Illinois Cent. R. Co. v. Wales

• Decision Date: 04 January 1937
• Docket Number: 32388
• Citation: 171 So. 536,177 Miss. 875
• Court: Mississippi Supreme Court
• Parties: ILLINOIS CENT. R. CO. et al. v. WALES

171 So. 536

177 Miss. 875

ILLINOIS CENT. R. CO. et al. v. WALES

No. 32388

Supreme Court of Mississippi

January 4, 1937

Division B

Suggestion Of Error Overruled, February 15, 1937.

APPEAL from the circuit court of Copiah county HON. J. F. GUYNES, Judge

Action by J. A. Wales against the Illinois Central Railroad Company and another. Judgment for plaintiff, and defendants appeal. Reversed and rendered.

Reversed, and judgment here for appellants.

Price, Price & McLain, of McComb, McNeil, Stevens & Zama and J. H. Garth, both of Hazlehurst, E. C. Craig, of Chicago, Ill., and Burch, Minor & McKay, of Memphis, Tenn for appellants.

The whole theory that a master is liable for the acts of his servant is based upon the doctrine of respondent superior, which is in turn based upon the old Latin maxim, "qui facit per alium facit per se.

"51 C. J. 594.

It seems that there are three tests to be applied when this question arises, a negative answer to either of which will exonerate the master. 1. Was the person committing the wrongful act an authorized agent of the alleged master? 2. If so, was he acting within the scope of his employment, that is, in line with his appointed duties, or in the execution of his employment, when he committed the act? 3. Was the act in the actual performance of his duties?

Courtney v. American Ry. Express Co., 120 S.C. 511, 24 A.L.R. 131; Craft v. Magnolia Stores, 161 Miss. 756, 138 So. 405; Rivers v. Y. & M. V. R. Co., 90 Miss. 196, 43 So. 571; Martin Bros. v. Murphree, 132 Miss. 509, 96 So. 961; 6 Labatt on Master & Servant, page 6851; N. C. & M. R. Co. v. Boyd, 141 Miss. 593; A. & V. R. Co. v. Harz, 88 Miss. 681; Southern R. Co. v. Garrett, 136 Miss. 216; Wells v. Robinson Motor Co., 153 Miss. 451; Great A. & Pac. Tea Co. v. Majure, 167 So. 637; N. O. G. N. R. Co. v. Frazer, 158 Miss. 420; Strickland v. Kress Co., 112 S.E. 30.

A voluntary slander uttered by an employee which had nothing to do with his employment, in which he was not engaged when he spoke, did not subject the employer to liability.

Moore Stave Co. v. Wells, 111 Miss. 796; 5 Thompson on Corporations (2 Ed.), sec. 5441; Washington Gas Light Co. v. Lansden, 172 U.S. 534, 43 L.Ed. 543; Courtney v. American Ry. Exp. Co., 113 S.E. 332, 24 A.L.R. 128; Great A. & P. Tea Co. v. Majure, 167 So. 637; Thomas-Kincannon-Elkin Drug Co. v. Hendrix, 168 So. 287.

The court erred in not directing a verdict for the appellant,- Illinois Central Railroad Company, on the ground that if the alleged slanderous words were spoken, as set forth in the declaration, Bee was not acting in the line of his appointed duties and in the scope of his employment at the time said words were spoken.

The investigation as to the brass stealing had closed some weeks before the alleged utterances. Bee was investigating the shooting of some negro firemen--an entirely different matter in which Wales was not implicated. Emmett Smith himself testified that on the occasion in question Bee "said to me he was investigating the negro shooting." Under such circumstances Bee, clearly, was not acting on his master's account and could not have had in his mind any interests of his master in speaking the alleged slander.

That the language of slander charged in the original declaration differed from that charged in the amended declaration, on which this judgment rests, is apparent from what has been said. In the original declaration the language charged was, "Don't you think that Wales (meaning plaintiff) was into that brass stealing"--an inquiry. The language in the amended declaration was this: "Don't you think that Wales (meaning plaintiff) is guilty of that brass stealing? I think they ought to have fired him before." The italicized language is an expression of his own opinion on the subject and virtually charged that Wales was guilty.

An amended declaration charging the slander at a time more than a year before the suit is brought will not be saved from the bar of the statute of limitations by the fact that the original declaration was filed in time if the original declaration set up a different time of utterance.

Underwood v. Smith, 93 Tenn. 688; 36 C. J. 1229, sec. 187; Smith v. Smith, 45 Pa. 403; Hester v. Muller, 107 N.C. 724; Age-Herald Pub. Co. v. Waterman, 66 So. 18.

The filing of original declaration will not save bar of the amended declaration.

It has been universally held that when the original declaration states no cause of action it will not arrest the running of the statute; and an amendment made after the bar of the statute is complete will be regarded as the beginning of the action in reckoning the statutory period of limitations.

37 C. J., page 1078, sec. 516, page 1074, sec. 511, page 1067, sec. 505, and page 1053, sec. 476; Travelers Ins. Co. v. Inman, 167 Miss. 288, 138 So. 339; Clark v. Gulf, etc., R. Co., 132 Miss. 627, 97 So. 185; Cox v. American, etc., Co., 88 Miss. 88, 40 So. 739.

