Levy v. Mcmullen

• Decision Date: 05 March 1934
• Docket Number: 30934
• Citation: 169 Miss. 659,152 So. 899
• Court: Mississippi Supreme Court
• Parties: LEVY et al. v. MCMULLEN

152 So. 899

169 Miss. 659

LEVY et al. v. MCMULLEN

No. 30934

Supreme Court of Mississippi

March 5, 1934

Division B

Suggestion Of Error Overruled April 2, 1934.

APPEAL from circuit court of Warren county, HON. E. L. BRIEN, Judge.

Action by O. A. McMullen against Nathan Levy and others. Judgment for plaintiff, and defendants appeal. Affirmed.

Affirmed.

Brunini & Hirsch, of Vicksburg, for appellants Nathan Levy and Samuel Albrecht.

Nathan Levy & Company rests upon the assumption that no employer can be held liable for the acts of an employee while he is off duty during the night and engaged in acts not about and in furtherance of his master's business and not about his appointed duties. What an employee does, after his day's work is performed, cannot be within the control of the employer, and his wrongdoings during that time cannot charge liability upon the master.

It is clear from the evidence in this record that Hodgeson had no right, nor was it within any of his appointed duties, to take that car out of the garage at midnight, in a sober or an intoxicated condition, either for the purpose of buying cotton at that time of the night or for his own pleasure.

The testimony of the policeman, and all of the other witnesses, is to the effect that Hodgeson was seen drunk at nighttime. Not a one of them testified that they had seen him drunk during the hours of his work; and none of them testified that he had any such reputation--that is, of being drunk during the hours of his work.

At the time of the injury to young Clifton McMullen, Hodgeson was not about his master's business.

McLaurin v. McLaurin Furniture Co., 166 Miss. 180, 146 So. 877; Craft v. Magnolia Stores Co., 161 Miss. 756, 138 So. 405.

A master clearly cannot be held responsible for a tort committed in furtherance of his business, unless it is shown to have also been committed in the course of the appointed duties of the tort-feasor.

6 Labatt's Master & Servant (2 Ed.), p. 6704; Davis v. Price, 133 Miss. 236, 97 So. 557; Western Union Telegraph Co. v. Stacy, 162 Miss. 286, 139 So. 604; Woods v. Franklin, 151 Miss. 635, 118 So. 450; Isaacs v. Prince & Wilds, 133 Miss. 195, 97 So. 558; Vicksburg Gas Co. v. Ferguson, 140 Miss. 543, 106 So. 258.

Thames & Thames, of Vicksburg, for appellant, A. H. Hodgeson.

The trial court erred in refusing a directed verdict in favor of A. H. Hodgeson.

Where negligence is charged, the negligence must be proven, and in the event that the negligence is not proven, it is the duty of the trial court to direct a verdict for the defendant.

We are cognizant of the fact that our Supreme Court has repeatedly held that while an automobile is not a dangerous instrumentality per se, that an automobile driven by an adult drinking to excess is a dangerous instrumentality. Our views are not in conflict with this rule of law, but we are further cognizant of the fact that our court, and the courts of practically all of the other jurisdictions, have held that where drunkenness is relied upon to show negligence, it must be clearly shown that the drunkenness was the proximate cause of the injury.

Chaney & Culkin, R. M. Kelly and W. W. Ramsey, all of Vicksburg, for appellee.

The fact that Hodgeson may have stopped on the way to the negro store for the purpose of buying a drink of whiskey, or for the purpose of drinking a coca-cola, or for any other purpose, would not change or, in any manner, alter the well established rule, if he was engaged partly on a mission for his employers at the time.

Primos v. Gulfport Laundry & Cleaning Co., 128 So. 507.

The fact that the predominant motive of the servant is to benefit himself or a third person, does not prevent the act from being in the scope of employment. If the purpose of serving the master's business actuates the servant to any appreciable extent, the master is liable if the act otherwise is within the service.

If the act complained of was in furtherance of the master's business, and within the course of the servant's employment, the master will be liable therefor, although it was in excess of the authority conferred by the master on the servant and was wilfully and maliciously done.

39 C. J. 1285; Richberger v. Exp. Co., 73 Miss. 161, 18 So. 922, 31 L. R. A. 390, 55 Am. St. Rep. 522; Natchez, C. & M. R. R. Co. v. Boyd, 141. Miss. 593, 107 So. 1; Hines v. Green, 125 Miss. 476, 87 So. 649; Davis v. Green, 260 U.S. 349, 43 S.Ct. 123, 67 L.Ed. 299; Alden Mills et al. v. Pendergraft, 115 So. 713; Loper v. Yazoo & Mississippi Valley Railroad Co., 145 So. 743; Southern Bell Telephone & Telegraph Co. et al. v. Quick, 149 So. 107; McLaurin v. McLaurin Furniture Co., 146 So. 877.

We believe, and respectfully submit to the court, that the deceased child should have been treated as an invitee. However, the case was tried upon the theory that he was a trespasser, or a licensee, and was submitted to the court upon this theory and this theory alone in the first count of the declaration.

Where a trespasser is actually discovered in a position or situation of peril, there is a duty to exercise ordinary care to avoid injuring him, which duty may be breached either by active conduct or by omission to act.

45 C. J. 749, sec. 145.

Where the presence of a licensee is known, there is a duty to use reasonable care to avoid injuring him, at least by any affirmative acts, the duty toward such a licensee being the same as with respect to an invitee.

45 C. J., p. 803, sec. 207, p. 788, sec. 194; Allen v. Yazoo & Mississippi Valley Railroad Co., 71 So. 386; Lepnick v. Gaddis, 16 So. 213.

The second count of the declaration was based upon the idea that Hodgeson, being an habitual drunkard, it was negligence for the appellants, Levy and Albrecht, to permit him to use the car. The evidence discloses abundantly that he was on duty at the time he killed the boy. Assuming, however, that he was not on duty, he was an habitual drunkard, and the car should never have been entrusted in his care.

Anderson v. Daniel, 101 So. 498; Herrman v. Maley, 132 So. 541; Slaughter v. Holsomback, 147 So. 318.

Argued orally by J. B. Brunini and Jas. D. Thames, for appellant, and by R. M. Kelly and A. A. Chaney, for appellee.

OPINION

Griffith, J.

Appellee brought suit against appellants for damages for the wrongful death of the minor son of appellee, and in the trial recovered judgment in the sum of nine thousand dollars. The declaration is in two...