Craft v. Magnolia Stores Co.

• Decision Date: 14 December 1931
• Docket Number: 29655
• Citation: 161 Miss. 756,138 So. 405
• Court: Mississippi Supreme Court
• Parties: CRAFT v. MAGNOLIA STORES CO

138 So. 405

161 Miss. 756

CRAFT v. MAGNOLIA STORES CO

No. 29655

Supreme Court of Mississippi

December 14, 1931

Division A

1. MASTER AND SERVANT.

Where there was no conflict in evidence regarding employee's duties and no instruction from master on searching for stolen goods, whether employee acted within scope of employment when making slanderous statements while searching for stolen goods was law question for court.

2. MASTER AND SERVANT. Store manager held not acting in discharge of appointed duties or within scope of employment when making slanderous statements while assisting constable searching for goods stolen from store.

Evidence disclosed that employee making slanderous statements was manager of chain store, and that management of the corporation owning stores was under contract with detective bureau to protect its interests with reference to stolen merchandise, and that manager had no authority to institute suits or to make search for property believed to have been stolen. The contract between manager and employers disclose that manager was to sell goods, was to receive salary and bonus from certain profits arising from sale and that he was to account to employers for goods and for proceeds of sale and do such things as are generally done in a store.

3. MASTER AND SERVANT.

Master held not liable for slander by employee not uttered in course of appointed duties.

4. MASTER AND SERVANT.

Master's retention of employee with knowledge of his unauthorized tortious act did not render master liable.

HON. E M. LANE, Judge.

APPEAL from circuit court of Simpson county HON. E. M. LANE, Judge.

Action by Mrs. Annie Craft against the Magnolia Stores Company. From a judgment for defendant, plaintiff appeals. Affirmed.

Affirmed.

J. P. & A. K. Edwards, of Mendenhall, for appellant.

Responsibility is not limited to those acts which promote the objects of the employment. Expressions equivalent to "scope of employment" are line of duty, in the employer's service, course of the service, transaction of the employer's business, furtherance of the employer's interests, protection of employer's property, and the like. The general idea is that the employee at the time of doing the wrongful act, in order to fix liability on the employer must have been acting in behalf of the latter and not on his own account. But every departure by the servants from the strict course of his duty, even for a purpose of his own, will not in and of itself be such a departure from his master's business as will relieve the master of liability for the acts of the servant. The servant may at the same time be combining both his own and his master's business and in such case the master will be liable for his acts.

18 R. C. L., par. 254, p. 797.

This agent did not own the dress he was looking for. His mission was to reclaim the dress for his master. He used this means to accomplish that end. He was in the "employer's service."

Test is whether words were spoken by agent while in scope of employment and in actual duties of principal touching duties of his principal and in such cases it is unnecessary to show that slanderous words were spoken with defendant's knowledge or with its approval or that it ratified acts of agent.

Rivers v. Y. & M. V. R. R. Co., 43 So. 471; Doherty v. L. B. Price Mercantile Co., 95 So. 790.

The courts are generally agreed that an employer may be held accountable for the wrongful act of his employee although he had no knowledge thereof or disapproval of it or had even expressly forbidden it.

18 R. C. L., par. 255, p. 797; 18 R. C. L., par. 252, p. 793.

Ratification of the agent's wrongful and oppressive conduct by the principal may be shown by the fact that the servant is continued in the employment of the principal after notice of the commission of the willful wrong.

Pullman Co. v. Alexander, 78 So. 293; Southern Ry. Co. v. Garrett, 101 So. 348; Illinois R. R. Co. v. Green, 94 So. 793.

B. B. McClendon and R. P. Phillips, both of Jackson, and W. D. Hilton, of Mendenhall, for appellee.

If there be no conflict in the evidence, whether a servant whose wrongful act caused injury to a stranger was acting within the scope of his employment, is a question of law for the court; but if there be conflict, then the question is one of fact for the jury to decide.

Baramore v. Railway Co. (1904), 85 Miss. 426, 38 So. 210, 70 L. R. A. 627.

It is our contention that it is not within the scope of the employment of a local store manager, to institute criminal prosecutions against parties whom he has reason to believe are guilty of stealing merchandise from his employer's store, of which he is manager, or to go out seven miles away from the store with an officer of the law and make a search for missing goods and while so doing make slanderous accusations against the person suspected of stealing the goods. Especially is this true in the case at bar because the evidence shows that the Magnolia Stores Company had employed the National Detective Bureau to look after all such matters, and that John Harrison, its local manager, had no such authority.

Fisher v. Westmoreland, 101 Miss. 180, 57 So. 563; Natchez, C. & M. R. Co. v. Boyd, 141 Miss. 593, 107 So. 1; Martin Bros. v. Murphee et al., 132 Miss. 509, 96 So. 691.

The rule is well settled in this state that the master is not liable for the acts of the servant when done outside of the scope of his employment and not in furtherance of the master's business, unless such act be directed to be done by the master or ratified by him.

I. C. R. Co. v. Green, 130 Miss. 622, 94 So. 793; Southern Ry. Co. v. Garrett, 136 Miss. 219, 101 So. 348; Davis v. Price, 133 Miss. 236.

There was no ratification by the master.

Wells v. Robinson Bros. Motor Co., 153 Miss. 451, 121 So. 141; Law and Practice of Libel and Slander in a Civil Action, by Clement Catley (1924), 408-9.

Slander and Libel (4 Ed.), by M. L. Newell, in sec. 331 at page 368; in. Libel and Slander (5 Ed.), by Odgers at pages 585 and 586.

OPINION

McGowen, J.

The appellant, Mrs. Craft, sued the Magnolia Stores Company for damages, in one count alleging slander and in another alleging libel.

At the conclusion of the appellant's testimony in the court below the appellee, by separate motions, requested the court to direct a verdict for it on each count. The motion as to the second count charging libel was sustained. The motion as to the first count was then overruled. At the conclusion of all the testimony the appellee requested of the court a directed verdict for it on the first count charging slander, which was granted by the court.

No error is predicated here upon the action of the court as to the second count in excluding the evidence as to libel, and the only complaint here is that the case should have been submitted to the jury as to whether or not the agent, Harrison, of the Magnolia Stores Company, was acting within the scope of his employment at the time he made the statements attributed to him by the witnesses for the appellant.

The facts are these: On May 24, 1930, Mrs. Annie Craft went into appellee's store at Magee, Mississippi, to purchase a dress. The manager thereof was John Harrison, who was employed by appellee. Mrs. Craft was accompanied by Myrtle Craft, and she looked at dresses shown her by Harrison and other clerks, but declined to purchase, and left the store with her baby in her arms, and carried nothing therefrom. This was on Saturday afternoon. On Monday morning, Harrison on checking up, found that a certain black dress had not been sold and was missing from the store. After discussion with all the clerks, who were women, he left the store and went to the home of a justice of the peace several miles from Magee and there made an affidavit for a search warrant charging that a black dress owned by him, Harrison, had been stolen, and charged Mrs. Annie Craft with the larceny thereof, and procured a search warrant. He thereupon accompanied the constable to the home of the father-in-law of Mrs. Craft, stating his mission to him. The father-in-law testified that Harrison told him Mrs. Craft stole a dress and he could prove it. Thereupon the...