Gill v. L. N. Dantzler Lumber Co.

• Decision Date: 18 March 1929
• Docket Number: 27791
• Court: Mississippi Supreme Court
• Parties: GILL v. L. N. DANTZLER LUMBER CO. [*]

121 So. 153

153 Miss. 559

GILL v. L. N. DANTZLER LUMBER CO. ^[*]

No. 27791

Supreme Court of Mississippi

March 18, 1929

Division B

1. PLEADING. Where order permitting oral amendment of declaration was not entered on minutes of court, declaration remained as originally written.

Where motion for permission to amend declaration was not written out and order permitting amendment was not entered on minutes of court, declaration remained as it was originally written.

2. ASSAULT AND BATTERY. Where declaration charged assault only evidence regarding battery held improperly admitted, where ineffectual oral amendment was made during trial.

Where declaration charged assault only, evidence of battery held improperly admitted, where plaintiff orally amended declaration during trial so as to charge battery, but order permitting amendment was not entered on minutes of court and declaration remained as it was originally written.

3. ASSAULT AND BATTERY. "Assault" is attempt to hurt with power to hurt, while "battery" is where hurt is done pursuant to assault.

An "assault" is simply an attempt to hurt with power to hurt, while "battery" is where hurt is done pursuant to assault.

4. ASSAULT AND BATTERY. Defendant could not be held liable for battery, where only assault was charged in declaration.

Defendant could not be held liable for damages for battery, where only assault was charged in declaration.

5. APPEAL AND ERROR. Where it was impossible to determine effect of inadmissible testimony and apportion result, supreme court could not restore original verdict and judgment where trial court set aside verdict.

Where it was impossible to determine effect of inadmissible testimony and apportion, result, supreme court was without rightful power to restore original verdict and judgment where trial court set aside verdict.

6. MASTER AND SERVANT. Superintendent of farm committing assault, while ejecting plaintiff and family from house on farm, was acting within general scope of employment.

Superintendent of defendant's farm, committing assault on plaintiff while ejecting him and family from house on farm, was acting within general scope of his duty and employment.

7. MASTER AND SERVANT. Master is responsible when servant goes beyond strict line of duty and authority and inflicts unjustifiable injury upon another.

Master who puts servant in place of trust or responsibility or commits to him management of his business or care of his property is responsible, when servant through lack of judgment or discretion, or from infirmity of temper or under influence or passion aroused by circumstances and occasion, goes beyond strict line of his duty and authority and inflicts an unjustifiable injury upon another.

HON. W A. WHITE, Judge.

APPEAL from circuit court of Harrison county, HON. W. A. WHITE Judge.

Action by Irvin Gill against the L. N. Dantzler Lumber Company. From a judgment for defendant, plaintiff appeals. Reversed and remanded.

Reversed and remanded.

L. W. Maples and Gex & Russell, for appellant.

It is well settled in Mississippi that when one has received a fair and impartial trial, and the verdict is set aside, by the trial court, and another trial granted, if a proper bill of exceptions is obtained, which brings for review the entire record in the first trial, and the court finds that the verdict in the first trial should be sustained, then it will proceed no further than to enter a judgment according to the findings of the jury, at the first trial. See Demond v. Fine, 111 Miss. 737; Ennis v. Y. & M. V. R. R. Co., 118 Miss. 509.

Blackwell was in full charge of the premises, the farm department, houses, etc. He was the lord and master there, acting for the L. N. Dantzler Lumber Company. He was the superintendent in charge and this corporation in reference to that farm and those houses, acted through him. He placed appellant in possession of this house, and after the plaintiff had taken possession thereof, again as agent of the L. N. Dantzler Lumber Company, appellee, herein, he undertook to dispossess said appellant. We submit that under those facts, since it was his duty to look after those houses, and the entire farm, since it was his duty to move people out of the houses, that he was acting squarely within the scope of his authority. Cotton Oil Co. v. Crowley, 121 Miss. 262; Walters v. Stonewall Cotton Mills, 136 Miss. 361; Richberger v. Express Co., 73 Miss. 161; Clark v. Service Auto Co., 144 Miss. 194, 108 So. 704.

Ford, White, Graham & Gautier, for appellee.

