lights this kier room where John W. Mullican was required to work for Crawford among these dangerous vats of boiling chemicals, and the conduct of said Mulican there and his work there was based in good faith upon his expectations that said Light & Railway Company would continuously perform its duty under its contract aforesaid with his employer and master on his behalf made as aforesaid, and would not permit their lights to go out during working hours of the night and thus render this kier room an unsafe place to work.
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Holden, J.,
delivered the opinion of the court.
This suit was instituted by the appellants, Mrs. Mullican and her children, against the appellees, V. L. Crawford and the Meridian Light & Railway Company, for damages for the death of John W. Mullican, husband of the appellant and father of the children, caused by the negligence of the defendants. A demurrer to the declaration interposed by the Meridian Light & Railway Company was sustained by the court as to it, and a plea of discharge in bankruptcy by the appellee, Crawford, resulted in a judgment discharging him, from which judgments this appeal is prosecuted.
In order to have a clear view of the case presented and of the legal question involved, we consider it necessary to set out the declaration in full so' that we may determine whether or not it states a cause of action under the law. It may be here stated, in substance, that the appellee Crawford operated a manufacturing plant at Meridian for the manufacture of cotton linters into absorbent cotton for the purpose of making gun cotton and other high explosives. There were located in this plant several vats or boilers containing a boiling solution of chemicals. The deceased, Mulican, was employed to work in and around these vats, and ivas so employed when he fell into one of them, which caused his death. The declaration reads as follows:
“Plaintiffs charge that the said V. L. Crawford on the - day of -, 1.915, established a manufacturing plant in the city of Meridian, Lauderdale county, Miss., for the manufacture of cotton linters into absorbent cotton, cotton batting, etc., and the process of manufacturing in said plant was to take the cotton linters and cotton fiber and remove therefrom all fatty oils and acids, and to bleach it and put it through certain chemical processes and prepare it for making gun cotton and other high explosives. In order to pre[815] pare this cotton for gun cotton and other high explosives, the manufacturing plant of Y. L. Crawford, aforesaid, was located in a large building in Meridian on the north side of which is located a large lot of machinery which is operated and driven by electric power for carding and manipulating the cotton preparatory to bleaching, and on the south side of this building is what is called the ‘lder room,’ and in this ‘lder room’ on either side thereof are located a number of vats or boilers into which the cotton is immersed into chemical baths, which vats extend above the floor in the lder room some few feet, large vats or boilers holding many hundred gallons, which extend down into a cellar underneath the floor, and the tops are placed on these vats or boilers loosely by handhold, which are even and on a level with with the floor with the lder room, and into these three vats or boilers steam and hot water are let by pipes which enter the bottom of these three vats or boilers, and in these three vats or boilers a boiling solution of chemicals is kept in which is nitric acid, sulphuric acid, lunar caustic, and other dangerous and poisonous chemicals, and in the process of manufacturing cotton it is placed in these vats or boilers. No railing is provided or other guard or protection around the tops of these vats, the tops of which are even with the floor as aforesaid, and these tops are the only means of preventing a person from falling into the same in the darkness or in the absence of light.
“The plaintiffs charge that the defendant V. L. Crawford, on the 3d day of March, 1916, and before and after that time, had a contract with his codefendant, the Meridian Light & Bailway Company, who owned and operated an electric power plant in the city of Meridian, which contract was made by the said Y. L. Crawford with the said Meridian Light & Bailway Company for and on behalf of himself and his employees, [816] who were employed to work iu said manufacturing’ plant, one of whom was the said John W. Mullican, deceased, and to furnish electric lights and power for his (Y. L. Crawford’s) manufacturing plant, and for the benefit of his employees therein as aforesaid, and to operate the machinery used in said plant, the said manufacturing plant operated by the said V. L. Crawford was operated and driven by the electric power furnished by the said defendant, said Meridian Light & Railway Company, and by the dangerous agency of steam.
