Canton Cotton Warehouse Company v. Pool

• Decision Date: 29 October 1900
• Citation: Canton Cotton Warehouse Company v. Pool, 28 So. 823, 78 Miss. 147 (Miss. 1900)
• Court: Mississippi Supreme Court
• Parties: CANTON COTTON WAREHOUSE COMPANY v. SIMON A. POOL

28 So. 823

78 Miss. 147

CANTON COTTON WAREHOUSE COMPANY v. SIMON A. POOL

Supreme Court of Mississippi

October 29, 1900

October 1900

FROM the circuit court of Madison county HON. ROBERT POWELL Judge.

Pool the appellee, was the plaintiff, and the Canton Cotton Warehouse Co., the appellant, was the defendant in the court below. The action was for personal injuries received by the plaintiff, resulting from jumping out of a house because of his having been frightened by the defendant's servants. The defendant was engaged in manufacturing ice. Its plant was being operated at night, lighted with electricity. The plaintiff, a country boy, with two companions, also rural youths, were wandering over the town of Canton, seeing the sights, when they met an old acquaintance, then employed by defendant as night watchman. This acquaintance, after relating some marvelous effects that had been wrought some time before by the explosion of a boiler in the ice plant invited his rural friends to go through the plant for the purpose of seeing the operation of ice making. The invitation was accepted. The plaintiff's subsequent experiences were related by him on the witness stand as follows:

"On the night of February 4, Jim Vinson and Kernop and myself were walking around the town. It was suggested by Mr. Vinson that we go down to the depot; that Mr. Alex. Kaiser was keeping a little eating stand there, and Jim being well acquainted with him, he said he would go down there and talk with him for awhile. We went down there, and some of us were talking with him and some of us were standing on the outside and we met up with Mr. W. H. Parker. He is the night watchman for the Canton Cotton Warehouse Company, and we talked with him for awhile, and he sorter deviled us about going across the railroad. He said we had better mind how we would go across there. He looked at his watch a time or two, and said it was about time he had to go and make his rounds; that he had to punch his clocks. He was the night watchman. He said, 'If you boys are not going across the railroad, you had just as well walk around with me, ' and he punched a clock or two there in the cotton yard, and he went up there back of the premises, in the alley, and punched about two clocks in there, I think. He said, 'If you all want to, you can go up to the icehouse and look at the machinery, ' and so we went up there with him, and he punched a clock there at the west side. It is where the door there leads into the far room. The door there opens on the ground. He punched the clock and opened the door and told us to walk in, and, as we walked in, there was a young Mr. Rucker there reading, and there was a negro man in the fireroom with him. As we walked into the engineroom there, Mr. Campbell was there, working on some machinery. It was Will Campbell, and we walked around there and looked at the machinery. There was Sims Bilbo and Jim Fitchett. That was all the white boys that was in there. We walked in there, and about the time we got ready to go I was about ten feet from the door leading out from the east side, and Mr. Vinson was about the middle of the building, and Mr. Kernop was between me and Vinson, and all at once the lights went out and it was dark as it could be. It seemed like they had thrown down 10, 000 pounds on an iron roof, and the steam was escaping there like it was going all to pieces. I shot out of the door. I knew that it had blown up before that. I thought I was risking my life and I thought that I would be killed. I think, gentlemen of the jury, that any man would have run if he had been in my place. I thought that half of one of those engines was going to slam through me, and I fell out of the door. When I plunged out there I fell on my head and struck a rail--that is, an iron rail struck me right there. I don't know how I hit, but my jaws went up that way. There is a place there that the doctor told me would get all right, but it has never done it. He looked at it the other day and said it was out of shape yet. It knocked out this tooth and this tooth up here, and this tooth back in here was shattered up. They were all loosened up, and this jaw was jarred in there, and i could not straighten my head for about two weeks. I cut my tongue on the top there, about middle ways, nearly to the edge, and I could not use my tongue and I had it sewed up. My jaw was hurt so I could not get it open any further than this, and my tongue was hanging out bleeding, and I could not do anything with it until Dr. Coleman sewed it up. It was a pretty bad place. I felt that I had bit my tongue off. My teeth were all knocked out and i was in bad shape. I have been slightly ruptured in my life, but since then I have been bothered time and again."

The evidence showed that the defendant's employes were playing a practical joke upon the plaintiff, and made use of its appliances to alarm him.

The verdict and judgment in the court below was in plaintiff's favor for $ 1, 000, and defendant appealed to the supreme court.

Reversed and remanded.

