Mills v. Pendergraft

• Decision Date: 27 February 1928
• Docket Number: 26891
• Citation: Mills v. Pendergraft, 115 So. 713, 149 Miss. 595 (Miss. 1928)
• Court: Mississippi Supreme Court
• Parties: ALDEN MILLS et al. v. PENDERGRAFT. [*]

115 So. 713

149 Miss. 595

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

No. 26891

Supreme Court of Mississippi

February 27, 1928

Division A

1. MASTER AND SERVANT. Whether foreman participated in assault on employee to intimidate employees demanding increased wages held for jury.

Whether assault on employee was participated in by foreman, having duty to employ and discharge laborers and fix amount of wages, and was for purpose of intimidating employees to prevent them from demanding increase in wages, or to prevent those who had demanded increase from insisting thereon, held for jury.

2. MASTER AND SERVANT. If assault on employee by foreman having duty to fix wages was made to intimidate employees demanding increased wages, it was in course of employment and in furtherance of master's business.

If assault on employee was participated in by foreman, having duty to fix amount of wages, for purpose of intimidating employees and preventing them from demanding increase in wages, then assault was made in course of his employment and was in course of and in furtherance of his master's business, since foreman's duty to employ and discharge laborers and fix wages included duty to employ laborers for such wages as would enable employer to realize just profit on investment.

3. MASTER AND SERVANT. Master is liable for servant's act in course of employment in furtherance of master's business though in excess of authority.

Where act complained of was in furtherance of master's business and within course of servant's employment, master is liable therefor although it was in excess of authority conferred by master on servant and was willfully and maliciously done.

HON. J D. FATHEREE, Judge.

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

Action by Joe Pendergraft, by next friend, M. V. B. Miller, against the Alden Mills and others. From the judgment, defendants appeal. Affirmed.

Affirmed.

Bozeman & Cameron, for appellants.

The principal error upon which we rely is that the court below refused to direct the jury to return a verdict for the defendants. The testimony fails to show that the assault was brought about by any negligence on the part of the master--the Alden Mills--or by the breach of any duty owed to Pendergraft, the person assaulted, by the master, and fails to show that the assault was made within the scope of the employment of either Goldman or Burt, the codefendants, in the furtherance of the master's business. According to plaintiff's own testimony, he was not an employee of the Alden Mills when the assault was made upon him. When he went back into the mill premises it was not to work or as an employee, but to talk to Burt and Goldman. It was not an assault by a foreman upon a fellow servant, whose services he had the right to control. The inference most favorable to plaintiff to be drawn from plaintiff's testimony is that, as alleged in the declaration, Burt and Goldman had conspired to entice Pendergraft--a former employee who had tried to promote a strike among the doffers for higher wages, into the mill and to assault him as punishment therefor and to deter other strike agitators.

The burden was on plaintiff to prove that the acts of Goldman and Burt were both within the scope of their authority and were also done in furtherance of the master's business. 18 R. C. L. 795, note 1. Most of the assault cases in the Mississippi Reports brought against the master, involve assaults made in connection with some work being actually done by the person assaulted. So. Lbr. Co. v. May, 138 Miss. 27, 102 So. 854. The master is not liable for the wrongful assault by one servant on another, unless the servant, in making the assault, was acting within the course of his employment with a view to the furtherance of the master's business. Hines v. Cole, 123 Miss. 254, 85 So. 199; Petroleum, etc. v. Bailey, 124 Miss. 11, 86 So. 644; Legrone v. M. & O. R. R. Co., 67 Miss. 592; Given v. Southern Ry. Co., 94 Miss. 830; Hines v. Green, 125 Miss. 476; American Ry. Express Co. v. Wright, 128 Miss. 593. In all the above cases decided by this court for the defendant master, the assault arose about the business of the master. The mere fact that the master may have benefited by the assault would not make him liable any more than that some person should be liable for an assault made by his friend in his interest, but without his concurrence or procurement.