“And plaintiffs charge that this kier room with these vats of boiling chemicals as aforesaid was an exceedingly dangerous place to work, and that the tops of these vats were, of course, frequently removed, and had to be in order to immerse the cotton in them, and on account of the poisonous steam coming from them and the danger of falling into them, particularly at nighttime, the kier room was a most dangerous place to work, as both the defendants then and there well knew, and that Y. L. Crawford, as employer of J. W. Mullican, deceased, was bound by law to make this kier room a reasonably safe place to work by day and by night, and said Mullican was employed to work there at night, and in order to make this kier room a reasonably safe place to work, Crawford, instead of performing the duty himself of lighting the room, in order to prevent his employees from falling into said vats and being hurt in said kier room, employed the said Meridian Light & Railway Company to perform this duty for him, the duty, as aforesaid, which he owed John W. Mullican, and both the defendants well knew that it was of vast importance, in order to make this room a reasonably safe place to work, that these lights be kept burning constantly in the night.
“Plaintiffs charge that they file herewith a copy of the contract so made by Y: L. Crawford for and on [817] behalf of his employees as aforesaid with the Meridian Light & Railway Company and make the same a part of this declaration the same as if fully copied herein.
“Plaintiffs further charge that said Meridian Light & Railway Company had for a long time furnished the electric current which lights this kier room where John W. Mullican was required to work for Crawford among these dangerous vats of boiling chemicals, and the conduct of said Mulican there and his work there was based in good faith upon his expectations that said Light & Railway Company would continuously perform its duty under its contract aforesaid with his employer and master on his behalf made as aforesaid, and would not permit their lights to go out during working hours of the night and thus render this kier room an unsafe place to work.
“Plaintiffs further charge that on said 3d day of March, 1916-, said John W. Mullican being employed by the said Y. L. Crawford in said manufacturing plant aforesaid, and being at the time in the room known as the ‘kier room’ in the performance of his duty, that is, the room where the tops of these three vats or boilers came up with the level of the floor, aud over which vats the tops were placed as aforesaid on a level with the floor, and in the nighttime the electric lights in said plant, by the carelessness and negligence of said Meridian Light & Railway Company suddenly, on account of their defective machinery, and the carelessness or indifference of its agents and servants, were permitted to go out and left this room in darkness, and it so happened that just about this time, by the carelessness and negligence of said V. L. Crawford and his servants, the fellow servants of said J. W. Mullisan one of the tops of these three vats was left off and the vat was left open, and this vat was then full of a boiling solution made up of nitric acid, sulphuric acid, [818] lunar caustic, and other dangerous and poisonous chemicals, and the said John W. Mullican in the discharge of his duty in said kier room went walking across the floor to secure a lantern to make a light in the darkness and fell into this open vat of boiling chemical compound, and there was cooked literally to death. He was soon rescued and pulled out and lingered for about one week, suffering in body and mind all the tortures, agonies, and pains of the lost, and the flesh fell away from his bones,' and he died as a result of falling into said vat.
“ Plaintiffs' charge that the Meridian Light & Railway Company knew that this result was likely to follow, and had reason to anticipate such a result if they failed to comply with their contract, which was to keep lights continuously burning in said kier room during the night and that they well knew that said lights were furnished for the use and benefit of these employees and to make said kier room a safe place for them to work, as it was employed to do for said Crawford, for him and in his place.
“Plaintiffs further charge that it was then and thei*e the duty of said Crawford to furnish his employees and John W. Mullican a safe place to work, and to keep and maintain said place so furnished him to work in a reasonably safe condition, and he breached this duty and was guilty of gross carelessness and negligence, in that the said three vats were so defectively constructed, as his codefendant well knew, that no safeguard or railing was provided around the top thereof, even with the floor as they were, or other means to prevent people from falling into the same when the tops were off, and also by the carelessness and negligence of his agents and servants by then and there leaving the tops off of said vat into which Mullican fell.
