Richberger v. American Exp. Co.

• Decision Date: 06 January 1896
• Citation: 18 So. 922,73 Miss. 161
• Court: Mississippi Supreme Court
• Parties: GEORGE RICHBERGER v. AMERICAN EXPRESS COMPANY

18 So. 922

73 Miss. 161

GEORGE RICHBERGER v. AMERICAN EXPRESS COMPANY

Supreme Court of Mississippi

January 6, 1896

FROM the circuit court of the second district of Coahoma county HON. R. W. WILLIAMSON, Judge.

The plaintiff's declaration set out the following: That, on the twenty-third day of December, 1894, he delivered at the office of the defendant express company, in the town of Clarksdale, and to the agent in charge thereof, two certain packages, upon which he desired to prepay the charges from Clarksdale to the town of Tutwiler; that the said agent told him the amount necessary to prepay the same, which he thereupon paid to said agent, but called the attention of said agent to the fact that he was charging a sum in excess of the rate of the express company for transmission; that afterwards, on the same day, he met on the railway train the general agent of the express company, and ascertained from him that said charge was excessive, and the said general agent said the matter would be arranged; that afterwards, on the twenty-fifth of December, 1894, he went to the office of the express company, and told said agent what had been said by the general agent, and asked that the amount of said overcharge be paid to him, but this was not done; that afterwards, on or about the first week in January, 1895, he went to said express office at Clarksdale, upon business with said company, when, and at which time, the said agent of said express company in charge of said office informed him that he desired to refund to him said overcharge, and then and there paid the same to plaintiff, and required plaintiff to sign a receipt for the same, and when plaintiff signed and delivered said receipt to said agent, the said agent did then and there, immediately upon the reception of said receipt, and while plaintiff was there in the business office of said company, wilfully, wantonly, oppressively and wrongfully curse, abuse, insult and maltreat plaintiff, because plaintiff had demanded and received from said company the overcharge as aforesaid; thereby injuring and wounding him to his great damage; wherefore he demands judgment of said American Express Company for the sum of $ 1,950, and all costs.

Among the grounds of demurrer to this declaration, assigned by the defendant, are the following:

"3. Because it appears on the face of said declaration that the act or acts of said defendant's pretended agent of which complaint is made, and on which plaintiff relies as the basis of his suit, were not done or committed by him in the line of his duty to the defendant, nor within the scope of his, the said agent's, employment by said defendant.

"4. Because it does not appear from said declaration that the act or acts of said defendant's pretended agent, of which complaint is therein made, and on which plaintiff relies as the basis of his suit, were done or committed by him with the authority, knowledge or consent of said defendant, and because it does appear from said declaration that all of the said acts so complained of and set forth in said declaration were the wilful acts of said agent, done by him in his own wrong, without authority from this defendant, and without its knowledge, consent or subsequent ratification, and were not within the line of said agent's duty or within the scope of his employment by the defendant."

Reversed, demurrer overruled and cause remanded.

Cook &amp Yerger, for the appellant.

The declaration shows that the appellant was in the office and regular place of business of the express company for a lawful purpose, and was called upon by the company's agent to receive and receipt for an overcharge that had been made by this same agent and paid by appellant, and that, after the receipt was signed, and because the appellant had asked for and received his legal rights, the agent thereupon immediately cursed and insulted him.

It is not desired on behalf of appellant to question the authority of those cases which hold that the master is not liable where the servant was not acting within the scope of his authority but had gone outside to find strangers with whom the master had no business, and with whom the servant had no business for his master.

It the case at bar, however, the agent was transacting a business with which he had been charged, and was engaged with a person to whom the company owed a duty, and while the company confessed their wrong through an agent chosen by them to right the wrong, the agent inflicted a grievous injury upon the appellant because appellant received the benefit of what the principal admitted to be his due.

The company selected an agent to tender to appellant the amount of money unjustly extorted from him, and, while engaged in the performance of this duty, and because of it, the agent proceeded to curse and abuse appellant, because he, the innocent victim of the company's rapacity dared to accept justice.