M. V. B. Miller, for appellee.

Counsel contends that the inference most favorable to the plaintiff is that Burt and Goldman had conspired to entice Pendergraft a former employee who had tried to promote a strike among the doffers, into the mill and to assault him to deter other strike agitators, and that therefore such acts are wholly without the scope of their employment or in the furtherance of the business of the Alden Mills. To maintain this position he cites the following authorities: So. Lbr. Co. v. May, 138 Miss. 27, 102 So. 858; Hinds v. Cole, 123 Miss. 254, 85 So. 199; Petroleum Co. v. Bailey, 124 Miss. 11, 86 So. 644; Givens v. So. Ry. Co., 94 Miss. 830; Lagrone v. M. & O., 67 Miss. 592; Amer. Express Co. v. Wright, 128 Miss. 593; Hines v. Green, 125 Miss. 476.

The position of counsel is unsound for two reasons: first, it is based on an inaccurate statement of facts, assuming that Pendergraft was not an employee. Second, the authorities cited absolutely hold that one filling the shoes of the master, as superintendent or foreman, and directing and controlling the services of an employee and acting within the scope of apparent authority, is acting absolutely for the master just the same as if the master himself as a natural person, had done the act. The court said in the Lagrone case, 67 Miss. 596: "Appellee's injuries were the effect produced by the negligent act of a fellow servant." The case at bar is much stronger on the question of superintendency than either the Morris or Givens case. Petroleum Company v. Bailey, supra, cited by counsel, is very similar to the Lagrone case. The court held that Daugherty and the plaintiff were fellow servants, and under the facts of the case, that the assault occurred when neither the plaintiff nor Daugherty were acting within the scope of their employment. The superintendent's only act was to stop the fight, but that the fight occurred between the plaintiff and Daugherty, who was only a fellow laborer. In Hinds v. Green, the question of whether they were fellow servants was not involved, but under the authority of this case it is clear that the acts of Burt and Goldman in assaulting Pendergraft was within the scope of their employment. In the case at bar the quarrel between Pendergraft and Goldman and Burr certainly was not a private quarrel. It was undisputed that it originated because Pendergraft asked for an increase of wages and threatened to strike unless this was given. Clearly under the authority of the Green case, supra, which was cited by counsel, it was a question for the jury as to whether Burt and Goldman were acting in the scope of their employment in assaulting the plaintiff. In the Cole case, supra, the court held that the parties were fellow servants and that when the foreman assaulted the plaintiff he was not acting in the course of his employment and with a view to the furtherance of the master's business, for the reason that neither was employed to supervise, control or direct the work of the other.

In the case at bar, the facts are quite different. Burt and Goldman controlled, directed, and superintended the work of the appellee. American Express Co. v. Wright, 128 Miss. 593, was a case of a suit against the Express Company for a fur that was left in the express company's office, nor for transportation, but for the convenience of the party leaving it. The court held that the express company was not engaged in the business of checking parcels left there for the convenience of the public, but was engaged in the transportation of goods, and that, therefore, whatever occurred was not about the express company's business, but grew out of an unauthorized act on the part of its employee in agreeing to take care of the fur for the party leaving it there. In Great Southern v. May, supra, the court said, "Tally had no control or direction of the services of May. Neither one stood in the master's shoes in relation to the other, and the act of Tally cannot be said, under the facts of this case, to be the act of the master." The facts in the case at bar and in the Cole case are quite different. Under the authority of the May case, the appellants are liable to the appellee.

It was not even argued below that the fellow servant rule did apply. Bradford v. Taylor, 85 Miss. 409; Morris v Brookhaven R. R. Co., 88 Miss. 539; Givens v. So. R. R. Co., 94 Miss. 855, and Indianola Cotton Oil Co. v. Crowley, 121 Miss. 262, 83 So. 409, are conclusive on the fellow servant question under the facts of the case at bar. Bergman v. Hendrickson, 80 Am. St. Rep. 47. Even if Burt and Goldman had been expressly prohibited from using force under the circumstances which we maintain that they were not, still the master would...