Loper v. Yazoo & M. v. R. Co

• Decision Date: 23 January 1933
• Docket Number: 30280
• Citation: 145 So. 743,166 Miss. 79
• Parties: LOPER v. YAZOO & M. V. R. CO
• Court: Mississippi Supreme Court

145 So. 743

166 Miss. 79

LOPER v. YAZOO & M. V. R. CO

No. 30280

Supreme Court of Mississippi

January 23, 1933

Division A

1 RAILROADS.

Railroad is not liable for acts of locomotive fireman in ejecting trespasser, unless fireman acted within scope of employment.

2. MASTER AND SERVANT. Phrase "scope of employment," adopted for purpose of determining master's liability for servants' acts, has no fixed legal meaning.

Ultimate question in determining whether servants' acts were within "scope of employment," so as to render master liable, is whether it is just that the loss resulting from the servant's acts should be considered one of the normal risks of the business in which the servant is employed which that business should bear. The matters of fact usually taken into consideration include whether the master had reason to expect that such will be done.

3. MASTER AND SERVANT.

Fact that servant's conduct was unauthorized does not bring it outside "scope of employment," if of same general nature as, or incidental to, conduct authorized.

4. MASTER AND SERVANT.

Whether servant's unauthorized conduct is of same general nature as, or incidental to, conduct authorized, and therefore within scope of employment, is question of fact.

5 TRIAL.

Where evidence is conflicting, or more than one reasonable inference can be drawn therefrom, question is for jury.

6. MASTER AND SERVANT.

Servant's unauthorized act is incidental to authorized act, though different, if subordinate and pertinent thereto, provided it is something within ultimate objective of master.

7. MASTER AND SERVANT.

Servants' disobedience to instructions relating to manner of discharging duties is matter of common knowledge of which employers must take notice.

8 RAILROADS.

In action against railroad for damages to trespasser ejected from engine by fireman, whether fireman acted within scope of employment held question for jury.

HON. E. L. BRIEN, Judge.

APPEAL from circuit court of Warren county, HON. E. L. BRIEN, Judge.

Suit by Willie Loper against the Yazoo & Mississippi Valley Railroad Company. Judgment for the defendant, and the plaintiff appeals. Reversed and cause remanded.

Reversed and remanded.

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

As to trespassers, the, rule is that for wanton and malicious injuries the master is liable where the act complained of was done by the servant in the discharge of his duty to, and within the line of his employment by the master.

Railroad Co. v. Harris, 71 Miss. 74.

It is true that, ordinarily, the question whether the employer's act is within the line of his duty, done for the master and in his business, is one of fact for the jury, since, ordinarily there is conflict in the evidence.

Railroad Co. v. Latham, 72 Miss. 32.

The master who puts the servant in a place of trust or responsibility or commits to him the management of his business or care of his property, is justly held responsible when the servant, through lack of judgment or discretion, or from infirmity of temper, or under the influence of passion aroused by the circumstances and the occasion, goes beyond the strict line of his duty and authority and inflicts an unjustifiable injury upon another.

Richberger v. Express Co., 39 C. J. 1285, 73 Miss. 169.

Where an employer has duty to perform in reference to trespassers, it becomes a question for the jury to determine whether he acted within the apparent scope of his authority in ejecting such trespasser.

Railroad Co. v. Hunter, 74 Miss. 444.

Though the wrongful act complained of may be said to be outside of and beyond the duty of the servant, still, unless it was disconnected from the business of the company, the company was liable, because the servant was acting within the scope of his employment.

Pullman Co. v. Lawrence, 74 Miss. 782.

In determining whether a particular act is committed by a servant within the scope of his employment, the decisive question is not whether the servant was acting in accordance with the instructions of the master, but, was he at the time doing any act in furtherance of his master's business.

Barmore v. Railway Co., 85 Miss. 426.

If the act which the servant was engaged in at the time of the injury was one which, if continued until its completion, would have furthered the master's business and been within the scope of the servant's employment, the master would be liable, even though the act occurred at a place to which his duty did not necessarily call him.

Barmore v. Railway Co., 85 Miss. 426.

