Odier v. Sumrall

• Decision Date: 18 January 1978
• Docket Number: No. 49749,49749
• Parties: Rollie Wayne ODIER, Plaintiff-Appellant, v. William Andy SUMRALL, Executor of the Estate of Kerry D. Kimbrough, Deceased, and Kimbrough Investment Company, Defendants-Appellees.
• Court: Mississippi Supreme Court

Page 1370

353 So.2d 1370

Rollie Wayne ODIER, Plaintiff-Appellant, v. William Andy SUMRALL, Executor of the Estate of Kerry D Kimbrough, Deceased, and Kimbrough Investment Company, Defendants-Appellees.

No. 49749.

Supreme Court of Mississippi.

Jan. 18, 1978.

Robert W. King, Roy D. Powell, Jackson, for plaintiff-appellant.

Butler, Snow, O'Mara, Stevens & Cannada, Junior O'Mara, Baine, Moore, Simmons & Thompson, Louis G. Baine, Jr., Clifford C. Thompson, Jackson, for defendants-appellees.

Before PATTERSON, C. J., and ROBERTSON and SUGG, JJ.

PATTERSON, Chief Justice, for the Court:

Rollie Wayne Odier sued Kerry D. Kimbrough and Kimbrough Investment Company for injuries he received in attempting to seat himself in a chair. The Circuit Court of the First Judicial District of Hinds County sustained a general demurrer of Kimbrough Investment Company to the declaration and the cause between Odier and Kerry D. Kimbrough was tried resulting in a verdict for the defendant. On appeal Odier argues the trial court erred in sustaining the demurrer of Kimbrough Investment Company, the verdict was against the overwhelming weight of the evidence and he should have been granted a peremptory instruction against Kerry D. Kimbrough.

Appellant first contends the demurrer of Kimbrough Investment Company was erroneously sustained. We think it was. The second amended declaration reads in part as follows 2. That on or about the 17th day of May, 1974, the Plaintiff was at his usual place of employment at the Veterans Administration on East Woodrow Wilson Avenue in the City of Jackson, Hinds County, Mississippi; that at said time and place, Plaintiff was working at his desk in a large office with other people working at their desks; that at said time and place, the Defendant, Kerry D. Kimbrough, in the line and scope of his employment with the Defendant, Kimbrough Investment Company, came into said office to see one of the Plaintiff's co-workers, Seth Hobert, and was standing behind Plaintiff's chair and in front of Hobert's desk; that the said Seth Hobert left his desk momentarily and while he was away from his desk the Plaintiff continued working, not giving any attention that the said Kerry D. Kimbrough was standing nearby; that the Plaintiff arose from his chair and reached across his desk to get some papers, not paying any attention to the fact that the Defendant, Kerry D. Kimbrough, was standing nearby; that at the time the Plaintiff arose from his chair, he pushed his chair slightly back and while Plaintiff was standing, the Defendant Kerry D. Kimbrough carelessly, imprudently, and negligently, and with a gross disregard for the rights and safety of the Plaintiff, and with a gross indifference for the consequences, moved Plaintiff's chair back about two feet; the Defendant Kerry D. Kimbrough then negligently and carelessly failed to warn the Plaintiff that he had moved said chair and as the Plaintiff sat down, he missed the chair and sat down hard on the tile floor causing his back and neck to strike the seat of the chair and his elbow to strike the wall, causing severe and painful injuries to his neck and back and right elbow.

3. That at said time and place, the Defendant, Kerry D. Kimbrough, was acting in the full line and scope of his employment as an employee of Kimbrough Investment Company, was attending to his employer's business, and was, therefore, an agent for the Defendant, Kimbrough Investment Company; and that the Defendant, Kimbrough Investment Company, is, therefore, answerable to the Plaintiff and liable to the Plaintiff for the acts and omissions of its servant, Kerry D. Kimbrough.

It is of course established that the master is responsible for the torts of his servant only when they are committed within the scope of his employment. The test used in determining whether an employee's tortious act is within the scope of his employment is whether it was done in the course of and as a means to the accomplishment of the purposes of the employment and therefore in furtherance of the master's business. Sears, Roebuck & Co. v. Creekmore, 199 Miss. 48, 23 So.2d 250 (1945); Alden Mills v. Pendergraft,149 Miss. 595, 115 So. 713 (1928). For the master to avoid liability because of the act of his servant it must be that at the time of the act the servant had abandoned his employment and was about some purpose of his own not incidental to the employment. Loper v. Yazoo & M.V.R. Co., 166 Miss. 79, 145 So. 743 (1933); Canton Cotton Warehouse Co. v. Pool, 78 Miss. 147, 28 So. 823 (1900).

The weight of authority is that a servant's unauthorized conduct does not place it beyond the scope of his employment provided it is of the same general nature as that authorized or is incidental to the employment. In Loper, supra, the following was stated:

Whether a servant's unauthorized conduct is of the same general nature as that authorized or incidental to the conduct authorized is a question of fact arising in each case on the evidence, and must be considered and determined as all other questions of fact are. If the evidence relative thereto is in conflict, or, if not, and only one reasonable inference can be drawn therefrom, the question is for the decision of the judge; but, if there is conflict therein, or more than one reasonable inference can be drawn therefrom, the question is for the decision of the jury under proper instructions. Ill. Cent. R Co. v. Latham, 72 Miss. 32, 16 So. 757 . . . .

(166 Miss. at 85-86, 145 So. at 745)

See also Eagle Motor Lines, Inc. v. Mitchell, 223 Miss. 398, 78 So.2d 482 (1955); Lovett Motor Co. v. Walley, 217 Miss. 384, 64 So.2d 370 (1953); Barmore v. Vicksburg, Shreveport & Pacific Railway Co., 85 Miss. 426, 38 So. 210 (1905).

We are of the opinion the declaration alleged facts sufficient to state a cause of action against Kimbrough Investment Company necessary to be decided in a trial on the merits. In reaching this opinion we observe the plaintiff did not allege that Kerry D....