Great Atlantic & Pacific Tea Co. v. Majure

• Decision Date: 20 April 1936
• Docket Number: 32214
• Citation: 168 So. 468,176 Miss. 356,167 So. 637
• Parties: GREAT ATLANTIC & PACIFIC TEA Co. et al. v. MAJURE
• Court: Mississippi Supreme Court

167 So. 637

168 So. 468, 176 Miss. 356

GREAT ATLANTIC & PACIFIC TEA Co. et al. v. MAJURE

No. 32214

Supreme Court of Mississippi

April 20, 1936

Division B

April 20, 1936

Suggestion Of Error Of Great Atlantic & Pacific Tea Co. Overruled July 3, 1936; Suggestion Of Error Of G. E. Hart Overruled September 28, 1936.

APPEAL from circuit court of Neshoba county HON. D. M. ANDERSON Judge.

Action by E. C. Majure against the Great Atlantic & Pacific Tea Company, and another. From a judgment for plaintiff defendants appeal. Reversed in part, and affirmed in part.

Action by E. C. Majure against the Great Atlantic & Pacific Tea Company and G. E. Hart, wherein plaintiff recovered judgment against both defendants. Upon a purported appeal by defendants, the judgment against the Great Atlantic & Pacific Tea Company was reversed and the judgment against G. E. Hart was affirmed, the court holding that G. E. Hart and the surety on his appeal bond were liable for the judgment rendered. On question as to whether G. E. Hart appealed so as to permit entry of such judgment. Judgment in accordance with opinion.

Affirmed in part and in part reversed.

Hugh V. Wall, of Brookhaven, and J. B. Hillman, of Philadelphia, for appellant.

The court should have granted a directed verdict in favor of the appellant for the reason that G. E. Hart, at the time that he made the remarks of and concerning appellee and the cause of his discharge as a clerk in appellant's store, was not acting for his master and was not about his master's business. The appellant had no interest in the conversation between Hart and appellee's witnesses, and when Hart spoke to the witnesses of and concerning appellee, he was not acting for his master nor about his master's business and could not bind the. appellant, and could not subject appellant to damages on account of said remarks.

Newell, Slander & Libel (4 Ed.), chapter 3, page 62; Farley v. Bufkin, 132 So. 86, 159 Miss. 350; Strickland v. S. H. Kress & Co., 112 S.E. 30; Frazer v. N. O. & G. N. R. R. Co., 130 So. 493; Courtney v. American Ry. Express Co., 113 S.E. 332, 24 A. L. R. 128; Hypes v. Southern R. R. Co., 21 L. R. A. (N. S.) 873, 17 Am. Cas. 620; Doherty v. L. B. Price Mercantile Co., 95 So. 790; Washington Gas Light Co. v. Lansden, 172 U.S. 534, 43 L.Ed. 543; 5 Thompson on Corporation (2 Ed.), sec. 5441; Fensky v. Maryland Cas Co., 264 Mo. 154, Am. Ann Cas. 1917D 963, 174 S.W. 416.

Following all of these cases, we find that if the appellee had already been discharged for several days when Hart said to appellee's witnesses that there was a shortage in the store, and that the appellee was discharged on account of said stortage, Hart was not acting about his master's business and was not actually performing any duty touching the matter in question and was not in the actual performance of any duty to his master, the appellant. The matter of discharging appellee was a closed incident and anything that Hart said afterwards was not within his authority and he was not acting for the appellant and was not acting about the appellant's business and was not binding on the master, and we think this rule is well settled by the leading authorities in the United States and by our own court in the Doherty case and Frazer case above referred to.

Lucas E. Moore Stave Co. v. Wells, 72 So. 228.

There can be no recovery in this case because the words used by Hart of and concerning the appellee, as shown by this record were not actionable per se. The most that can be said is that the words were actionable per quod.

Jefferson v. Bates, 113 So. 215, 152 Miss. 128; Black's Law Dictionary, page 887; Woodville v. Pizatti, 80 So. 491; 17 R. C. L. 272, sec. 13; Goodrich v. Hooper, 97 Mass. 1, 93 Am. Dec. 49; Sheely v. Biggs, 3 Am. Dec. 552; 36 C. J. 1150, sec. 17.

There is no imputation of crime charged in the declaration and there is no imputation of crime in the testimony.

36 C. J. 1161, sec. 27, and 1165, sec. 29; Newell on Slander & Libel (4 Ed.), chapter 4, sec. 22, page 73, and sec. 200, page 249, and sec. 236, page 274; Valley Dry Goods Co. v. Buford, 114 Miss. 414, 75. So. 252.

A charge that a clerk in a store is short is not actionable per se and malice is not presumed and damage is not presumed.