An amendment cannot be made by a motion ora tenus, after the pleadings are settled and the case actually on trial. It is settled in this state that no amendments to pleadings can be made after the pleadings are settled except by motion in writing and an order of the court entered in the minutes permitting the amendment. Oliver v. Miles, 144 Miss. 852; Lacy v. Railway Co., 102 Miss. 339; Pigford v. House, 115 So. 774.

It is easy to state the rule that a master is liable for negligent acts of his servants while acting within the scope or line of his employment and in the furtherance of the master's business; it is not always so easy to determine whether a given state of facts comes within the rule; we find no fault with the statement of the rule in the three cases of this court cited by counsel on this proposition; but the facts of each case widely differ and in neither do the facts approach similarity to the facts in the case at bar; it was Blackwell's duty in the present case to employ labor, with the approval of Howell, to plant seed, cultivate the farm and harvest the crop, and oversee the other laborers, all in furtherance of his master's business; it certainly cannot be contended that the act of Blackwell in permitting plaintiff to move into defendant's house without the payment of rent or any agreement to pay rent would in any way further the master's business of farming; it is not clear that this permission of Blackwell's was purely an act of kindness on his part and the master was in no way benefited thereby? The fact that Blackwell never reported to Howell or any other superior would indicate that he considered the transaction, as it really was, a private matter between him and the plaintiff. So far as the master is concerned, the plaintiff was a trespasser on its property; the house was not built to rent but solely for the use of defendant's employees on the farm; plaintiff was in the house merely by the unauthorized act of Blackwell. But regardless of the status of the plaintiff, whether he was a trespasser or licensee, or what-not, the act of Blackwell in permitting him to move into the place, and then attempting to evict him was entirely outside the scope of his employment and was not in the promotion of the master's business; and before the master can be held for the tort of his servant the act of the servant must not only be in the furtherance of the master's business, but must also be in the course of the appointed duties of the servant. See Davis v. Price, 133 Miss. 236; American Ry. Express Co. v. Wright, 128 Miss. 593; Petroleum Iron Works v. Bailey, 124 Miss. 15; Railroad Co. v. Boyd, 141 Miss. 598; Hines v. Cole, 123 Miss. 264 Railway Co. v. Garrett, 136 Miss. 221; Martin Bros. v. Murphree, 132 Miss. 514.

Argued orally by L. W. Maples, and W. J. Gex, for appellant, and W. M. Graham and E. J. Ford, for appellee.

OPINION

GRIFFITH, J.

There have been two trials of this case in the circuit court of Harrison county. The first trial at the October, 1927, term resulted in a verdict of ten thousand dollars in favor of the plaintiff. This was set aside by the court, and on the second trial at the October, 1928, term there was a verdict for the defendant; the verdict being directed by a peremptory instruction.

When the verdict and judgment in the first trial was set aside and a new trial ordered, the plaintiff during the term obtained a bill of exceptions which, according to the statement in the conclusion of said bill of exceptions, contained "a true and correct recital of all that occurred at the trial of said cause or that could or should be reflected in the record of said cause." The said bill of exceptions shows that the declaration contained two counts, similar however in so far as concerns the first matter herein dealt with, and that the first count, as it stood at the coming on of the trial, was in the following words and figures:

"Now comes the plaintiff, Irvin Gill, by his attorney, and complains of and against the defendant, the L. N. Dantzler Lumber Company, a corporation organized and existing under and by virtue of the laws of the state of Mississippi, with its domicile and principal place of business at Gulfport Harrison county, Mississippi, in an action of trespass upon the case:

"For that whereas, to-wit, on the 3d day of August, 1927, the defendant herein was and is the owner of a large number of acres of land in Harrison county, Mississippi, and that the defendant owned and operated a farm located in North-east Harrison county known as the Morris Hill Farm; that the said Morris Hill Farm is a very large plantation and that there is located upon said farm a large number of houses; all of which houses are owned and controlled by the defendant herein; that the defendant had as manager of the said Morris Hill Farm one Brown Blackwell; that the said Brown Blackwell had complete supervision and control of the said farm and all of the houses thereon located; that the said Brown Blackwell, as the foreman and manager of the said farm, had authority to let said houses and do all things in connection with the tenancy of said houses in the like manner that he had authority to supervise said plantation, and that ...