The following authorities hold that an amendment introducing a new cause of action will not justify a recovery when barred by the statute of limitations:

Kohchwitz v. Healty, 36 Tex. 666; Alessandrelli v. Arbrogast, 209 F. 126; Bender v. Penfield, 235 Pa. 58; Coyne v. Lakeside Elec. R. Co., 227 Pa. 496; Blake v. Minkner, 136 Ind. 418; Thompson v. Beeler, 77 P. 100, 69 Kan. 462; Bricken v. Cross, 163 Mo. 449, 64 S.W. 99; Buerstetta v. Tecumset, 77 N.W. 1094, 57 Neb. 504; Butt v. Carson, 48 P. 182, 5 Okla. 160; Patillo v. Allen-West Com. Co., 131 F. 680; Whalen v. Gordon, 95 F. 305; Weston v. Warden, 19 Wend. 648; Hester v. Mullen, 107 N.C. 724; Hansbrough v. Stinnett, 25 Gratt (Va.), 495; Ga. Cent. R. Co. v. Sheftall, 118 Ga. 865, 45 S.E. 687; Spotswood v. Dandridge, 4 Hen. & M. 139; Todd v. Louisville, etc., R. Co., 68 Fla. 202, 67 So. 41; Jones v. Johnson, 81 Ga. 293, 6 S.E. 181; Cin. Sec. Nat. Bank v. American Bonding Co., 93 Ohio St. 362, 113 N.E. 221; La. Dairy v. N. Y., etc., R. Co., 218 Pa. 261, 67 A. 413; Schultz v. Short, 201 Ill.App. 74; Age-Herald Pub. Co. v. Watterman, 66 So. 16; Irvine v. Barrett, 89 S.E. 904, 119 Va. 587, Ann. Cas. 1917C, 62; Davis v. Union State Bank, 137 Kan. 264; Smith v. Smith, 45 Pa. 403.

Innuendoes cannot supply slander when the words themselves do not.

Irvine v. Barrett, 89 S.E. 904, 119 Va. 587.

If words originally charged are not actionable per se they cannot by amendment be enlarged in their meaning merely by addition of an innuendo. This is applicable to the proposition that the original declaration and bill of particulars did not state a cause of action.

Irvine v. Barrett, 119 Va. 587, 89 S.E. 904, Ann. Cas. 1917C 62; Hansbrough v. Stinnett, 25 Gratt 495; Georgia Central R. Co. v. Sheftall, 118 Ga. 865, 45 S.E. 687; Vickers v. Stoneman, 73 Mich. 419, 41 N.W. 495.

Anticipating that appellee will argue that the amended declaration was merely all enlargement or repetition of the slander charged in the original declaration, we cite the following authorities to show that the repetition, especially by the same person, constitutes a separate and distinct cause of action:

Age-Herald Pub. Co. v. Watterman, 66 So. 16, 188 Ala. 272, Ann. Cas. 1916E, 900; Ott v. Murphy, 141 N.W. 463, 160 Iowa 730; Sharp v. Larson, 72 N.W. 961; Jean v. Hennessy, 69 Iowa 373, 28 N.W. 645; Eylenfeldt v. Illinois Steel Co., 165 Ill. 185, 46 N.E. 266; No. Chi. Mill Co. v. Monka, 107 Ill. 340; Wende v. Chicago City R. Co., 271 Ill. 437, 111 N.E. 275, Ann. Cas. 1918A 222; Staub v. Van Benthenpen, 36 La. Ann. 467; Cook v. Conners, 215 N.Y. 175, L.R.A. 1916A 1074, Ann. Cas. 1917A 248; Woods v. Pangburn, 75 N.Y. 495; Fisher v. N. Y. Staats-Zeitung, 114 A.D. 824, 100 N.Y.S. 185; Underwood v. Smith, 93 Tenn. 687; Merchants Ins. Co. v. Buckner, 98 F. 222; Elms v. Crane, 118 Me. 261, 107 A. 852; Georgia Central R. Co. v. Sheftall, 118 Ga. 865.

The court erred in overruling the objections of the defendants to the evidence offered by the plaintiff of the mental pain, humiliation and embarrassment suffered by Mrs. Wales, a stranger to this suit.

37 C. J. 96, sec. 530; Dennison v. Daily News Pub. Co., 82 Neb. 675, 118 N.W. 568, 23 L.R.A. (N.S.) 362.

The court erred in overruling the defendants objections to plaintiff's evidence that he was discharged without cause and that he was denied a reason for his discharge or a hearing and that he was denied a clearance or statement of his record with the company and that his annual pass was cancelled and in permitting the introduction of various letters respecting his pass and discharge.

Railroad Co. v. Ely, 83 Miss. 519, 35 So. 873.

The court erred in sustaining objections made by the plaintiff to the testimony offered by the defendants disclosing a plot, conspiracy or scheme and agreement between the plaintiff and the witness Smith to charge the defendants' representative, Mr. Ogilvie, with having paid the witness Smith the sum of fifty dollars, which was deposited in the Bank of Summit, Mississippi.

Pearson v. State, 167 So. 644; Interstate Co. v. Garnett, 154 Miss. 356; 22 C. J., 321; Com. v. MinSing, 202 Mass. 121, 88 N.E. 918.

The verdict of the jury is contrary to the overwhelming weight of the convincing and credible evidence.

Miss. Power Co. v. Stiglets, 158 So. 907; Shelton v. Underwood, 163 So. 830; Fore v. I. C. R. Co., 160 So. 903, 172 Miss. 451; Spradling v. State, 163 So. 144; Life & Casualty Co. v. Parker, 161 So. 465, 173 Miss. 180.

Hugh V. Wall, of Brookhaven, R. L. Bullard, of Hattiesburg, and Williams & Hunt and Junior O'Mara, of McComb, for appellee.

It is undisputed that W. D. Bee, co-defendant with the Illinois Central Railroad Company was an employee and servant of the Illinois Central Railroad Company, and his position with the railroad company was that of special...