G., M. & N. R. Co. v. Willis
| Decision Date | 14 January 1935 |
| Docket Number | 31458 |
| Citation | 157 So. 899,171 Miss. 732,158 So. 551 |
| Parties | G., M. & N. R. Co. v. WILLIS |
| Court | Mississippi Supreme Court |
December 3, 1934
APPEAL from the circuit court of Jones county HON. W. J. PACK Judge.
Action by Loverett Willis, by his next friend, against the G., M. & N. Railroad Company. Judgment for plaintiff, and defendant appeals. Affirmed.
On suggestion of error. Suggestion of error overruled.
For former opinion, see 157 So. 899.
Affirmed. Suggestion of error overruled.
Welch & Cooper, of Laurel, for appellant.
The appellee and his companion, Grady Kidd, say that he was doing nothing at the time of the assault. Appellants offered proof that the appellee was scratching the side of a passenger coach with a nail or some other object.
The rules of law of all civilized communities recognize the natural right of individuals to acquire and own property, and as an incident to such right to protect the property against the trespass of other individuals.
2 R. C. L., p. 555; Hairston v. State, 54 Miss. 689.
Lovern's authority or whether his act was within the scope of his employment was for the jury.
Appellee offered Dr. Harbour as a witness to the extent of the injury, the type and character of injury, and the prognosis. Objection was made on the ground that the privilege between physician and patient existed. This objection was sustained. The witness is a dentist.
The statute says "physician or surgeon."
Goodman v. Lang, 130 So. 50, 158 Miss. 204; Kress Company v. Sharp, 126 So. 650, 156 Miss. 693; People v. De France, 104 Mich. 563, 62 N.W. 709.
A dentist is not a person duly authorized to practice physic or surgery within a statute relating to privileged communications.
Howe v. Regensburg, 75 Misc. 132, 132 N.Y.S. 837; Missouri v. Fisher, 119 Mo. 344, 24 S.W. 167, 22 L. R. A. 799; William Laurie Co. v. McCullough, 174 Ind. 477, 90 N.E. 1014; Section 4295, Code of 1930; Chapters 104 and 148, Code of 1930; Hayden v. State, 81 Miss. 291, 33 So. 653; Kress Co. v. Sharp, 126 So. 650, 156 Miss. 693.
The exclusion of Dr. Harbour as a witness was erroneous.
This court in Martin v. Minor, 50 Miss. 42, announced the rule that evidence of provocation should be admitted in extenuation or in mitigation of the damages.
Alabama & V. Ry. Co. v. Harz, 42 So. 201, 88 Miss. 681.
One of the several elements which enter into the liability of a master for a tort committed by one procured by his servant to assist him in the performance of the master's work is that the act complained of must have been committed within the course of the servant's employment and in furtherance of the master's business.
39 C. J. 1271; Natchez, C. & M. R. Co. v. Boyd, 107 So. 1, 141 Miss. 593; Davis v. Price, 97 So. 557, 133 Miss. 236.
A master clearly cannot be held responsible for a tort committed in furtherance of his business, unless it is shown to have also been committed in the course of the appointed duties of the tort-feasor.
6 Labatt's Master & Servant (2. Ed.), p. 6704; Wells v. Robinson Motor Co., 153 Miss. 451, 121 So. 141; Fisher v. Westmoreland, 101 Miss. 181, 57 So. 563; Craft v. Magnolia Stores, 138 So. 405, 161 Miss. 756; Canton Cotton Warehouse Co. v. Pool, 78 Miss. 147, 28 So. 823; Illinois Central R. Co. v. Green, 94 So. 793, 130 Miss. 622.
F. B. Collins, of Laurel, for appellee.
Appellee and his witnesses testified that the only thing appellee had done at the time he was assaulted by appellant, John Lovern, was that he obeyed the request of the porter to assist two negro women passengers from one train to the other, and that when he had assisted them from one train to the other, as requested by the said negro porter, and gotten off the train, that the defendant, John Lovern, walked up behind him and kicked him, and struck him in the mouth with his fist. He thus made out a prima facie case on civil liability upon assault and battery upon him.
Jamison v. Mosley, 10 So. 584; Lizana v. Lang, 43 So. 476.
The lower court was justified in directing the jury on the question of liability to find a verdict for the appellee, because this is not a legal justification or excuse for an assault under the circumstances.
John Lovern had general supervision over the movement of appellant's trains at said time, and as such general supervisor, was acting within the scope of his authority and in and about the business of appellant.
Statutes making communications between physicians and patients privileged are of course intended to inspire confidence in the patient and encourage him in making a full disclosure to the physician as to his symptoms and condition, by preventing physicians from making known to the curious the ailments of their patients, particularly when afflicted with diseases which might bring reproach, criticism, unfriendly comment, or disgrace upon the patient, if known to exist. The view is sometimes taken that such statutes, being remedial, should receive a liberal interpretation and not be restricted by any technical rule.
28 R. C. L., p. 532, sec. 121; People v. Bloom, 193 N.Y. 1, 85 N.E. 824, 127 A. S. R. 931, 18 L. R. A. (N. S.) 898; Gartside v. Conn. M. L. I. Co., 76 Mo. 446, 43 Am. Rep. 765; 17 A. S. R. 567.
The appellee, Loverett Willis, was plaintiff in the court below, and filed a suit against the appellant for damages for a personal assault committed upon him by the trainmaster of said railroad company.
The case for the plaintiff was that he had been asked by one of the colored porters of the G., M. & N. Railroad Company to assist some women in transferring their baggage from one train to another at Union, Mississippi, where the two trains met; that he carried the baggage from one train to another, and, as he was coming off of the train, the trainmaster ran up and kicked him and told him to stay off that train, and, when the plaintiff turned to look and see who it was that kicked him, the trainmaster struck him in the mouth, inflicting an injury, and breaking one of his teeth; that the plaintiff suffered from this injury, which caused inflammation resulting from pus forming in and around the broken tooth; and that he was physically injured.
The appellant contended that the appellee was standing by the train as it started to roll out going north from Mobile, Alabama, to Jackson, Tennessee, and was scratching said train with some instrument, and the trainmaster "hollered" at him to desist; that appellee paid no attention, and the trainmaster kicked at him but did not strike him, and the plaintiff squared himself and looked like he was going to strike the trainmaster, who then struck the appellee in the mouth; that the appellee then turned and went up town. The appellant railroad company also denied that the trainmaster was acting within the scope of his duties.
There was considerable conflict between the evidence for the appellee and the appellant, but the jury found for the appellee in the sum of seven hundred fifty dollars.
The appellee testified that he consulted a dentist in Union, Mississippi, and was treated by him. The appellant sought to introduce this dentist, whereupon objection was made by the appellee which was sustained by the court. The statement made by the attorney for the appellant, defendant in the court below, as to what he expected to prove by this dentist, is as follows:
By the Court. The statute doesn't mention a dentist, does it?
We think the proof was sufficient to sustain the verdict for liability. The trainmaster admits striking the appellee and kicking at him, giving as a reason therefor that the appellee was doing some injury to the train, and, when called on to desist, refused to do so. The fact testified to by the trainmaster does not justify the infliction of an...
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