pass upon the merits of the question of whether or not, since the rendition of the decree of divorce, the mother has become an unsuitable and unfit person for the care and custody of the child.

While the question of the jurisdiction of the court to pass upon the merits of a controversy of this kind between husband and wife is not very much discussed in the authorities herein cited, it will be remembered that this question is always a preliminary question for the consideration of the court, and by passing upon the merits of the cases the courts thereby held that they had jurisdiction of the controversy. Other interesting cases bearing upon this discussion are Re Bort, 25 Kan. 308, 37 Am. Rep. 255; Ex parte Stewart, 77 Misc. Rep. 524, 137 N. Y. Supp. 202; People ex rel Allen v. Allen, 40 Hun. (N. Y.) 611, affirmed in 105 N. Y. 628, 11 N. E. 143; Wilson v. Elliott, 96 Tex. 472, 73 S. W. 946, 75 S. W. 368, 97 Am. St. Rep. 928; Ex parte Boyd (Tex. Civ. App.), 157 S. W. 254; Woodworth v. Spring, 4 Allen (Mass.) 321; note to Seely v. Seely, 12 Ann. Cas. 1059.

The cause was tried in the chancery court upon bill and answer, in which event all of the allegations in the answer must be considered as true. The court held, however, that it had no jurisdiction to try the merits of the case, because the minor was a ward of the Tennessee court. Under the authority of Foster v. Allen, supra, and the other cases cited in this opinion, we think the learned court below was in error.

Reversed and remanded.

NEW DEEMER MFG. CO. ET AL. v. ALEXANDER ET AL.

[85 South. 104, In Banc. No. 21189.]

1. MASTER AND SERVANT. Duty in operating steam log skidder defined. A manster operating machinery by the use of the dangerous agency of steam, which machinery is placed upon tracks and used for pulling logs from the forest, must use such reasonable precaution for the safety of servants as a reasonably prudent man would exercise for the safety of employees, and where an employee is killed by the negligence of a foreman operating a skidder from attaching the guy wires to a tree known to experienced woodmen to be unsafe for that purpose, and after so attaching said wires uses such power in a negligent manner by the use of undue force, and as a result pulls the tree from the ground letting it fall on an employee placed within the zone of danger by the foreman to do work necessary to the operation of the skidder, the master is liable.

2. MASTER AND SERVANT. Employee working around steam log skidder on track held within statute limiting fellow-servant doctrine. An employee working around a skidder, placed on a track and operated by steam, and whose work is necessary to the operation of the engine and who is subject to the foreman of the skidder crew is protected by the provisions of chapter 194, Laws 1908 (section 6684, Hemingway's Code), and does not come within the fellow-servant doctrine of the common law. Hunter v. Ingram-Day Lumber Co., 110 Miss. 144, 70 So. 901; Ellis v. Bear Creek Mill Co., 117 Miss. 742, 78 So. 706; J. J. Newman Lumber Co. v. Irving, 118 Miss. 59, 79 So. 2-cited.

3. DEATH. Instruction on damages held erroneous.

In a suit for damages for the death of a person, based upon chapter 214, Lews 1914 (section 501, Hemingway's Code), who was instantly killed and whose sole earnings were his wages, it was reversible error to instruct the jury that in assessing the damages for the complainant they would allow the present value of the entire earnings of deceased during his expectancy, and, in addition thereto, the present value of the amount he would have expended for support of his children during minority, and, in addition thereto, the present value of such amount as deceased would have expended for the support of his wife during her lifetime or expectancy, and, in addition thereto, such amount as would be reasonable compensation for the loss of the society,

[122 Miss.

Brief for Appellant.

protection, and companionship of the deceased to his wife and children.

4. DEATH. Measure of damages defined.

In actions against a master for the wrongful death of a servant, in the absence of facts warranting punitive damages, the measure of damages is the present value of the expectancy of the deceased measured by his earning capacity, plus reasonable compensation for pain and suffering, if any, plus the value of companionship, protection, and society to those suing, and, where he has property or income independent of his earnings, the reasonable value of such gifts as he has been in the habit of bestowing upon his family. It is compensation for the death to those entitled to sue that the law intends to award in the absence of elements of punitive damages.

STEVENS and Cook, J. J., dissenting.

APPEAL from circuit court of Neshoba county.

HON. A. J. M'CLAURIN, Judge.

Action by Mrs. Ida Mae Alexander and others against the New Deemer Manufacturing Company and others for wrongful death of her husband. Judgment for plaintiffs, and defendants appeal. Affirmed in part, and reversed and remanded in part.

Watkins & Watkins, Roger Wilson and Amos & Dunn, for appellant.

A peremptory instruction should have been given for appellants by the court below. There is no evidence showing or tending to show that the appellants knew or had reason to believe that the tree would fall.

