Booth v. J. G. White Engineering Co.

The opinion of the Court was delivered by Mr. Justice Hydrick. Defendant appeals from judgment for plaintiff for $2,400 actual and punitive damages, recovered under these circumstances : Defendant was engaged in building a dam across Broad River, at Parr Shoals, in Fairfield county. For the convenience of its employees, defendant ran a mess hall, at which between two and three hundred of its employees, plaintiff among them, were furnished meals, the pay therefor being taken out of their wages. George Plensinger was employed by defendant as steward of the mess hall. At the midday meal, on February 16, 1913, Aubrey Henry, one of the boarders, and the steward had a personal encounter which grew out of complaint made by Henry to the steward about the meal. The steward knocked Plenry down with a pick handle, and he was put out of the building. Plearing that Plenry had made threats to collect a number of his friends, and, when they came in to the evening meal, engage him in a difficulty and cut him up, the steward reported the matter to defendant’s walking boss, camp boss, and constable. They advised him to prepare for the attack. Accordingly, he armed himself with a pistol, and when Henry came in that evening, an altercation ensued. The testimony is conflicting as to whether it was brought on by Henry or the steward. The steward fired twice at Henry. *490 The first shot missed him, and struck plaintiff in the back, while sitting at a table waiting to be served. The second shot killed Henry. 1, 2 The issues were: Was the steward acting within the scope of his authority, as the agent of defendant in the management of the mess hall? If so, was his conduct, as to plaintiff, negligent and in reckless disregard of plaintiff’s rights ? There was testimony tending to prove the affirmative of each of these issues, and they were, therefore, properly submitted to the jury. Hensingér was informed several hours before the evening meal of the contemplated attack upon him at that time. He knew there would probably be several hundred men in the dining room of which he had control, and where, as defendant’s agent, it was his duty — as the evidence tended to prove — to preserve order. Would ordinary prudence and care for the safety of his guests have suggested a different course? Was he at fault in bringing on the difficulty? If not, did he act with due care, as to plaintiff, in the means and manner of his defense? Was the course adopted in reckless disregard of the safety of his guests ? The circumstances required submission of these questions to the-jury. 3 The Court instructed the jury that, when plaintiff entered into the employment of defendant, he assumed all the risks incident thereto, and that one of these was the negligence of his fellow servants, and, if Hensinger was acting upon his own account, and was not representing the defendant — not acting within the scope of his employment — not doing something incumbent upon defendant to do, he was a fellow servant of plaintiff, and defendant was not liable for his acts; but, if he was acting within the scope of his authority as steward, and performing a duty owing by defendant to its servant-guests, and was negligent in the discharge of that duty, defendant would be liable for the direct consequences of his negligence. In this, there was *491 no error. Redding v. R. Co., 3 S. C. 1; Jackson v. Ry., 77 S. C. 550, 58 S. E. 605. 4 Appellant complains of the instruction that a servant assumes the risks incident to his employment, “but he does not assume the risks of incompetent servants.” Standing alone, this instruction would have been erroneous; but the Court had just told the jury that, if Hen-singer was a fellow servant of plaintiff, defendant was -not liable, unless he was incompetent, and defendant was negligent in employing him. But if defendant exercised ordinary care in employing him, it had discharged its duty under the law; that, in that regard, defendant was bound onty to exercise ordinary care. From this, it will be seen that the jury could not have been misled by the subsequent remark above quoted, because, from what had just been said, they must have understood the Court to mean that a servant does assume the risk of incompetency of his fellow servants, when they are selected with due care. Th'e charge must be construed as a whole, and the language quoted, in connection with what had been said immediately before. Besides, there was not a particle of testimony tending to prove negligence in the employment of Hensinger. We are satisfied, therefore, that defendant suffered no prejudice from the failure to properly qualify the language quoted in the immediate connection in which it was used. 5 The Court refused defendant’s request for this instruction: “If you find that the act of Hensinger was justifiable, when that is made the basis of a cause of action, that act could not'warrant a recovery of damages.” The request was properly refused, because, as said by 'the trial Judge, the action was based on the negligence of Hensinger, as affecting the plaintiff, and that feature of his conduct -was wholly eliminated by the request, -which sought to confine the consideration of his conduct to its aspect with regard to his right of self-defense against the attack of Henry. It is conceivable that Hensinger may have been *492 justifiable — more correctfy, excusable — -in killing Henry, but culpable in so far as his act affected the plaintiff. One may be negligent in doing that which he may lawfully do, either in the means, manner, or time of doing it, or in doing it under circumstances which indicate the lack of proper consideration for the rights of others who may be unintentionally affected. If, in the lawful exercise of the right of self-defense, one accidentally injures an innocent bystander, ordinarily, it is damnum absque injuria; but it is not so, if he is guilty of negligence or folly with respect to the rights of the innocent bystander injured, and the question of negligence, where the facts are in dispute or susceptible of more than one inference, is for the jury. This rule was applied in Morris v. Platt, 32 Conn. 75; Paxton v. Boyer, 67 Ill. 132, 16 Am. Rep. 615; and Lord v. Shaw, 137 Pac. 885, 50 L. R. A. (N. S.) 1069. The case of New Orleans etc. R. Co. v. Jopes, 142 U. S. 18, 12 Sup. Ct. 109, cited and relied upon by appellant, is not in point. In that case, Jopes, who was a passenger on defendant’s train, was shot by the conductor. He sued the railroad company for damages. The defense was that the conductor’s act was justifiable, because he was acting in self-defense of an attack made upon him by Jopes. Of course, if the conductor’s act was justifiable, he was not liable to Jopes; nor was the company, because its liábility was predicated upon that of the conductor. The case would have been analogous, if, in defending himself against the attack of Jopes, the conductor had negligently injured another passenger, who had sued the company. The remaining exceptions are clearly without merit, and in view of what has been said, the}- need not be specially considered. Judgment affirmed. Footnotes [1] Footnote.- — As to liability of innkeeper for injuries to guest by servant, see notes in 69 L. R. A. 642, 4 L. R. A. (N. S.) 649, 12 L. R. A. (N. S.) 1155.