In order to hold a master liable for the act of his servant it is not necessary to show that the act in question was either expressly or impliedly authorized by the master. If the servant at the time of the wrongful act was engaged for the master in the general scope of his employment, though acting contrary to the express instructions of the master, still the latter is liable.

Walters v. Stonewall Cotton Mills, 136 Miss. 361.

If the act complained of was in furtherance of the master's business, and within the course of the servant's employment, and master will be liable therefor, although it was in excess of the authority conferred by the master on the servant (39 C. J., 1285), and was willfully and maliciously done.

Mills v. Pendergraft, 115 So. 713.

Hirsch, Dent & Landau, of Vicksburg, and Chas. N. Burch, H. D. Minor, and C. H. McKay, all of Memphis, Tenn., for appellee.

The master is not liable for the willful or negligent act of servants committed outside of the scope of the servant's employment unless the act is directed to be done or ratified by the master.

Illinois Central R. Co. v. Green, 130 Miss. 622; Southern Railway Co. v. Garrett, 136 Miss. 219; Natchez R. Co. v. Boyd, 141 Miss. 593.

A master clearly cannot be held responsible for a tort committed in furtherance of his business, unless it is shown to have also been committed in the course of the appointed duties of the tort-feasor.

Davis v. Price, 133 Miss. 243, 97 So. 557; Craft v. Magnolia Stores, 161 Miss. 756.

Mere retention of employee after assault on another, while acting without scope of authority and employment, was insufficient in itself to constitute ratification so as to render employer liable for unauthorized act, though fact of such retention of employee may be admitted in evidence as bearing on ratification.

Wells v. Motor Company, 153 Miss. 451.

The master is not liable for tortious act of his servant when engaged in his own private business, and not within the course of the servant's employment or in furtherance of the master's business.

Western Union Tel. Co. v. Stacy, 162 Miss. 286.

OPINION

Smith, C. J.

The appellant says that he was forcibly ejected from an engine of the appellee by the fireman thereof, and injured. He sued the appellee for damages alleged to have resulted to him therefrom. At the close of the evidence, the court directed a verdict for the appellee, and there was a judgment accordingly.

The evidence of the appellant is, in substance, that he was riding, as a trespasser, on the back end of the tender of one of the appellee's engines; that he was ordered off by the fireman of the engine, got down "between the rods of the car," and was then knocked off by the fireman with a lump of coal. This was denied by the fireman.

Two rules promulgated by the appellee for the guidance of its employees read as follows:

"Rule E. Employees must render every assistance in their power in carrying out the rules and special instructions and must report to the proper official any violation thereof."

"Rule 727. No person, except employees in discharge of their duties, will be permitted to ride on an engine, or in a baggage, mail, or express car, without a written order from the proper authority."

These rules, among others, were printed and distributed to the appellee's employees, and this fireman was familiar therewith.

The fireman and his engineer testified that the fireman had no authority to eject trespassers from an engine, but that his duty was to report the presence of trespassers thereon to the engineer.

The following questions and answers appear in the fireman's cross-examination:

"Q. Suppose I would get on the cab of the engine without permission, and I was sitting on your seat on the left hand side, what would you do about that? A. If you didn't have a written order to get there I would stop the train and put you off.

"Q. That would be your duty to do that? A. The rules require that no one is allowed on the engine except those that have work to do.

"Q. They must have a written order from the Master Mechanic? A. Yes, sir.

"Q. And you would stop and put me off the engine? A. Yes, sir.

"Q. The tender is part of the engine, is it? A. Yes, sir. . . .

"Q. Suppose I had gotten out of your way and moved my place from your box, but was still on the engine without authority under the rules, without a permit from the Master Mechanic, you would let me stay there indefinitely? A. I would tell you to get off.

"Q. Suppose I didn't get off? A. I would call an officer of the law. I would call the conductor; he is supposed to be the law until he can get a peace officer, and put you off."

Rule E does not restrict employees to any particular method of enforcing the appellee's rule prohibiting trespassers from riding its engines, and no other written or printed rule so doing was introduced in evidence. The testimony of the engineer and fireman that a fireman has no authority to eject trespassers from an engine of the appellee may have been, as from the evidence seems possible, only their interpretation of rule E; but we will assume that another rule or special instruction...