Hahn v. Owens

• Decision Date: 08 June 1936
• Docket Number: 32299
• Citation: 176 Miss. 296,168 So. 622
• Court: Mississippi Supreme Court
• Parties: HAHN v. OWENS

168 So. 622

176 Miss. 296

HAHN v. OWENS

No. 32299

Supreme Court of Mississippi

June 8, 1936

Division A

Suggestion Of Error Overruled September 21, 1936.

APPEAL from chancery court of Warren county. HON. J. L. WILLIAMS Chancellor.

Action by Mrs. Katherine Owens against Mrs. Ida M. Hahn. From an adverse decree the defendant appeals. Reversed and rendered.

Reversed decree here for the appellant.

Vollor & Teller, of Vicksburg, for appellant.

There is a horde of authority to the effect that this honorable court will not reverse a decree of the chancellor, on the facts, unless in a case of manifest error, that is, as the decisions hereinafter cited disclose: When the finding is against the overwhelming weight of the evidence, or when the testimony, upon which the finding is predicated, is supported by improbable or unreasonable proof, or, as further aptly phrased, in the words of this honorable court, when "according to our view of the facts and the promptings of our conscience, the learned chancellor was manifestly wrong."

Gillis v. Smith, 114 Miss. 665, 75 So. 451; Clark v. Dorsett, 128 So. 79, 157 Miss. 365; Louis Werner Sawmill Co. v. Northcutt, 134 So. 156, 161 Miss. 441; Fidelity & Casualty Co. v. Cross, 95 So. 631, 131 Miss. 632; Stevens v. Magee, 81 Miss. 644, 33 So. 73; Quock Ting v. United States, 140 U.S. 417, 35 L.Ed. 501, 11 S.Ct. 733.

The testimony of a witness may be so impossible and absurd and self-contradictory that it should be deemed a nullity by the court.

Graham v. Chicago & N.W. R. Co., 143 Iowa 604, 119 N.W. 708; Wray v. Southwestern Electric Light & Water Power Co., 68 Mo.App. 380; Catlett v. Chestnut, 146 So. 246; Newton v. Homoehitto Lbr. Co., 162 Miss. 20, 138 So. 564.

We concede that it is "rarely the case" that the proof, which "tends to sustain the issue, is so unreasonable and contradictory within itself that it cannot be reasonably accepted as true." When such, however, is actually the case, then in an action, at law, the issue should be withdrawn from the jury and a peremptory instruction should be granted. This is the law.

Newton v. Homochitto Lbr Co., 162 Miss. 20; Scroggins v. Metropolitan St. R. Co., 138 Mo.App. 215, 120 S.W. 731.

There was no relationship of principal and agent as to acts complained of. Agency must be proven, and the burden was on the appellee.

An agent may not, by assumption of a task, bind his principal, when such was not authorized by or ratified by the principal.

Miller v. Teche Lines, Inc., 167 So. 52.

It is not enough that the act done may bear some relation to the authorized duties (Natchez, C. & M. R. Co. v. Boyd, 141 Miss. 593, 600. 107 So. 1) but the incidental connection should be so dose and definite that it can be safely said that the damage resulting from the servant's act may be justly imposed upon the master as one of the normal risks which the business should bear, and that the act complained of was one which the master or principal could have reasonably anticipated as probable in view of the terms of the employment and the general situation, known to the master or principal or of which he had an adequate opportunity to know.

Hand v. Industrial Life, etc., Co., 165 So. 616; Y. & M. V. R. Co., 166 Miss. 79, 145 So. 743; Miller v. Teche Lines, Inc., 167 So. 52.

It should here be remembered that appellant had and was conducting no general business. Mr. Hahn, Jr., was not a general agent, and his authority was expressly limited. The appellee was, in effect, a caretaker of the property. That was the primary, major consideration of her being thereon, which fact the record definitely and undisputably discloses. Mr. Hahn, Jr., was, under those circumstances, authorized, on appellant's behalf, to request appellee's removal if he deemed such course advisable. That was the extent and limit of his authority, the scope of his agency and right to bind the appellant in the premises.

Russell v. Palatine Ins, Co., 106 Miss. 290, 63 So. 644.