In 4 Labatt, sec. 919, the rule is announced as follows: "All that can be required of the master is that he shall use due and reasonable diligence in providing safe and sound machinery, and in the selection of fellow servants of competent skill and prudence, so as to make it reasonably probable that injury will not occur in the exercise of the employment. The master is not bound to see that his instrumentalities are absolutely safe and

suitable, or perfectly safe; nor is he bound to see that in every event his instrumentalities are in safe condition, nor to see that they are as safe as human skill and foresight can make them. So far as there is any guar anty on his part, it is merely that due care shall be exercised in furnishing and maintaining the instrumentalities. The master is not bound to guarantee his servants against even extraordinary risks, as in case where the servant is ordered to do something outside of the scope of his regular employment." 'Kent v. Y. & M. V. R. R. Co., 77 Miss. 494; Railroad Co. v. Elliott, 149 U. S. 266, 271; 2 Bailey on Pers. Injs., sec. 2639; Railway Co. v. Toy, 33 A. R. 57; s. c. 91 Ill. 474; 3 Elliott on Railroads, sec. 1278."

In the case of Ill. Cen. R. R. Co. v. Wolley, 77 Miss. 927, this court used the following language: "The rule of duty of a master to his servant is not so strict as his duty to the public who hire his services for transportation. He is held only to reasonable care in furnishing his servants with safe ways, appliances and machinery, and in an action for damages, the servant is held to make it clear that the negligence of the master was the proximate cause. Nor is a railway company bound to furnish its employees with an absolutely safe track, the requirement being that it shall be reasonably careful in keeping it in safe condition. 14 Am. & Eng. Ency. L., 879." Hope v. R. R. Co., 98 Miss. 822; 2 Labatt, Mas ter and Servant, sec. 832, 20 Am. and Eng. Ency. Law, 86-92; 26 Cyc., 1410 to 1417, inclusive, and 1444 et seq.; 4 Thompson on Negligence, sec. 3864, et seq.; A. & V. R. R. Co. v. White, 106 Miss. 141; R. R. Co. v. Bennett, 111 Miss. 163; Seiber Lumber Co. v. Urquhart, 79 So. 235, 118 Miss.

Point Number Two. If there was any negligence at all attributable on the fastening of the guy wire to the pin oak tree, the negligence was that of the fellow servant of the decedent in carrying out details of the

Brief for Appellant.

[122 Miss.

work which the master could not be expected to superintend.

The direct question was presented before this court in the case of I. C. Railroad v. Jones, 16 So. 300. In that case an accident happened because the engine slipped on account of the track being wet. The master had supplied sand to be used for the purpose of overcoming the slippery condition of the track but a fellow servant of the plaintiff had failed to apply the same. The court held that the injury grew out the failure of a fellow servant to carry out a mere detail of the work, for which the master was not liable. See Har. Dig. Ry. Dec., p. 59; 4 Labatt, pages 4542, 4553, 4564, 4590. In volume 4, Mr. Labatt cites a large number of cases under note 1; Bjbjian v. Weensocket Rubber Co. (1895), 164 Mass. 214, 41 N. E. 265; Wosbigian v. Washburn & M. Mfg. Co. (1896), 167 Mass. 20, 44 N. E. 1058; See sec. 1543, Note 1, subd. (b) ante; Frazee v. Stott (1899), 120 Mich. 624, 79 N. W. 896; McQueen v. Delaware L. & W. R. R. Co. (1905), 102 App. Div. 195, 92 N. Y. Supp. 585; Standard Pottery Co. v. Moudy (1905), 35 Ind. App. 427, 73 N. E. 188; Kliegel v. Weisel & V. Mfg. Co. (1893), 84 Wis. 148, 53 N. W. 119; New Pittsburgh Coal & Coke Co. v. Peterson (1896), 14 Ind. App. 634, 43 N. E. 270; Harneis v. Cutting, (1899), 174 Mass. 398, 54 N. E. 842; Howard v. Hood (1892), 155 Mass. 391, 29 N. E. 630; Ryan v. Smith (1898), 29 C. C. A. 427, 56 U. S. App. 604, 85 Fed. 758; Burns v. Sennett (1896 Cal.), 44 Pac. 1068; 99 Cal. 363, 33 Pac. 916; McKinnon v. Norcross (1889), 148 Mass. 533; 3 L. R. A. 320, 20 N. E. 183; Kelly v. Jutte & F. Co. (1900), 4 C. C. A. 274, 104 Fed. 955; McGinty v. Athol Reservoir Co. (1892), 155 Mass. 183, 29 N. E. 510; and see Fraser v. Blanchard & Crowley (1909), 83 Vt. 136, 73 Atl. 997; Marvin v. Muller, (1881, 25 Hun, 163; Kennedy v. Jackson & Agri. Iron Works, (1895), 1 Misc. 336, 33 N. Y. Supp. 630; Jenkinson v. Carlin (1894), 10 Misc. 22, 30 N. Y. Supp. 530; Court