Jones v. Mills

• Decision Date: 26 March 1928
• Docket Number: 26916
• Citation: 150 Miss. 90,116 So. 438
• Court: Mississippi Supreme Court
• Parties: JONES v. ALDEN MILLS et al. [*]

116 So. 438

150 Miss. 90

JONES v. ALDEN MILLS et al. ^[*]

No. 26916

Supreme Court of Mississippi

March 26, 1928

Division A

Suggestion of Error Overruled April 23, 1928.

APPEAL from circuit court of Lauderdale county, HON. J. D. FATHEREE Judge.

Suit by Bernard M. Jones against the Alden Mills and another. Judgment for defendants, and plaintiff appeals. Reversed and remanded.

Judgment reversed, and cause remanded.

Williamson & Clayton, for appellant.

The defendant Burroughs, of course, committed an assault and battery when he cut the appellant with his knife, and as to him this cause of action was barred by the one-year statute of limitations at the time this suit was filed. As to said defendant, it was a case of trespass vi et armis. The declaration made out a different character of case altogether against the appellee, the Alden Mills. As to this defendant the declaration made out an action on the case. The appellee, therefore, was not charged with having committed an assault and battery and the case was not prosecuted on the theory that the appellee had committed an assault and battery, and to maintain our theory of the case we introduced evidence to establish the fact that on the day that appellant sustained the personal injuries complained of, and twice a day for three months prior thereto, appellant went into and through the Alden Mills and sold lunches, cold drinks, and sundries, for which privilege he paid the appellee ten per cent of the gross sales as per an agreement that he had with Mr. Palme, the general manager of said manufacturing plant.

The appellant introduced ample proof to sustain each and every allegation of his declaration, and more especially to prove that Burroughs, an employee of the appellee, was a man of ungovernable temper; that he was generally quarrelsome and was a vicious and dangerous fellow, frequently engaging in personal encounters and resorting to the use of a knife in connection therewith and had threatened to do personal violence to the appellant in the event he should come through said manufacturing plant, as was his custom, on the day that he sustained the injuries complained of, and that all of these facts and more were well known to the officials of the Alden Mills, including the general superintendent and his foreman, and that said officials not only negligently retained Mayfield Burroughs in the employment of the appellee after having acquired the aforesaid knowledge, but also negligently concealed these facts from the appellant and failed to give him notice of his perilous position and impending danger at a time when said officials knew that he would likely suffer death or great bodily harm at the hands of Burroughs in said manufacturing plant. The appellee Corporation owed the appellant, Bernard Jones, that same character of duty that if would have owed to him if Burroughs had been a vicious and dangerous bull on its premises, or a vicious and dangerous bull dog on its premises, or an extraordinarily dangerous pit-fall, or piece of machinery on its premises and situated in such a place or locality on said premises that Jones would likely come in contact with same while passing through said manufacturing plant as per his custom, under his aforesaid contract and agreement with the appellee. And the failure on the part of appellee to properly discharge its aforesaid duties, proximately resulting in injury to appellant, gave rise to the cause of action in favor of appellant, under the general law of negligence, to which the six-year statute of limitations would apply. Therefore the demurrer to the plea of the one-year statute of limitations filed by the appellee during the second day of the trial of this cause of action, should have sustained and a motion to exclude the evidence and grant a peremptory instruction should have been overruled. R. R. Co. v. Hare, 104 Miss. 564, 61 So. 648.

One who retains in his employment a dangerous, desperate, and drunken employee, whose reputation is such that the master might foresee that he was likely to make an assault on others, is liable for injuries caused by such an assault. M. K. & T. R. Co. v. Day, 136 S.W. 435, 104 Tex. 237, 34 L. R. A. (N. S.) 117; Magouirk v. Telegraph Co., 31 So. 207, 89 A. S. R. 663; 18 R. C. L. 730; 21 R. C. L. 838; 3 R. C. L. Supp. 1195; 5 R. C. L. Supp. 1174; Cobb v. Simon, 119 Wis. 597, 100 A. S. R. 909, 97 N.W. 276; Fairbanks v. Boston Storage Warehouse Co., 189 Mass. 419, 13 L. R. A. (N. S.) 422, 109 A. S. R. 646, 75 N.E. 737; Bowen v. Ill. Cent R. R. Co., 70 L. R. A. 915, 69 C. C. A. 444, 136 F. 306, 18 Am. Neg. Rep. 289; Dickinson v. Harrison Naval Stores (Miss.), 109 So. 605. Thompson on Negligence, 893.

