* Headnote. Master and Servant, 26 Cyc., p. 1306 (1926 Anno.). The appellee sued the appellant for an assault committed on him by an employee of the Great Southern Lumber Company and recovered a judgment from which this appeal is prosecuted.
The plaintiff and one Percy Talley were employed by the Great Southern Lumber Company in and about the operation of a skidder. The skidder at the time of the acts complained of was being dismantled to be removed to another point. May and Talley worked on opposite *Page 36 sides of the skidder and were under a man named Warren, as foreman. May, the plaintiff, missed a hanger on his side of the skidder and made inquiry of a negro employee as to what had become of the hanger and was informed that Talley had taken it. May then went on the opposite side of the skidder and asked generally of the persons employed, "Which of you boys has got my hanger?" and that Talley replied with an oath that he had it and would take anything else he wanted and that May then replied, "I don't know about that. I don't think I would let a man take something I was working with without saying or doing anything about it." Thereupon Talley applied to May an epithet which stirs the fighting blood of a Southern man, as placing a negro "in the dozen" stirs up his combativeness.
According to the plaintiff, Talley assaulted him first, striking him with an iron, and then they clinched and Talley struck the plaintiff several blows in the face with his fist and tried to get a pine knot which May succeeded in keeping out of his reach. While they were clinched Warren, the foreman, happened along and separated the two men. May seems to have been badly worsted and was sent to a doctor for medical treatment and was under treatment for some days and according to the doctor, he appeared to have fractured a rib where it joins to the breastbone.
At the conclusion of the plaintiff's evidence the defendant moved to strike out the evidence and asked for a peremptory instruction, which motion was overruled. The defendant also requested a peremptory instruction at the close of the whole case which was also refused.
Neither the declaration nor the proof shows a case where the master was negligent. Talley had no control or direction of the services of May, and May had no control or direction of the services of Talley. Neither one stood in the master's shoes in relation to the other, and the act of Talley cannot be said on the facts in this case to be the act of the master. There is an allegation *Page 37 that the master was negligent in employing Talley or that Talley was in fact a dangerous and vicious man whose employment would endanger the safety of the other employees. The proof wholly fails to show that Talley was in fact quarrelsome or dangerous. The proof does show that Talley was not discharged after the assault, but was kept in the employment of the appellant until he became sick and left such employment. Therefore the case does not come within the pronouncement of this court in Hines v.Green, 125 Miss. 476, 87 So. 649, where the rule was announced that a master who employs a dangerous, quarrelsome, and vicious servant, or retains him in his service after knowledge of his dangerous character, and such servant, while in the course of his employment, and in furtherance of the master's business, commits an assault on another servant who is also employed in the master's business and is acting in furtherance of the master's business is liable for the injuries resulting from such wrongful assault.
It is not sufficient to constitute liability that the quarrel and assault arose about the master's business, but the master must owe some duty to the person assaulted or must have been guilty of some misconduct or negligence with reference to the matter about which the assault was inflicted.
In the Green case, supra, the proof was clearly that the master had knowledge of the dangerous character of his employee and retained such employee over the protest and objection of other employees in his service.
In Hines v. Cole, 123 Miss. 254, 85 So. 199, it was held by this court that 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 the furtherance of his master's business; that under the rule at common law a master is not responsible to the servant for an injury sustained by him because of the negligence of another servant while both were engaged in the same service, *Page 38 with this exception, that a master who negligently or knowingly employs or retains in his service an incompetent servant is liable for injuries to a fellow servant resulting from the incompetency of the servant so employed and retained, unless the injured servant has assumed the risk incident to such incompetency.
Under our statute abolishing the fellow-servant rule, it is abolished where the master is negligent with reference to the subject-matter of the cause of action, but if the master is not negligent the statute does not apply.
We think, under the facts disclosed by the record, there was no liability on the appellant; therefore the judgment will be reversed, and judgment rendered here for the appellant.
Reversed, and judgment here.
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