[819] “And plaintiffs further charge that it was then and there the duty of the Meridian Light & Railway Company, which it then and there owed the said Y. L. Crawford and his said employee,, John W.' Mullican, to keep and maintain lights in said kier room, and to keep them constantly burning, and it breached this duty and was guilty of gross carelessness and negligence in permitting its lights to suddenly go out then and there at the time Mullican fell into said vat, and that its lights went out because of the breaking down of its machinery, which was defective and worn out, and the lights were permitted to go out by the carelessness and gross negligence of its employees in failing to operate its plant so as to keep said lights continuously burning, as it had undertaken to do for the benefit of said Mullican.
“And so the plaintiffs .charge that by the combined and joint negligence, which joint negligence was the proximate cause of Mullican’s death, and by the joint negligence of said defendants as aforesaid, John W. Mullican was caused to fall into said vat and get burned to death as aforesaid, from which an action has survived to the plaintiffs, and they have been damaged, and also, they have the right to demand damages for all pain and suffering endured by said J. W. Mullican as aforesaid, and all losses sustained by him;
“Wherefore they sue and demand judgment for actual and punitive damages in the sum of fifty thousand dollars against the said defendants, together with all costs of this suit.”
The written contract between the Meridian Light & Railway Company and Crawford, in which the light company agrees to furnish electrical energy for power purposes at the plant of Crawford, is filed with the declaration as an exhibit, and is pleaded as a part of it. We here set out the contract between the light company and Crawford, which is as follows:
[820] “Contract.
“This contract and agreement made and entered into this the 1st day of February, 1915, by the Meridian Light & Railway Company hereinafter styled for convenience sake ‘party of the first part,’ and Mr. Y. L. Crawford, hereinafter styled for convenience sake, ‘party of the second part,’ both of the city of Meridian, Lauderdale county, state of Mississippi, witnesseth:
“That the party of the first part hereby agrees to1 furnish to the party of the second part electrical energy for power purposes at the premises occupied by the party of the second part known as a ‘linter washing and drying factory located on the. Alabama Great Southern Railroad in the eastern part of the city of Meridian. Said electrical energy to be furnished for a period of three years from the date of signing- of this contract at a rate of two and one-half cents per kilowatt hour, the amount of bill to be determined by the readings of an electrical meter or meters which the party of the first part will install in the building or premises owned by the said party of the second part.
“In consideration of this it is agreed that the party of the second part shall operate twenty-four hours per day two twenty-horse power motors and three five-liorse power motors during the entire period of this contract. It is further agreed that in the event the party of the second part ceases to operate twenty-four hours per day, that this contract becomes void, and that the party of the second part will be furnished by the party of the first part electrical energy at its regular published rates.
“In-consideration of the party of the second part paying its bills promptly on or before the tenth day of each month following that in which the service is rendered by the party of the first part, a discount of one-half cent per K. W. H. will be allowed to the party of the second part by the party of the first part.
[821] “It is further agreed by and' between the two parties that the duly authorized agents of the party of the first part shall have free access to the motors and their connections which will be installed in the premises of the party of the second part at all hours and for any purpose.
“It is further agreed and understood that the party of the second part shall assume all risks for damages caused by defective wiring.
“It is also agreed that the party of the first part may have the privilege of removing its meters, and discontinuing furnishing service upon the failure of the party of the second part to pay said bills for electrical energy promptly when due.
“It is also agreed by and between the two parties that the party of the first part shall not be held liable on account of interruptions' to service due to boiler. explosions, lightning, cyclones, or other causes 'beyond its control.
“Signed in duplicate this the 1st day of February, 1915, Meridian Light & Railway Company, by [Signed] A'. B. Patterson, General Manager. [Signed] V. L. Crawford.”
The contract between Crawford and the light company having been filed as a part of the plaintiff’s declaration, the plaintiffs rights must be determined by it with reference to whether or not the light company owed any duty to the deceased employee of Crawford. The declaration is to be construed most strongly against the pleader, and the character of the contract set out as a part of the' declaration cannot be altered by any allegations or conclusions of the declaration. Therefore, whether there was such relationship between the deceased and the light company as imposed a duty of reasonable care by the light company toward him must be ascertained from the terms of the contract set out and relied upon by the pleading of the plain[822] tiffs below. In other words, if there be a conflict between the terms of the written contract and the allegations and conclusions of the declaration, the true fact will be taken to be in conformity with the contract pleaded in the declaration.
