Natchez, C. & M. R. Co. v. Boyd

• Decision Date: 01 February 1926
• Docket Number: 25382
• Citation: 107 So. 1,141 Miss. 593
• Parties: NATCHEZ, C. & M. R. Co. v. BOYD, et al. [*]
• Court: Mississippi Supreme Court

107 So. 1

141 Miss. 593

NATCHEZ, C. & M. R. Co. v. BOYD, et al. ^[*]

No. 25382

Supreme Court of Mississippi

February 1, 1926

Division A

Suggestion Of Error Overruled March 1, 1926.

APPEAL from circuit court of Lawrence county, HON. J. Q. LANGSTON Judge.

Action by Mrs. Ada Boyd and others against the Natchez, Columbia &amp Mobile Railroad Company and others. Judgment for plaintiffs and the named defendant appeals. Reversed and judgment rendered.

Reversed and judgment here.

Brady, Dean & Hobbs, for appellant.

I. The court erred in instructing the jury over the objection of the appellant, contrary to all the evidence in the case, that Charles Barnett was authorized as a matter of law to employ Byzer Barnett and that, therefore, Byzer Barnett was the agent of the appellant. There is not the slightest hint in the testimony anywhere that any power to employ an assistant was vested in Charles Barnett. The testimony is positively to the contrary. There is no hint that Charles Barnett ever before exercised such an authority or that he was authorized to do so by the appellant. It must be perfectly apparent to this court that an employer might be willing to secure the services of an employee as a pumper, an agent, but would be wholly unwilling to delegate to an agent the authority to employ an assistant. The true doctrine is that the employer is not liable for the wrongful act of an assistant procured by the employee unless the latter can be said to have been "clothed with an express or implied authority to employ." In other words, "if the employee had authority to employ assistants the employer would be liable." Otherwise, he will not be compelled to respond. See 18 R. C. L. 785; Cooper v. Lowery, 60 S.E. 1015; Clough v. Power Co., 31 A. 223; F. W. Geiss v. Twin City Taxicab Co., 15 L. R. A. 382.

The doctrine, subject to certain qualifications, that a master is liable for the wrongful acts of a servant causing injury to a third person, when acting within the course of his employment and in furtherance of the master's business, is well settled. The cases decided by this court relating to this question may be classified as follows: (1) Those cases wherein the question of liability of the master arises wherein the public is invited to transact business with the master through the employee, the leading case in this class being American Express Co. v. Richberger, 73 Miss. 161. (2) Those cases wherein the question of liability on the part of the master arises through the acts of watchmen and officers on account of assaults made upon third persons, as in Y. & M. V. R. R. Co. v. Hare et al., 61 So. 648; Walters v. Stonewall Cotton Mills, 101 So. 495. (3) Those cases relating to the master's liability on account of the wrongful act of an employee, superior or otherwise, of an employer resulting in injury to another employee. See Hines v. Green, 125 Miss. 476.

All of the cases hereinabove classified hold subject to certain qualifications that the master is liable for the acts of the servant while acting in the course of his employment and in furtherance of the master's business. Although none of them are directly in point since the facts in this case are different from the facts in the case decided, still they are sufficiently so to deny the appellees the right of recovery.

It is apparent from all the cases establishing the doctrine upon which the appellees have squarely predicated their right to recover that the appellees were not entitled to recover for the reason that the testimony shows conclusively that William Boyd did not meet his death at the hands of an employee acting within the course of his employment and in furtherance of the master's business. Within the doctrine as announced by this court, see American Express Co. v. Richberger, 73 Miss. 161; Y. & M. V. R. R. Co. v. Hare et al., 61 So. 648; Walters v. Stonewall Cotton Mills, 101 So. 495; Hines v. Green, 125 Miss. 476; Hines, Director General of Railroads v. Cole, 85 So. 199; Great Southern Lumber Co. v. John May, 102 So. 854.

Fulton Thompson and R. H. & J. H. Thompson, also, for appellant.

Was the pumper and station agent authorized to secure the services of a third person, Byzer Barnett who killed Boyd, to guard its water tank and to arrest or kill any person who might trespass on the company's property? Is the railroad company responsible for the acts of Byzer Barnett, and was he acting for the company when he shot and killed Boyd? Was he serving the company? These are the prominent issues presented by the pleadings. The burden of proof was on the plaintiffs to establish their claim on each of them by a preponderance of the evidence. Our prima facie statute (Mississippi Code 1906, sec. 1985) has no application to the case.

The plaintiff's testimony wholly failed to show, it did not even tend to show, that Charles Barnett, the company's station agent and pumper, was authorized by his employer to guard the water tank; it showed only that he was the railroad company's station agent, and pumper. So far as concerned Byzer Barnett, the man who did the killing, the plaintiff's evidence showed that he was requested by his brother, Charles Barnett, the company's pumper, without authority from the company, to guard the tank at night to prevent it from being drained of water and that while so doing William Boyd, the decedent, appeared at the tank and opened one of its pipes causing the water to flow from it; plaintiffs claiming that the decedent went there to take a bath.

The circuit judge was manifestly of the opinion that a servant of a railroad company employed alone as a pumper to keep its tank reasonably full of water by pumping it into the tank from a well has, as a matter of law or necessary legal presumption, the duty of guarding the tank at night to prevent its being drained by unauthorized persons, and that the want of such authority cannot be negatived by testimony showing the non-existence of such authority. The trial judge was of the opinion and further held that a pumper so employed could not be shown by testimony not to have authority to employ or procure some other person to guard the tank and prevent its being drained of water.

G. Wood Magee, Geo. N. Magee and W. J. Lee, Jr., for appellees.

Was the railroad company responsible for the homicide, assuming that Charles Barnett, the agent, was responsible therefor? This proposition involves the question as to whether Charles Barnett was acting within the scope of his authority and in furtherance of his master's business in watching and guarding the water tank. The jury, with all the facts before them, said that Barnett was responsible for the killing. Was he, then, acting within the scope of his employment in watching the tank and while having it watched? We say, on the authorities before us, that he was.

We say that it makes no difference whether or not Barnett was directed or instructed to watch the tank. He was never instructed not to watch it. It was an implied duty of his to watch the tank because this act was implied from the scope of his employment and powers, and the test of liability is not that the particular act was commanded, but whether there was either express or implied authority for doing the act complained of by the plaintiff, or in the customary legal phrase, "within the scope of the employment." See 18 R. C. L., secs. 253, 254, 255, page 793 and numerous authorities cited under these sections; 1 Thompson on Negligence, sec. 540, page 503; Railroad Company v. Hare, 104 Miss. 564; Richberger v. Express Co., 73 Miss. 161; Barmore v. Railroad Co., 85 Miss. 426; 1 Thompson on Negligence, sec. 544, page 512; Walters v. Stonewall Cotton Mills, 101 So. 495; Dean et al v. Brannon, 104 So. 173. So we say in answer to appellant's second proposition, assuming that Charles Barnett, the agent, was personally responsible for the killing, that he was acting in the scope of his general powers when the killing occurred.

Was Charles Barnett authorized to secure his brother Byzer to watch the tank, and if so, was Byzer's act in killing Boyd the...