New Deemer Mfg. Co. v. Alexander

85 So. 104, 122 Miss. 859

• Court: Mississippi Supreme Court
• Decided: March 15, 1920
• Docket: No. 21189
• Status: Published

Opinions

eti-irid,gb, J.,

delivered the opinion of the court.

Appellees brought suit against the appellants for the death of James Clarence Alexander, the husband of Ida Mae Alexander and the father of the other appellants. The New Deenler Manufacturing Company is a lumber manufacturing company and, among.other instrumentalities, operated what is known as a skidder and drum which is placed on the railroad track and operated by the dangerous agency of steam, "and which is used for the purpose of drawing’ logs from the forest to the tracks and loading them on cars; the logs being attached to a cable and pulled from the forest to the track by means of a cable drawn by steam power. In order to make the slddder and drum secure, guy-ropes or wires were fastened to stumps or trees or to logs buried 'beneath the ground, and unless securely fastened the machinery would be liable to be pulled off of the track.

One Robert White was the foreman of the slddder crew and operates the machine. The deceased was engaged in cutting wood to be used in firing the machine at and near the machine and was. a member of the crew under the direction of White, the foreman. The guy wires of the slddder were fastened to trees at the time of the injury, and one of the trees to which said guy wires were attached was a pin oak which leaned slightly from the slddder in the direction of where the deceased was working, and this pin oak was pulled out of the ground and fell upon the deceased and killed him during the operation of the slddder in pullingl the log from the forest to the track of the appellant.

It appears fromi the testimony of plaintiffs that in drawing the particular log from the forest it became fouled, that is to say, lodged or fastened against a tree or some obstruction, and three pulls or efforts were made to dislodge it by operating the machine.; According to the plaintiff’s witnesses, these were powerful efforts to dislodge the log being drawn by the use of steam power, and, when such efforts were unavailing, the log was dislodged by the means of horse- power or some force which would dislodge the log from the .obstruction when it would be drawn by machinery onto the track. According to witnesses for the plaintiffs, the slddder was a powerful machine operated by sfeam, and, when the cables or ropes were attached to a log and it became fouled, powerful force was applied, and it is shown in the testimony that sometimes the tree to which the guy ropes were attached pulled up out of the ground, It is in the testimony for the plaintiffs that the pin oak is a tree having no tap root but the roots of which lie along the surface of the ground, and that it was a matter of common knowledge among timber men that the pin oak was unsafe for the purpose for which it was used in the present case. It is also shown for the plaintiffs that it was customary to make one or two pulls to unfoul a log with the machine, before unfouling it with other appliances, and it is the testimony that on the occasion resulting in Alexander’s death three powerful pulls with the steam were used before it was unfouled. After being- unfouled, it proceeded a short distance and was fouled again, when another application of steam power was made which unfouled the last obstruction. But shortly, and almost immediately, thereafter the tree fell upon the deceased and killed him. The operator of the steam power testified that the log had become unfouled by the use of the machine and proceeded! some distance before the tree fell, and that the first notice he had of the tree falling was when he felt the wind from the falling tree. The ipin oak to which the guy wires were attached and which killed the deceased was in a swamp, and the ground was wet from a rain the day before, and it was pulled up, making a hole where it stood some five feet in diameter and a foot and a half in depth.

It appears that White, the foreman, had recently been installed in this Work, having no previous experience in this particular work, but had been engaged in opning a right of way for railroad or logging road, and had used machines for the purpose of pulling trees out of such right of way. White claimed he had no knowledge that a pin oak had no tap root prior to the injury, but admits that he had pulled up and seen pulled up- trees-before that time to which guy ropes were attached.

There was a conflict between the evidence for .the plaintiffs and for the defendants upon the question as to whether a pin oak was a safe tree to use for this purpose and as to common knowledge upon this subject. There was a verdict for the plaintiffs.

The appellants insist that there should have been a peremptory instruction for the defendants on liability, contending that there is no evidence showing or tending to show that appellants knew or had reason to believe that the tree would fall. In ourl view of the case the majority of the court thinks there is suffioent evidence to go to the jury to find that there was knowledge among experienced timbermen that the pin oak tree had no tap root and was an unsafe tree to use for the purpose for which it was used in this case. The evidence shows that the machinery used for toning was very powerful and that when a log was being drawn and became fouled, and the power of the machinery was applied, that something was liable to give way. It appears from the foreman’s own testimony that other trees had been pulled up by this method, and it appears from, all the evidence that the force used is very powerful. We think there'was sufficient evidence to warrant the jury in believing that the appellant knew or ought to have known of the danger in using this kind of tree, and that a peremptory instruction was rightfully refused. It is true that the appellants are only required to use due and reasonable diligence, but if the evidence for the plaintiff's was true it was negligent in this respect.