It is clear to us that the contract obligated the light company to do no more than to “furnish to the party of the second part electrical energy for power purposes at the premises occupied by the party of the second part, known as a ‘linter washing and drying factory.’ ”
The contract imposed no duty upon the light company to furnish lights and keep them burning in the factory for the use and safety of the employees therein. No such .service was promised or contemplated under the contract, therefore it necessarily follows that, since there was no such duty on the part of the light company toward the deceased, there can be no liability against it for damages on account of the unfortunate death alleged to have been caused by the extinguishment of the lights in the plant.
The appellant contends that the light company was the agent of Crawford, and as such agent negligently failed to keep the plant lighted as a duty owed to Crawford and the deceased employee, Mullican. Wo have reviewed exhaustively the authorities on the question of the liability of agents for negligence, in the performance of duties, to principals and third persons, and with much interest we have observed the distinctions made between acts of nonfeasance and misfeasance, or acts of omission and commission. We find our own court in Feltus v. Swan, 62 Miss. 415, held that a mere agent is not liable for an omission of duty except to his principal. This rule appears to be well established in the text-books and many decisions in other states. However, the more modern rule, which we think is based upon better reasoning, is that the relation of agency does not exempt a person from liability for [823] an injury to a third person resulting from his neglect of duty for which he would otherwise he liable. Thl9 liability is not based upon the contractual relation existing between the principal and agent, but upon the common law obligation that all persons must s'o use that which he controls as not to injure another. But it must be borne in mind that this rule of liability always rests upon the question of the duty of the agent toward the injured party and his negligent disregard or violation of that duty, and that where no duty exists there can be no liability. It is the fact that the agent is guilty of a wrongful or negligent act amounting to a breach of duty which he owes to the injured person that makes him liable. It seems, therefore, that the modern rule tends to abolish the distinction between the agent’s acts of commission and omission wherever such act involves a breach of duty. 21 R. C. L. 851; Story on Agency, section 399.
It is argued, in substance, by the appellant that the light company as agent of Crawford negligently failed to furnish lights continuously burning for the use and protection of the employees in the factory. This contention cannot be maintained, in our judgment, for the reason that there was no privity or other relation between the light company and the deceased which obligated the light company to furnish continuous lighting, or any lights whatever, in the factory.
Nor was there any common-law duty imposed upon the light company to furnish a safe and continuously lighted plant for the use and safety of the deceased. In-truth, the light company here was not an agent of Crawford to furnish lights in the factory. It had no control or supervision over the lighting of the plant, but was a mere contractor to furnish electrical energy for power purposes at a stipulated price per kilowatt hour. Therefore, in view of the facts alleged in the declaration, there is no liability on the part of the [824] light company for the unfortunate death of Mr. Mullican; consequently the judgment of the lower court as to the light company is affirmed.
As to the appellee Crawford, we think the lower court erred in rendering a judgment in his favor on the plea in bar setting up his discharge in bankruptcy. The motion, which was sustained by the court, for final judgment on this plea should not have been granted until the order of a stay of proceedings in the case had been set aside, and, even then, judgment on the plea should not have been allowed, since the plea concluded “to the country.” It is true that this was merely a mistake in the form of the pleading, and the plea could haye been amended to one of verification, which would have called for a replication, yet this was not done, and since the plea put at issue the fact pleaded by concluding “to the country,” we are not willing to say that, while the pleadings were in this shape through no fault of appellants, and without waiver, the motion for a final judgment on the plea was proper. It appears that the plea was insufficient in law and form, and could have been stricken or answered either by demurrer or replication, but its conclusion “to the country” should have been under the circumstances considered as a joinder of issue, if valid at all for any purpose.
The judgment of the lower court as to the' appellee Crawford is reversed, and the cause remanded; affirmed as to the appellee light company.
Affirmed in part, reversed and remanded in part.