Alabama & V. Ry. Co. v. Harz

• Decision Date: 19 November 1906
• Citation: 42 So. 201,88 Miss. 681
• Parties: ALABAMA & VICKSBURG RAILWAY COMPANY ET AL. v. JOSEPH HARZ
• Court: Mississippi Supreme Court

42 So. 201

88 Miss. 681

ALABAMA & VICKSBURG RAILWAY COMPANY ET AL. v. JOSEPH HARZ

Supreme Court of Mississippi

November 19, 1906

FROM the circuit court of Warren county, HON. JOHN N. BUSH, Judge.

Harz the appellee, was plaintiff in the court below; the railway company and Moncure Dabney, appellants, were defendants there. The action was trespass for an assault and battery committed by Dabney, who was the chief clerk of the railway company's superintendent, upon plaintiff. From a judgment for $ 1,000 in plaintiff's favor against both defendants they appealed to the supreme court.

Harz was a stenographer and clerk in the office of the superintendent of the Alabama & Vicksburg Railway, and Dabney was chief clerk in the same office. A small sum of money had been collected from a passenger for damage to a window, and when it reached the superintendent's office, Dabney, in the course of his duties, dictated a letter to Harz as stenographer, to the company's treasurer, stating that he was remitting the money. The treasurer replied that he did not receive the money. Dabney then told Harz that he had delivered it to him at the time he dictated the letter. Harz denied ever having received the money. Dabney then called upon Harz as stenographer to take down a letter to the treasurer to the effect that he had delivered the money to his stenographer. When this point in the letter was reached Harz refused to write, giving as his reason that such was not the fact. After some words had passed, Dabney told him that he would either write the letter or be discharged. Harz refused to write, and Dabney, after seeing the superintendent, ordered him discharged. Three days later Dabney met Harz on the depot platform of the railway company and assaulted and struck him. Harz brought suit against the railway company and Dabney, alleging in his declaration that the assault was unwarranted and without provocation, and committed by an employe of the railway company while about his master's business. On the trial the court permitted evidence to be introduced as to the dispute between Harz and Dabney, and of the discharge of the plaintiff on that account. Witnesses testified to the language used in the dispute by Harz, which Dabney claimed to be insulting and the provocation for the assault. The court at first refused to permit Dabney to testify whether he was acting for himself or for the company in committing the assault, but afterwards permitted him to testify on this point, and in answer to the question he stated that he "was acting on his own personal account." The defendant attempted to show by a witness that he had seen Dabney give Harz the money, but this proffered testimony was excluded as being immaterial to the issue.

Judgment affirmed.

McWillie & Thompson, for appellants.

This court has laid down the law applicable to the case in an able and elaborate opinion. Richberger v. Express Co., 73 Miss. 169 (s.c., 18 So. 922).

The assault made by Dabney was not in his master's business, being wholly separated in time and by the attendant circumstances from the business he had with Harz about the company's little affair. Mr. Dabney was not employed to beat people and drive them away from the depot.

The verdict was against both the company and Dabney for $ 1,000, and on the motion for a new trial should have been set aside as contrary to both the law and the evidence, so far as the company was concerned, on the ground of non-liability, and so far as Dabney was concerned for excess in amount.

Dabney was asked on direct examination whether he was acting for himself or for the company when he struck the plaintiff. On plaintiff's objection the court, refused to allow him to answer the question. The question went to intent on his part, it is true, and there are some cases holding that testimony as to one's intent is inadmissible, but there is much authority to the contrary, and an able text writer on evidence makes the matter too plain for doubt. 1 Wigmore on Evidence, sec. 581.

The defendants sought to prove by Mr. Day, one of the clerks in the Vicksburg office, that he saw Mr. Dabney hand the money to Harz, but, on objection of plaintiff, the court refused to allow the witness to testify. This was clearly erroneous. While it had no bearing on the question of the liability, it certainly was admissible in mitigation of damages, for it went strongly to show that Harz had falsely and brazenly persisted in denying the truth of Dabney's statement and impeaching his integrity--conduct well calculated to incense him. Even if liability be admitted, the verdict is excessive, and might have been much less had the jury heard the testimony of Day. The company was equally interested in having the damages mitigated, for the plaintiff was not entitled in a suit against both master and servant to recover against the master any greater amount of damages than it was entitled to recover against the servant whose acts constituted the sole ground of complaint.

The characterization of Dabney's statement as a lie was provocation for an assault. In Mississippi "it is regarded as the first lick," and the whole evidence shows that it was a sense of this indignity that led Dabney to make the assault.

If the party claims damages not merely for the naked assault, but for his wounded...