It is next contended that, if there was any negligence at all in fastening the guy wire to the pin oak, it was the negligence of a fellow servant of the decedent in carrying out the details of the work which the master could not be expected to superintend. We think the deceased'being a member of the crew and under the jurisdiction of foreman White, being directed by White where to work, his work being necessary for the operation of the machinery under the plans which were being’ used by the company, that it comes within the provisions of chapter 194, Laws of 1908, section 6684, Hemingway’s Code, which reads as follows:

“Every employee of a railroad corporation, and all other corporations and individuals, using engines, locomotives or cars of any kind or description whatsoever, propelled by the dangerous agencies of eteam, electricity, gas, gasoline or lever power, and running on tracks, shall have the sarnie rights and remedies for an injury suffered by him from the) act or omission of such railroad corporation or others, or their employees, as are allowed by law to other persons not employed.

“Knowledge, by any employee injured, of the defective or unsafe character or condition of any machinery, ways or appliances, or of the improper loading of cars, shall not be a defense to an action for.injury caused thereby, except as to conductors or engineers in charge of dangerous or unsafe cars or engines voluntarily operated by them. When death ensues from an injury to an employee, an action mlay be brought in the name of the widow of such employee, for the death of the husband, or by the husband for the death of his wife, or by a parent for the death of a child, or in the name of a child for the death of an only parent, for such damage as may be suffered bv them respectively by reason of such death, the damages to be for the use of such widow, husband parent or child, except that in case the widow should have children, the damages shall be distributed as personal property of the husband. The legal or personal representatives of the person injured shall havei the same rights and remedies as are allowed by law to such representatives of other persons. In every such action the jury may give such damages as shall be fair and just, with a reference to the injury resulting from such death to the person suing. Anv contract or agreement expressed or implied, made by ah employee to waive the benefit of this section shall hie null and void; and this section shall not deprive an employee of a person, natural or artificial, or the legal or personal representatives of such person, of any right or remedy they now have by law. ”

See Hunter v. Ingram Day Lumber Co., 110 Miss. 744, 70 So. 901; J. J. Newman Lumber Co. v. Irving, 1118 Miss. 59, So. 2; Ellis v. Bear Creek Lumber Co., 117 Miss. 742, 78 So. 706.

The instruction for the plaintiff on this point is as follows:

“The court instructs the jury for the plaintiffs that if the jury believes from a preponderance of the evidence that Bob White was the foreman of the slddder crew and that James Clarence Alexander was a member of the said crew and that the said Bob White as foreman of said crew had charge of the work about which the said skidder crew was engaged and had control of the members of said crew and was vested by the New Deemer Manufacturing Company with authority to control and direct the services of the members of the said crew, and that he told James Clarence Alexander to saw a log of wood at a timé when there Was a guy line tied to a pin oak tree near where the said James Clarence Alexander was required to work, and that the said pin oak tree was not sufficiently embedded in the earth and would not stand the strain which would naturally be put upon it should a log become fouled, and that the said Bob White, knowing the location of said Alexander and knowing said log was fouled, operated the machinery which drew the log toward the track at a time when the log was fouled and when he knew or by the exercise of reasonable diligence could have known that to operate said machinery under the circumstances would endanger the life of the said James Clarence Alexander and that the tree was thereby caused to be pulled up; and fell upon James Clarence Alexander as a result of the operation of the said machinery under the circumstances under which it was operated, then in that event the jury should find for the plaintiffs as against both of the'defendants.”

It is next insisted by the appellants that the instruction for the plaintiff as to measure of damages is erroneous and that the case should he reversed for this reason. This instruction reads as follows:

“The court instructs the jury for the plaintiffs that should they find for the plaintiffs they should award them such an amount as the jury may believe from the evidence will be reasonable compensation. For such amount as the jury may believe from the evidence is the present value of the amount James Clarence Alexander would have earned, if any, during the remainder of his life, had he not lost his life as alleged in the declaration herein. And in addition thereto, shall award the present value of any support which the jury may believe from the evidence that the said James Clarence Alexander would have given to his children until they reached their majority, provided the jury believes from the evidence that the said James Clarence Alexander and the said children would have lived until said children reached their majority. And, in addition thereto, such an amount, if any, as the jury may believe from the evidence will be reasonable compensation for the present value of any amounts which the jury may believe from the evidence that the said James Clarence Alexander would have given, to his wife during the remainder of his natural life for her maintenance and support providing the junyi believe from the evidence that his wife would have lived as long as James Clarence Alexander. And, in addition thereto, such an amount, if any, as the jury may believe from the evidence will be reasonable compensation for the loss to the wife and children of the companionship, protection, and society of the husband and father, but not by way of solatium.”

