Interstate Co. v. McDaniel

• Decision Date: 15 March 1937
• Docket Number: 32641
• Citation: 173 So. 165,178 Miss. 276
• Court: Mississippi Supreme Court
• Parties: INTERSTATE CO. v. MCDANIEL

173 So. 165

178 Miss. 276

INTERSTATE CO. v. MCDANIEL

No. 32641

Supreme Court of Mississippi

March 15, 1937

Division B

1. MASTER AND SERVANT.

Where injurious act of servant is not so separated by time and logical sequence from master's business as to make it a separate and independent transaction, master is not relieved of liability, and where whole transaction consumes only a few moments and has all the features constituting one continuous and unbroken occurrence, master is not relieved of liability because servant steps outside his authority.

2. MASTER AND SERVANT.

Employer of vendor of newspapers, magazines, and refreshments on train held liable for injuries inflicted by vendor on drunken passenger whom vendor struck on the eye after having accused passenger of stealing oranges, even if vendor stepped outside of his authority, where transaction consumed only a few moments and had all the features constituting one continuous and unbroken occurrence.

3 DAMAGES.

$2,995 to drunken train passenger who received cuts above and below his eye when struck by vendor of newspapers, magazines, and refreshments held excessive by $1,495, where physician, who treated wound on six successive days after it had been inflicted testified that he was not an eye specialist and did not know whether injury was permanent, and passenger's own testimony as to permanency was weak.

4. NEW TRIAL.

$2,995 to drunken train passenger who received cuts above and below his eye when struck by vendor of newspapers, magazines, and refreshments held so large as to evince passion and prejudice, where physician, who treated wound on six successive days after it had been inflicted, testified that he was not an eye specialist and did not know whether injury was permanent, and passenger's own testimony as to permanency was weak.

HON. S P. DAVIS, Judge.

APPEAL from circuit court of Holmes county HON. S. F. DAVIS, Judge.

Action by R. Ernest McDaniel against the Interstate Company. From a judgment for plaintiff, defendant appeals. Affirmed with remittitur in accordance with opinion.

Affirmed with remittitur.

G. H. McMorrough, of Lexington, for appellant.

As shown by the motion for new trial and the assignment of errors, the appellant (defendant in the court below) strongly maintains that the amount allowed the plaintiff (appellee here) was and is grossly excessive, so much so as to show prejudice and passion on the part of the jury. It was wholly unwarranted by the evidence. In the first place appellant is not liable for the reason the evidence shows that the alleged difficulty was a personal one between McDaniels and Jones.

Wells v. Motor Co., 153 Miss. 451; Western Union Tel. Co. v. Weeks, 162 Miss. 286; A. & V. R. R. Co. v. Hartz, 88 Miss. 681; American Ry. Express Co. v. Wright, 128 Miss. 595; I. C. R. R. Co. v. Dodd, 97 Miss. 865; Valley v. Clay, 92 So. 308; Williams v. Pullman Co., 3 So. 631; Candiff v. L. N. O. & T. R. R. Co., 7 So. 601; G. M. & N. R. R. Co. v. Jones, 155 Miss. 689; McDermott v. Am. Brewing Co., 52 L. R. A. 684; Ritchie v. Waller, 27 L. R. A. 161; Smith v. Ricks, 150 So. 674; Fullmer v. L. & N. R. R. Co., 152 So. 148; Nuss v. City of New Orleans, 147 So. 374; Stone v. New Orleans Public Service, 1119 So. 757; Theriot v. Tassin, 146 So. 279; Cosse v. Ballay, 149 So. 285; Thibodeaud v. Star Checker Cab Co., 143 So. 101; City of Vicksburg v. Scott, 168 Miss. 572; Kelly v. Y. & M. V. R. R. Co., 98 Miss. 367; Rabelais v. Orleans Kenner Trac. Co., 123 So. 341; Dyer v. Warick, 140 So. 254; Shafer v. Southern Bell Tel. Co., 160 So. 349; Maestri v. McCall, 130 So. 229; Jordan v. Checker Cab Co., 120 So. 426; Ciaccio v. Cashio, 139 So. 34; Tisse v. Faye Bros., 129 So. 248; Roberts v. Chicago City R. R. Co., 46 A. L. R. 1254; Miller v. Britten, 46 A. L. R. 1272; Brock v. Interurban Motor Trac. Co., 100 So. 428; St. Louis R. R. Co. v. Hagler, 46 A. L. R. 1298; Reynolds Tobacco Co. v. Loftin, 99 So. 13; National Box Co. v. Henry, 140 Miss. 397; Beaumont Trac. Co. v. Arnold, 46 A. L. R. 1333; 102 A. L. R. 1125; Kroweznk v. Coleman, 102 A. L. R. 1171; Fulmer v. L. & N. R. R. Co., 102 A. L. R., 1154; Beard v. Williams, 172 Miss. 880; O'Pry v. Burdon, 149 So. 287.