When the trial court overruled said demurrer, and granted said peremptory instruction, it committed serious reversible error. Bell v. Kansas City M. & B. R. Co., 68 Miss. 19, 8 So. 508. In Alabama the statute of limitations, is exactly the reverse of the statute of limitations of Mississippi, and this fact must be borne in mind when we consider a decision of the Alabama supreme court on this point. Ex parte L. & N. R. Co. (Ala.), 83 So. 52, is the most direct case in point that we have read and we quote from this decision as follows: "That this battery was such a violation of corporate duty is, indeed, the sound basis upon which corporate liability is founded, but the corporate offense lies in the negligent failure to safely carry and protect, and not upon any legal fiction of direct intentional causation of the battery by the corporation." This case points out the difference between cases where the complainant is in trespass vi et armis and those in case. See also 5 C. J. 628; 37 C. J. 776. The form of action and not the cause of action must determine whether the plaintiff's action is barred. Stringer v. Stephens Estate, 117 A. S. R. 620. If an injured party has a right to either of two actions, the one he chooses is not barred by limitation, because the other, if he had brought it, might have been. Lamb v. Clark, 22 Mass. (5 Pick.) 193; Christy v. Farlin, 49 Mich. 319, 13 N.W. 607; Plant v. Murphy, 5 Ohio Dec. 544; McCombs v. Guild, 77 Tenn. (9 Lea); Bushnell v. Bushnell, 77 Wis. 435, 46 N.W. 442, 9 L. R. A. 411; Ferris v. Ferris, 1 Root (Conn.), 365. In M. K. & T. Ry. Co. v. Craddock, 174 S.W. 965, the court said: "The second assignment of error is that the court erred in overruling defendant's special exception, which was in effect that the petition showed it to be an action for libel and was barred by one year's limitation. The exception was leveled at that part of the petition which alleged in effect, that he had been charged by defendant with burglary and theft, etc.; that he was damaged in reputation, character, and fair name, etc., thereby. These allegations partake of a cause of action for libel and slander but when the acts charged are joined with charges for malicious prosecution, false imprisonment and assault as growing out of one continuous transaction, they are permissible and are controlled by the law governing actions for malicious false imprisonment."

Bozeman & Cameron and Amis & Dunn, for appellees.

The cause of action if any, was barred by limitations before the suit was begun. Sec. 2466, Hem. Code. In stating his cause of action the plaintiff averred, in part, that one or more of the officials of the Alden Mills knew that Burroughs intended to attack and cut plaintiff as he did attack and cut him, and actually encouraged him so to do; it being even inferred that he was put up to it; that one of the officials, who possessed said knowledge, talked with the plaintiff on the day that he sustained the injuries; that this official suggested certain facts which would bring the plaintiff in contact with Burroughs, and that said official then knew that Burroughs had planned to attack and cut the plaintiff. The effect of such averments in the declaration was to charge that the Alden Mills was an accessory to the assault. The declaration contains but one count and charges Burroughs and the Alden Mills with an assault and battery as the ground of the joint action against them. The appellant concedes in his brief that the cause of action against Burroughs was barred before the suit was begun, but contends that it was not barred as against the appellee, because as to the appellee the action was in case and as to Burroughs the action was in trespass.

Of course, a mere statement of the proposition is to condemn the declaration as being wholly bad. As just noted, the declaration consisted of but one count, and attempted at least to charge a joint cause of action against two defendants, growing out of a jointly prearranged assault and battery upon the plaintiff, consummated by the actual attack. If the action was joint and barred by the statute of limitations as to one of the defendants, it was barred as to the other. It is contended by the appellant that the statute of limitations as to actions for assault and battery is not applicable to the Alden Mills, for the reason it is a corporation and that a corporation cannot commit the offense. He cites in support of this proposition the case of Bell v. K. C. M. & B. R. R. Co., 68 Miss. 19. From an examination of that case it will be seen that it was a case of negligence, pure and simple. It is well settled that corporations may commit the offense and our court has so held in a number of cases. 7 R. C. L., p. 688, sec. 688.

The declaration charged an assault and battery on the plaintiff (pursuant to prearrangement between the officers of the corporation and Burroughs) by Burroughs and constituted an election of remedies by the plaintiff. The trial proceeded from beginning to end as a joint cause of action against both defendants. The declaration...