Hines v. Cole

Smith, C. J., delivered the opinion of the court. This is an appeal from a. judgment awarding the appellee damages because of an assault made upon-him by an employee of the appellant. The appellee and one Cannon were employed by the appellant in the repair shops of the Yazoo & Mississippi Valley Eailroad at Vicksburg, the appellee being the foreman of a crew which repaired the metallic portions of freight cars, and Cannon being the foreman of a crew which repaired the wooden portions thereof. .Elach of them were of equal rank and 'reported to the same superior officer. Neither had any supervision of or connection with the work of the other, except that Cannon had the right to designate the cars to be repaired. On the occasion in question, the appellee, while engaged in repairing the metallic portion of a car, tore out a portion of the wooden flooring there [264] of in order to facilitate the making- of the repairs by him and his crew. Cannon then appeared upon the scene, objected to the appellee’s removing- any of the flooring of the ear, as so to do was an encroachment upon his (Cannon’s) work, resulting in a fight between them, in which the appellee claims to have been injured, and that Cannon was the aggressor. According to' the evidence for the appellee, Cannon’s reputation for peace and violence is bad. One of the assignments of error is.that the court, below refused to direct verdict in the appellant’s favor. Counsellor the appellee do not, and could not successfully, contend that when Cannon assaulted the appellee he was acting within the course of his employment and with a idew to his master’s business. Their contention is that the appellant was negligent in employing Cannon and in retaining- him in his service, for the reason that he was such a violent and dangerous character as to be a menace to the safety of his fellow-servants, which fact was or should have been known to the appellant. Conceding for the sake of the argument that this is true, and assuming that the appellee was wrongfully assaulted by Cannon, nevertheless he cannot recover if, as the fact is, when lie made the assault Cannon was not acting within the course of his employment and with a view to his master’s business. 2. Cyc. 1539; 20 Am. & Eng. Enc. L. (2d Ed.), 171; 18 R. C. L. 807; 6 Labatt on Master and Servant (2d Ed.), section 2347; Richberger v. Express Co., 73 Miss. 161, 18 So. 922, 31 L, R, A. 390, 55 Am. St. Rep. 522; Railway Co. v. Harz, 88 Miss. 681, 42 So. 201; Railway Co. v. McAfee, 71 Miss. 70, 14 So. 260; Railway Co. v. Latham 72 Miss. 35, 16 So. 757,; Railroad Co. v. Hare, 104 Miss. 564, 61 So. 648. The rule attempted to be invoked by the appellee is a relic of the old fellow-servant rule, which has been abolished in so far as it applied to railway employees, both bjr our local statutes and by the federal employers’ Liability Act (U. S. Comp. St. section 8657-8665), and as to such employees, [265] is no longer necessary to a recovery from the master for an injury inflicted hy a fellow servant. The rule at common law as to fellow servants is that the master is not answerable to a servant for an injury sustained by him because of the negligence of another servant while both were engaged in the same service, 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, sustained through the incompetency of the servant so emploved and retained, unless the injured servant has assumed the risks incident to such incompetency.” 12' Am. & Enc. Enc. L. (2d E!d.), 910. The duty of the master under this rule to exercise care in the selection of fellow servants extendes only to the selection of such as “possess the qualifications, mental, moral, and physical, which will enable them to perform their duties without exposing . . . their co-employee ’s to greater dangers, than the work necessarily entails. . . . The essential ground upon which the liability thus predicated is based is that ‘the master impliedly contracts that he will use due care in engaging the services of those who are reasonably fit and competent for the performance of their respective duties in the common service.’ A master, therefore, is not liable for injuries caused by the negligent) act of an incompetent servant, where that act was not one of those which he was authorized to do.” 3 Labatt on Master and Servant (2d Ed.), section 1079; Roebuck v. Railway Co., 99 Kan. 544, 162 Pac. 1153, L. R. A. 1917E, 741. The appellant’s negligence vel non in the employment of Cannon and in retaining him in his service is therefore wholly immaterial, even under the rule attempted to he invoked by the appellee, since the assult by the Cannon upon him was not made in the course of Cannon’s employment. The exception to the fellow-servant rule could not, in any event, be of any value here, or add anything to the ap [266] pellee’s right to recover; for, since the tule itself has been abolished, the appellant would he answerable to the appellee for the assault on him by Cannon had it been made in the course of Cannon’s employment, although the appellant! was without any negligence whatever in employing Cannon or retaining him in his service. The court below should have directed a verdict for the appellant, and, because of its failure so to do, its judgment will be reversed; and, since the record presents no question of fact to he ascertained by a jury, judgment final will he rendered for the appellant here. Section 4919, Code of 1906 (Hemingway’s Code, section 3195); Hairston v. Montgomery, 102 Miss. 364 59 So. 793. Reversed, and judgment here for the appellant.