Fisher v. Westmoreland
| Decision Date | 18 December 1911 |
| Docket Number | 15383 |
| Citation | 101 Miss. 180,57 So. 563 |
| Court | Mississippi Supreme Court |
| Parties | WALTER S. FISHER v. J. T. WESTMORELAND |
October, 1911
APPEAL from the circuit court of Noxubee county, HON. T. B. CARROLL Judge.
Suit by J. T. Westmoreland against Walter S. Fisher et al. From a judgment for plaintiff defendant appeals.
The appellee was running a sawmill. He broke his circular saw and, being in a hurry to get out a bill of lumber, he sent a negro in his employ to an old, abandoned mill in the neighborhood, which he knew was for sale, and which belonged to Walter S. Fisher, and instructed him to get a saw, and bring it to appellee's mill, and see if they could use it. The negro brought the saw, and appellee tried to fit it on his mill, but found he could not use it, and directed the negro to take it back to Fisher's mill. The negro carried it to his own house, where it remained for several days. Fisher lived in another county. In the meantime Fisher's agent, T. W. Crigler, who had been for some time trying to sell the mill, made inquiry about the missing saw, and was informed that Westmoreland had taken it to his mill. While Westmoreland was endeavoring to attach it to his mill, he broke a part called the "mandrel." Upon ascertaining the whereabouts of the saw, Crigler went to the appellee, and told him that Fisher would be mad about it, as he was endeavoring to sell the mill, and advised appellee to go to West Point and see Fisher about it. Appellee did so and explained the circumstances to Fisher, who then proposed to sell him the machinery for a price which Westmoreland thought too high. Fisher then told appellee that he would write him later.
Thereafter Fisher wrote his agent, Crigler, at Macon, Miss., the following letter: Thereafter Crigler swore out an affidavit against the negro and Westmoreland, charging them with grand larceny. The case was dismissed by the court after hearing the statements of the defendants. Westmoreland then brought suit against Fisher and Crigler for malicious prosecution, which resulted in a judgment against both defendants jointly for the sum of five hundred dollars, from which each defendant prosecutes a separate appeal.
The declaration contains the following language: "The said affidavit was made by the said Crigler as the agent for and at the instance and request and upon the direction of the defendant Fisher; both the said Crigler and the said Fisher knowing full well at the time same was made and directed to be made that the said charge was not true that plaintiff had committed the crime of larceny or any other crime with respect to the said Fisher's property; but the affidavit was made by the said Crigler for the said Fisher upon his (the said Fisher's) request and direction, and as the agent of the said Fisher, without probable cause and with malice," etc.
Reversed and remanded.
Gates T. Ivy and A. F. Fox, for appellant.
It is contended that, in as much as Crigler was the agent of Fisher and charged with the superintendence and care of the property involved, the authority to prosecute for stealing the property, in some way, inhered in, and grew out of this general authority to take care of the property, and was incident thereto; in other words was in the scope of this general authority.
This contention might well be met by the fact, as conclusively shown by the evidence, that Crigler did not make the affidavit for larceny under his general authority as such caretaker. He never would have acted at all in the prosecution if he had not received the letter. The contention of counsel might also be met by the mere statement this is not the case made by plaintiff's declaration. The declaration does not allege that Crigler made the affidavit against Westmoreland under his general authority as caretaker of the property, and acting within the scope of that authority. On the contrary, it distinctly alleges that the affidavit was made by Crigler "at the instance and request and upon the direction of Fisher."
But for the sake of argument, let us meet counsel upon their own ground, and see to what conclusion the law and the facts will lead us.
The facts of the case are that Fisher was the owner of an unused sawmill several miles from the city of Macon where Westmoreland resided and where he operated a mill of his own. The saw at Westmoreland's mill having been injured, Westmoreland sent the negro, Duran, with a team out to Fisher's mill, which was not in operation, with instructions to take the saw and bring it home, which the negro did, and broke the mandrel, in taking the saw off. This was about the 1st of May, according to the testimony. The affidavit for larceny was made against Westmoreland and the negro on the 27th of June, six or seven weeks afterward. Crigler also lived in the city of Macon and was employed as salesman by the Fisher Company, of which Fisher was president. This company was a mercantile concern at West Point. The Fisher and other creditors had purchased bankrupt stock of goods at the mill, and Crigler was made trustee. After this was mostly sold out, Fisher bought the old mill, and Crigler who visited the mill two or three times a month was directed by Fisher to look after the mill property. This was the whole extent of his authority as agent. Some weeks after the saw was taken, Crigler missed it and instituted an investigation, and after two weeks search, from that time it was in possession of Westmoreland and was at his mill in Macon. Instead of having Westmoreland arrested, the idea not occurring to him that it was his duty or that he was authorized to do it, he reported it to Fisher and saw Westmoreland and as a friend, advised him to go to see Fisher about it. He never acted in the premises any further until he received Fisher's letter, when he took steps to have the negro alone arrested, and on consulting an attorney and the justice of the peace included Westmoreland in the affidavit, not on the authority of the Fisher, but solely on his own responsibility under the advice of his lawyer. This is the whole story. What is the law?
A well considered case is Markely v. Snow, 207 Pa. S.C. , 64 L. R. A. 685. This is a case, where an action for malicious prosecution was instituted against a partnership engaged in selling and mining coal. The plaintiff was arrested for burning defendant's barn, at the instance of defendants superintendent who had the care and management of the property. The plaintiff was arrested three months after the barn was burned. The question was whether the arrest, was an act within the implied power of the superintendent, done in the course of his employment. The court say:
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