In the view of the majority of this court, this instruction is erroneous because it authorizes a recovery of such an amount as the jury may believe from the evidence is the present value of the amount deceased would have earned, if any, during the remainder of his life, and, in addition thereto, shall award the present value of any support which the jury may believe from the evidence the said James Clarence Alexander would have given his children until they reached their majority, and the present value of any amount the jury may believe Alexander would have given his wife, and, in addition .thereto, such amount as will be reasonable compensation for the loss to the wife and children, of the companionship, protection, and society of the husband father. In other words, the jury were told they must find the present value of all that Alexander would have earned during his expectancy, and then, in addition to all he would have earned, such further amount as it would take.to support his wife and) children until the children sfiould reach their maj’ority and as long as the wife lived, thus making the monteary value of his life not only what he would have earned, without diminution for his own support, but also such additional amount as it would take to support his wife and children. The wife and children would have been supported had Alexander lived from his earnings because he had no income other than his earnings as shown in the evidence. When the defendants, have paid all that the deceased would have earned during his expectancy they have paid all the monetary value of Alexander’s life, and when, in addition to that, they have paid reasonable compensation for the loss of companionship, protection, and society, they have paid the full value recognized or imposed by the statute, there being no pain and suffering by deceased the death being instantaneous.

The statue, Laws 1914, Chapter 214, Hemingway’s Code, section 501; provides the measure of the right, after providing who may sue, and providing for an action resulting from death as follows: .

“In sueli action the party or parties suing shall recover such damages as the jury may determine to be just, taking into consideration all of the damages of every kind to the decedent and all damages of every kind to any and all parties" interested in the suit.”

The rights other than for loss of companionship, protection, and society of. all the parties is rooted in the earnings of the decedent during his expectancy. So far as the present case is concerned, as there was no pain and suffering, the death being instantaneous, the suit may be brought by one for all, or all may join in one suit, and the j’ury are to consider all the' rights that all of the plaintiffs have and all damages that fall to each ofl them. But it is manifest that so far as the support is concerned that such support had the decedent lived must come out of his earnings. There was no other source of income in the present case for these benefits to flow from. The instruction as asked pyramided all of these items, making double damages by allowing not only all of the money he would have earned, but, in addition to all he' would have earned, the support of his wife and children where there was no source for such other damage to come from on the present record. It is insisted by the appellees that this construction is warranted by the case of Cum. T. & T. Co. v. Anderson, 89 Miss. 732, 41 So. 263, and this case seems to have been misunderstood in drawing the present instruction. The instruction in the Anderson Case was condemned and the judgment reversed because it was erroneous. In the course of the opinion Judge Whitfield said: v ■ '

“The extent of recovery, before majority, of the child killed, is the value of the services of the child from the time of death up to majority, plus such damages as the jury may fairly award as compensation for the physical and mental anguish endured by the child killed between the injury and death, to which must also be added any such gratuities as the evidence may show the mother had a reasonable expectation of receiving before or after majority, and also whatever sumí the son might'have recovered as the present .value of his own expebfanoy. These four elements of damage are all proper.”

The language quoted is misleading because the opinion does not point out, what was evidently in the mind of the court, that the son’s expectancy should be measured and valued with reference to the other elements of damages. He would not recover the earnings of that part of his life which belonged exclusively to' his mother. All these elements named are proper to be considered by the jury; but, in the language of the statute, after the jury has considered these various elements, the jury finds such amount as it “may determine to be just, taking into consideration all of the damages of every kind to the decedent and all damages of every kind to any and all parties interested in the suit.”

The language of this opinion above set out was used by the judge after the instruction had been condemned and, while persuasive, was nothing more than an expression of his views not necessary to the decision of the case. The object of the statute is to furnish compensation for the injuries received to the parties suing for the death of the deceased, they having the right to sue for the value of the life under the statute. "Where there is pain and suffering between the injury and death, they are entitled to recover for that also; but the death in this case was instantaneous. The deceased was earning one dollar and seventy-five cents per day and had an expectancy of approximately thirty-six years, and the verdict was for twenty thousand dollars. We are unable to say that this verdict would not have been less had the jury been correctly instructed on the law.

The question of liability was submitted to the jury,on proper instructions, and the case on liability has been found by the jury in favor of the plaintiffs, and the majority of the court thinks the judgment as to liability must he affirmed and the cause reversed and remanded for a new trial on the amount of damages.

Affirmed in part, and reversed and remanded in part.

stevens and cook, JJ., dessent.