W. H. Powell, for appellant.

If the appellee suffered damage by the acts of appellant's servants, appellant is not liable, because such servants were acting at the time beyond the scops of their authority and out of the line of their duty, and had quit for the moment their master's business. New Orleans, etc., R. R. Co. v. Harrison, 48 Miss. 112; Louisville, etc., Ry. Co. v. Douglass, 69 Miss. 723. The very sound doctrine announced in Richberger v. American Express Co., 73 Miss. 161, is not in conflict with our contention, and is not authority against us upon the facts of this case. "The test of the master's responsibility is not the motive of the servant, but whether that which he did was something that his employment contemplated and something which, if he should do it lawfully, he might do in the employer's name. If the servant, wholly for a purpose of his own, disregarding the object for which he is employed, and not intending by his act to execute it, does an injury to another not within the scope of his employment, the master is not liable." Cooley on Torts (2d ed.), 629. The proof shows to a certainty that the employes were not acting within the scope of their employment or about their master's business, or in the line of their duty to appellant. They were inferior and subordinate employes, with specific instructions to follow, and one of these instructions was not to play tricks on any one. 14 Am. & Eng. Enc. L. (1st ed.), 809, sec. 5; Ib., 818; Chicago, etc., R. R. Co. v. Epperson, 26 E. B. Smith (Ill. App. ), 79; Rounds v. Delaware, etc., Ry. Co., 64 N.Y. 129; 16 Am. & Eng. Enc. L. (1st ed.), 428, and note 1, on pp. 429, 430; Meyer v. King, 72 Miss. 1; Capital City Oil Works v. Black, 70 Miss. 8; Sneed v. Moorehead, 70 Miss. 690; 14 Am. & Eng. Enc. L. (1st ed.), 861.

A. K. Foot, on same side.

Is a man responsible for a wilful tortious act of the servant, committed during the existence of the servant's employment, but not in the furtherance of the master's business, not in the scope of the servant's employment, but for a purpose entirely foreign? Mechem on Agency, secs. 740, 741; Wood on Master and Servant, sec. 299 et seq.; Shearman & Redf. on Neg., sec. 150. Does the fact that the injury was caused by the wrongful manipulation of the machinery of the defendant by the employe, when that employe was employed to make ice with it, and he uses it for another purpose of his own, place any liability on the defendant? The cases are all uniform in holding that he is not, except in cases where the defendant owes the plaintiff a special duty, as in the case of a common carrier to its passengers. Poole, at the most, was a mere licensee, and the defendant owed him no special duty. Davis v. Houghtelin (Neb.), 14 L.R.A. 737; McCoy v. McKowen, 26 Miss. 487; Stephenson v. Southern Pacific Co. (Cal.), 27 Am. St. Rep., 223; Howe v. Newmarch (Mass.), 12 Allen, 49; Richmond Turnpike Co. v. Vanderbilt, 1 Hill (N. Y.), 480; Manns v. Crickett, 1 East., 106; Mott v. Consumers' Ice Co., 73 N.Y. 547; Farber v. Missouri Pacific Ry. Co., 32 Mo. App., 378.

The cases are uniform in holding that the gist of the master's liability is "whether the act that caused the injury was done within the scope of the servant's authority, with the furtherance of the master's interests in view, " not whether it was malicious or wilful, or accomplished by the wrongful use of the master's machinery or tools.

Mayes & Harris, on same side.

In order that the doctrine respondeat superior may apply, it is elementary that three things are necessary:

1. The injury complained of must have been inflicted by an employe of the defendant.

2. The employe in inflicting such injury must have been acting within the apparent scope, at least, of his employment.

3. Even where the employe who inflicts the injury is acting within the apparent scope of his employment, his act must be done in furtherance of his master's business and for the accomplishment of the purpose for which he is employed. International, etc., Co. v. Anderson, 82 Texas, 516; Hudson v. Missouri, etc., Co., 16 Kansas, 470; Eckert v. St. Louis, etc., Co., 2 Mo. App., 36; Little Miami, etc., Co. v. Wetmore, 19 Ohio State, 110; Lakin v. Oregon, etc., Co., 15 Oregon, 220; Wyllie v. Palmer, 137 N.Y. 248; Snyder v. Hannibal, etc., Co., 60 Mo. 413; Rudgeair v. Reading Co., 180 Pa., 333; Mott v. Ice Co., 73 N.Y. 543. This rule has been fully recognized by this court and applied. Railway Company v. Douglass, 69 Miss. 723; Butler v. Oxford, 69 Miss. 618.

The rule is in no way in conflict with that line of authority which holds a railway company responsible for practical jokes of a mischievous and injurious nature committed upon its...