The doctrine that the master is not responsible for the words and acts of his servant when the servant disobeys his instructions, and commits a tort, is not disputed by the appellant, but this rule has no application to the state of facts here presented. It is true that the agent was charged with the duty of refunding the overcharge in a proper manner and when he went outside of that he was disobeying the orders of his principal, but he was clearly engaged in the performance of an act which could be performed in two ways. He could have performed it in a legal manner, or he could have performed it, as he in fact did, in such a manner as to inflict damage upon the person with whom he was dealing. He did what he was authorized to do, but did it in an illegal manner. There is nothing in the nature of an express company, or of its duties to its patrons and the public, to exempt it from liability in such a case.

D. A. Scott, for the appellee.

Since the time of Lord Kenyon's famous opinion in the case of McManus v. Crickett, 1 East, 106, the rule of respondeat superior has never been known to apply to cases such as this. The case of the Southern Express Co. v. Brown, 67 Miss. 260, does not do so, for, in that case, as the opinion states, the plaintiff did not seek to show "any wilful wrong; his effort was to show gross negligence." The injurious act of the servant imposes no liability upon the master, unless it was something which his employment contemplated, or that, if done by him wilfully, he could have done it in his employer's name. Cooley on Torts, 536; Williams v. Pullman Palace Car Co., 3 So. 631.

The rule seems to be that, when the agent, acting in the capacity bestowed upon him by the corporation and in discharge of some duty or employment directed by the employer, or incidental to his situation, does an act that causes damage, the corporation is responsible. But, where the agent does an act of his own fee will, without reference to his functions as an agent, the corporation is not responsible. For example, if some person should go into a banking house or insurance office, and there get into a difficulty in relation to business of the corporation with an agent or officer, and an assault and battery should ensue, it could not be seriously contended that the bank or insurance office was responsible for damages unless there was some recognition of the act. Etting v. Bank, 7 Rob. (La.), 459; Dyer v. Riley, 28 La. 6; Pierce on Railroads, 279; Fields on Corp., §§ 524, 623; Isaacs v. Railway, 47 N.Y. 122; Railway Co. v. Baum, 25 Ind. 72; Flower v. Railway Co., 69 Pa. 210.

The rule is best stated by Lord Kenyon in McManus v. Crickett, supra, as follows: "1. When the servant is in the performance of his master's orders or authorized acts, and in the doing thereof conducts himself so negligently or unskilfully that an injury results to another, or his goods, then the doctrine respondeat superior applies, and the master will be liable in an action on the case. 2. That for the acts of the agent or servant wilfully and intentionally done without the command or authorization of the master, the servant is liable, and the master is not." Story on Agency, § 456; 2 Kent's Com., marg. notes 259, 260; Addison on Cont., 635; 1 Smith's Leading Cases, H. & W. Notes, 560; Foster v. Essex Bank, 17 Mass. 479; Edwards on Bailments, 318, 319; Angell on Carriers, §§ 541, 604; Richmond Turnpike Co. v. Vanderbilt, 1 Hill, 486; Hibbard v. N. Y. & E. R. R. Co., 15 N.Y. 455; Cox v. Keahey, 76 Am. Dec., 385; Wright v. Wilcox, 19 Wend., 343.

The following instances of its application illustrate the rule Where a conductor by mistake gave a passenger a transfer which appeared on its face to have expired by limitation, and the conductor on the connecting line ejected him, he was entitled only to compensatory damages for the act of the servant, unless it was an authorized act, or there was a subsequent ratification. Muckell v. Rochester Railway Co., 86 N.Y.S. C.; 79 Hun, 32. Where a servant employed in the delivery of goods by wagon, drives out of the way of his route for the purpose of visiting his home, the master is not liable for injuries to a child because of the servant's negligence in driving as he left his home. Chicago Consolidated Bottling Co. v. McKenzie, 51 Ill. 325. A contractor is not liable for an injury caused by bricks falling from an improperly constructed wall, after its completion, through the intentional or negligent act of an employee not acting within the scope of his employment, though proper scaffolding or guards to prevent brick falling had not been erected. Mayer v. Thompson-Hutchinson Building Co. (Ala.), 16 So. 620. A master is not liable for the acts of a servant committed outside of the line of his duty. Western Union Tel. Co. v. Mullins (Neb.), 2 N.W. 880. Where a railroad brakeman...