Woodville v. Pizatti, 119 Miss. 85, 80 So. 491; Whitley v. Newman, 70 S.E. 686; 36 C. J. 1150-1152; York v. Mims, 200 S.W. 918; Wooten v. Martin, 131 S.W. 783; State v. Reynolds, 200 S.W. 296; 17 R. C. L. 274; 37 C. J. 23-24, 26, 35, 36-37, and 100.

Having failed to establish by a preponderance of the evidence of this case that such language was actually or must necessarily have been understood by the hearers of the language itself as imputing to appellee the offense of theft, as alleged in the innuendo, appellee wholly failed to make out a cause of action.

Fenn v. Kroger Grocery Co., 209 S.W. 885.

We submit that the recent case of Hand v. Industrial Life & Health Ins. Co., 165 So. 616, is authority for our position, that the words used by Hart was not the act of appellant, as the appellant had no interest in the matter and appellee's whole theory is in conflict with the decisions of this court.

Davis v. Price, 133 Miss. 236, 97 So. 557; 6 LaBatt's Master & Servant (2 Ed.), 2704.

The court erred in holding that this defendant is estopped, under the facts of this case, from setting up the want of authority of the attorneys to take any appeal in his behalf.

The obligation of the surety is accessory to the obligation of the principal and the general rule is that, unless the principal is bound, the surety is not. That the obligation of the surety cannot exceed the obligation of the principal.

21 R. C. L., sec. 27, page 974; 50, C. J. 92-93; Conn v. Pender, 1 S. & M. 173; L. R. A., Complete Digest, Principal and Surety, sec. 27.

This appears to be the general rule and we submit that if the court did not have jurisdiction of Hart then there can be no judgment under the decisions against the surety, and as we read the decision in its last analysis, the court holds that unless Hart is estopped, then there can be no judgment against him, and if there can be no judgment against Hart, there can be no judgment against the surety, and we repeat, that under the decisions, as we construe them, Hart could not be estopped from now asserting that this court had no jurisdiction of him on the ground that he did not inspect the record and did not take any steps to correct it for the reason that this could only amount to silence on his part, and as we understand the rule, there can be no estoppel by silence, unless there be a specific opportunity and a rem and apparent duty to speak. We submit that there was no specific opportunity and there was no real or apparent duty for Hart to speak.

There can be no estoppel unless someone is misled. Pace v.

Pace, 65 So. 273, 107 Miss. 292.

We submit that no one was misled in the case now under consideration. Appellee was not misled, because his counsel never at any time as shown by this record, considered Hart an appellant. Then, if they did not consider Hart had appealed his case, no one was misled.

Plant Flour Mills Co. v. Sanders & Ellis, 157 So. 713.

We respectfully submit that if Hart was not estopped then it is clear that he did not appeal his case and if he did not appeal his case, then the court would have no jurisdiction and if the court had no jurisdiction of Hart, then there can be no judgment against the surety.

21 R. C. L. 974, sec. 27, and 975, sec. 28; Eising v. Andrews, 66 Conn. 58, 33 A. 585, 50 A. S. R. 75; McConnell v. Poor, 113 Ia. 133, 85 N.W. 968, 52 L. R. A. 312; 38 A. S. R. 712; 52 L. R. A. 187; Wilson v. Hinman, 182 N.Y. 408, 75 N.E. 236, 108 A. S. R. 820, 2 L. R. A. (N. S.) 232.

We respectfully submit that the court is in error in its holding that it was the duty of Hart to examine the records. The affidavits in the case show, and there is no dispute about it, in fact the affidavits are admitted as being true, that Hart, when he was told that it would be necessary for him to give a bond if he wanted to appeal his case, and he expressed himself to the attorney who told him that it would be necessary for him to give a bond that he did not want to appeal his case. He was not told by the attorney that he had appealed his case. He was told by the attorney that he had not appealed his case.

We submit and most earnestly suggest that the bond did not, in the light of the affidavits in this case, operate as a stay of the proceedings on the judgment as to Hart. If we are correct upon this statement, then this suggestion of errors, we respectfully submit, should be sustained.

Hirsch Bros. v. R. E. Kennington, 155 Miss. 242, 124 So. 344.

The court cites the case of Grand Court of Colanthe v. Downs, 98 Miss. 740, 53 So. 417, from which we quote: "It is presumed that an attorney, assuming to represent a party, is authorized to do so. . . ." We have not quarrel to make with the court about that pronouncement. In fact, we agree that is the universal holding, but we disagree with deference with the court that the presumption prevails over the facts. We submit that it is a universal rule that all presumptions give way to facts. Not only is this true in legal proceedings, but it is true in other things.

Those who do not join in the appeal cannot be required to do so, and although summoned to join, they can only do so by giving bond with surety as if they had appealed in the first instance, as required by section 45, Code of 1906, section 20, Hemingway's Code 1927, which is the same as the present section 24, Code of 1930.

Wilkinson v. Love, 149 Miss. 535.

We say that Hart did not appeal his case and he was not an appellant. Never at any time is there...