Davis v. Price

• Citation: 133 Miss. 236,97 So. 557
• Decision Date: 22 October 1923
• Docket Number: 23448
• Court: United States State Supreme Court of Mississippi
• Parties: DAVIS v. PRICE

97 So. 557

133 Miss. 236

DAVIS v. PRICE

No. 23448

Supreme Court of Mississippi

October 22, 1923

Division A

(Division A.) January 1, 1920

LASTER AND SERVANT. Master not responsible for servant's tort outside scope of duties.

A master is not responsible for a tort committed by his servant while acting in furtherance of the master's business unless the servant was also then acting within the scope of his appointed duties.

HON. S F. DAVIS, Judge.

APPEAL from circuit court of Washington county, HON. S. F. DAVIS Judge.

Action by H. E. Price against E. D. Davis. From a judgment for plaintiff, defendant appeals. Reversed, and judgment rendered.

Judgment reversed.

Boddie & Farish, for appellant.

The peremptory instruction asked by the appellant, defendant in the court below, should have been given. If this court affirms this case we respectfully submit that an employer has no way on earth of protecting himself against the unauthorized acts of any of his employees where the employee is attending to some business of his employers, no matter how far he may be acting outside of the scope of his employment. Brown v. Jarvie Engineering Company, 32 L. R. A. 605; Valley v. Clay, 92 So. 308; Illinois Central R. Co. v. Green, 94 So. 793. The evidence fails to warrant a recovery for the following obvious reasons, namely: Crane had no authority, and was acting beyond the scope of his employment to leave the ice cream factory to go and borrow a truck and attempt to deliver ice cream at the railroad station.

Teat & Potter and Eugene Bogen, for appellant in response to questions propounded by the court.

The two questions are: (1) What is the rule governing the liability of the master for a tort committed by his servant when acting beyond the scope of his normal duties because of an emergency which necessitated his so doing? (2) If there is such a rule of liability, is this case within it?

Under section 2227-A, Labatt's Master & Servant, the textwriten under the caption of "Scope of Authority Considered with Reference to the Circumstance that the Wrongful Act Was Done in an Emergency,' lays down two propositions upon which liability may be considered, to-wit: (1) "It may be adduced with reference to a contention that the emergency in question was one of a kind that might be expected to occur more or less frequently in the course of the servant's employment, and that he might consequently be regarded as having been invested with an implied authority to deal with such emergencies in a certain manner whenever they should occur. The point of view is illustrated by several cases involving the liability of employers for conversion and for wrongful arrests. (2) "It may be relied upon as the basis of an argument that, under the given circumstances, the servant was justified in doing something which was beyond the scope of his normal powers."

The facts in the case at bar do not permit of the application of the first proposition, or hypothesis, stated by Mr. Labatt. The second proposition comes nearer of application in principle, than the first.

The word "emergency," however, must be understood to denote a condition of such serious import as to compel the servant to do an act in relief of humanity, or of something of similar character. Madars v. Shamokin, 192 Pa. 542. A very great distinction between this case and the case at bar is that to deliver the cream was a mere incident, and of no more than casual import. It certainly cannot be said that a delivery of a can of ice cream to a customer would come within the rule spoken of as "emergency." See also Ephland v. Missouri, P. R. Co., 137 Mo. 187, 35 L. R. A. 107; Martin Bros. v. Murphree, 96 So. 691.

The universal rule as laid down by the textwriters and oft repeated by numerous decisions is concisely stated in 18 R. C. L. 796, to-wit: "The law also recognizes that the servant is still an independent and responsible being, with capacity, which the master cannot efface or control, to engage in projects of his own, and does not include in the responsibility laid upon the master liability for those acts of the servant which are but the exercise of his freedom about his own affairs." The confusion that arises in this case is from the fact that after he had abandoned the scope of his employment he then engaged in a service for Davis, that is, he got the ice cream of Davis and undertook to deliver it to a customer of Davis. Now was Crane the servant of Davis in so doing, or was he a stranger and trespasser in law in so doing? He had no right or authority to borrow the truck, either express or implied, and no right or authority to lay his hands on the ice cream for the purpose of loading it on the truck, either express or implied, nor did he have any right or authority to attempt to haul it to the station. It was the will of his master that he be present and supervise, control and manage the ice cream machinery. But he had taken a position antagonistic to his master. And although he may have thought that he was doing a service or kindness to his master or some one else, yet this proceeded from the independent agency of Crane and not from the implied or express authority of his master, Davis. This much might be said of the fireman in the case of Illinois Central Railroad Company v. Green, 94 So. 793, that the fireman may have thought that he was doing something for his master when he went back to evict Green, a trespasser, and shot him, but in truth and fact that was a voluntary project of his own, not by authority of his master, express or implied, and for which the fireman alone was responsible and not his master. See also Fairchild v. New Orleans & Northeastern Railroad Co., 60 Miss. 931. Our answer to the interrogatory of the court, therefore, is that the duties of Crane were limited to the manufacture of the ice cream.

ACTS OF A SERVANT IN A SEPARATE DEPARTMENT OF THE MASTER'S BUSINESS. It is the contention of the appellee in this case that from the single circumstance that Crane was delivering the products of the plant to a customer at the time the injury occurred, that this establishes first, the relation of master and servant, and second, fixes a new scope of employment. This is a mere delusion and shadow. See Slater v. Adv. Thresher Company, 97 Minn. 305, 107 N.W. 133; Palos Coal & Coke Co. v. Benson, 39 So. (Ala.), 727; Southern Railway Company v. Power Fuel Company, 152 F. 917. The above cases are decisive of the question propounded by the court. The servant may use the property or instructions of his master in the commission of a tort, but before damages can be fastened upon his master, it must be affirmatively shown that he is acting for his master, engaged in the scope of his employment.

Walton Shields, for appellee.

Under this state of facts, the peremptory instruction was correctly refused. Surely Crane had the implied authority to do what he did do even though he was not expressly authorized to do so and even though he had general...