S. R. King, of Durant, and E. T. Neilson, of Lexington, for appellee.

It is true that appellee requested exemplary damages, but according to the record the recovery was amply sustained by the evidence which was before the jury.

Y. & M. V. R. R. Co. v. May, 104 Miss. 422, 61 So. 449; Interstate Co. v. Garnett, 122 So. 373.

Appellant asked for a directed verdict in the court below on the ground that no liability was shown as against the appellant, for the acts of its agents towards the appellee, this motion was ample evidence before the jury, as a question of fact, and before the court as a question of law, that the agent, C. C. Jones, was acting within the scope of his authority, given him, expressly and impliedly by the appellant.

Loper v. Y. & M. V. R. Co., 166 Miss. 79, 145 So. 743; 39 C. J. 1284; Richberger v. American Express Co., 73 Miss. 161, 18 So. 922; Wishbone v. Yellow Cab Co., 97 S.W.2d 452; Singer Sewing Machine Co. v. Stockton, 157 So. 366; Kennington-Saenger, Inc., v. Wicks, 151 So. 549; Southern Express Co. v. Wamble, 103 Miss. 481, 60 So. 642; Y. & M. V. Ry. v. May, 104 Miss. 422, 61 So. 449.

The appellant complains that the court should have granted his peremptory instruction requested and refused. We respectfully submit that there was sufficient evidence upon which the jury was justified in finding against the appellant, and that there was a material conflict in the evidence, and, of course, where the evidence is sufficient, and there is a conflict in that evidence, the court will not grant such instruction to either side.

Masonite Corp. v. Dennis, 168 So. 613; Bourgeois v. Miss. School, etc., 154 So. 41; Gravette v. Golden, 154 So. 274.

OPINION

Anderson, J.

Appellee, R. Ernest McDaniel, brought this action against appellant, the Interstate Company, in the circuit court of Holmes county to recover damages for an injury received by him as the result of an alleged unjustifiable assault and battery committed on him by one Jones, a servant of appellant, and charged to have been committed by the servant when engaged about his master's business. There was a trial resulting in a verdict and judgment in the sum of $ 2,995. From that judgment, the Interstate Company prosecutes this appeal.

Only two of the assignments of error have sufficient merit to call for a discussion by the court. They are, whether appellant was entitled to a directed verdict, and, if not, whether a new trial ought to have been granted on the ground that the verdict was excessive, that being one of the grounds of the motion for a new trial, which was overruled. The questions will be disposed of in the order stated.

Appellant is a corporation organized and existing under the laws of the state of Delaware and engaged in operating lunch rooms cafes, and in selling fruit and other merchandise on passenger trains. It had a contract with the Illinois Central Railroad Company to sell fruit, soft drinks, and other edibles on some, if not all, of its passenger trains running through Mississippi. Its business on the trains was through the agency of what is commonly known as a "news butch," who also sold newspapers and magazines. One of these servants was C. C. Jones. On the night of June 21, 1936, the Illinois Central Railroad Company ran an excursion train from Durant, in this state, to Memphis, Tenn. Jones was in charge of appellant's business on that...