It is well settled in this state that when the agent acts beyond the scope of his appointed duties and exceeds his authority the principal is not liable; and, further, that the agent cannot enlarge his authority by unauthorized acts.

White v. Lee, 97 Miss. 493, 52 So. 206; Benefit Assn. v. Smith, 101 Miss. 332, 58 So. 100; Ismert-Hincke Milling Co. v. Natchez Baking Co., 124 Miss. 205, 86 So. 588; Loper v. Y. & M. V. R. Co., 145 So. 743, 166 Miss. 79.

While a criminal act or action may be within the scope of an agent's implied powers, the courts are always careful not to extend the rule of respondeat superior beyond its reasonable and legitimate bounds.

A. L. I. Restatement, Agency, 516, par. 231.

W. W. Ramsey and Brunini & Hirsch, all of Vicksburg, for appellee.

It is a matter of constitution right to all parties litigant to have their issues of fact submitted to and passed upon by the jury or chancellor, according to the ordinary practices of the forum in which a case is for trial; and it is a matter of constitutional right that the successful party there shall not have his cause reviewed except upon the record as there made, and that the findings of fact as there determined shah not be reversed unless clearly shown to be erroneous. It has, therefore, been the uniform rule that the Chancellor's finding on the facts is reviewable on appeal only when manifestly wrong. This rule has its foundation not only in the imperative operation of the constitutional ordinances mentioned; it has a further controlling reason in this: The opportunities afforded to the trial court are far better for arriving at correct conclusions and findings upon all the questions of fact.

Griffith's Chancery Practice, page 783, sec. 674.

The complainant in her original bill alleged that Mrs. Hahn owned the premises known as 2022 Cherry Street, and also averred that the acts complained of were committed by Mrs. Hahn's son while acting for and on behalf of the defendant. The defendant, Mrs. Hahn, then filed her sworn answer and therein swore "that the said Jack Hahn, Jr., was directed and instructed by said defendant to ascertain the condition of her aforementioned property and the care taken thereof by complainant, and to request the removal of complainant in the event he deemed such a course advisable."

According to the appellant's contention, they should now raise the point that complainant Called to prove that the defendant owned the premises known as 2022 Cherry Street. We feel confident that counsel for the appellant must be aware of the elementary rule of practice in the chancery courts, requiring the parties to specifically deny or admit every essential fact alleged by either party. The purpose of that rule, naturally, is to narrow the issues as much as possible. That is what the appellant did in this case, namely, admitted the directions and instructions that had been given to Hahn. Of course, the complainant did not go into and attempt to prove the agency of Hahn in the face of that admission. We feel that counsel for the appellant will admit that at the opening of the trial of this case, after the pleadings had been read to the learned chancellor, the complainant through her attorneys specifically called the attention of the honorable lower court to the fact that the defendant had admired the ownership of the property and the agency of her son. That was not denied at that time by the defendant.

Inasmuch as the appellant had instructed her son to use his judgment as to whether or not the complainant should be removed from the premises there can be no question whatsoever but (hat his acts were done in the furtherance of that instruction, and within the scope of his agency. He was attempting to remove the complainant at the time that the assault occurred. In other words, he was trying to remove her by turning out the lights, by locking the doors, and by freezing her out, the latter variation of which was to deprive the complainant of kindling wood with which to heat the house. All of these things were within the scope of his employment.

Argued orally by Landman Teller, for appellant, and' by Edmund L. Brunini, for appellee.

OPINION

McGowen, J.

This case arose in the chancery court of Warren county by bill in attachment under sections 173, 174, Code 1930, filed by appellee, Mrs. Owens, against appellant, Mrs. Hahn, a resident of the state of Florida. The bill was predicated upon appellee's claim for unliquidated damages for an unlawful assault and battery alleged to have been committed upon her by Jack Hahn, Jr. son of the appellant, while acting for and on her behalf in an effort, as alleged, to evict appellee from a house in Vicksburg owned by the appellant.

Appellant filed a sworn answer denying that any assault and battery had ever been commuted by her son; denying the allegation of agency, and denying that Jack Hahn, Jr., acting for her, or in his individual capacity, committed any assault upon appellee, or offered her any other indignity. The answer further contained the statement: "That the said Jack Hahn, Jr., was directed and instructed by said defendant to ascertain the condition of her aforementioned...