Scott-Burr Stores Corporation v. Edgar

• Decision Date: 03 January 1938
• Docket Number: 32451
• Court: Mississippi Supreme Court
• Parties: SCOTT-BURR STORES CORPORATION et al. v. EDGAR

177 So. 766

181 Miss. 486

SCOTT-BURR STORES CORPORATION et al. v. EDGAR

No. 32451

Supreme Court of Mississippi

January 3, 1938

Division A

APPEAL from the circuit court of Hinds county HON. J. P. ALEXANDER Judge.

Action by Charles Edgar against Scott-Burr Steres Corporation and another. From a judgment for plaintiff, defendants appeal. Reversed and remanded, with directions.

Reversed and remanded.

Watkins & Eager and Powell, Harper & Jiggitts, all of Jackson, for appellant, Scott-Burr Stores Corporation.

The Scott-Burr Stores Corporation is not liable for the alleged acts of its manager. Said acts were not within the scope of his employment nor in furtherance of the manager's business, and the learned trial court erred in refusing to peremptorily instruct the jury to return a verdict for this appellant.

A. L I. Restatement Agency, sec. 73; In re Davis, 28 F.2d 883; Houston v. Oppenheim, 166 Miss. 619; Natchez, etc. R. Co. v. Boyd, 141 Miss. 593; Davis v. Price, 133 Miss. 236; Martin Bros. v Murphress, 132 Miss. 509; Moore Stave Co. v. Wells, 111 Miss. 796; A. L. I. Restatement, Agency, Sec. 229; Lamm v. Charles Stores, 159 S.E. 444; Bernheimer v. Becker, 3 L.R.A. (N.S.) 221; Hand v. Industrial Life, 165 So. 616; A. & P. Co. v. Majure, 167 So. 637.

However, even if the agent would have been acting within the scope of his authority, if the act was done in an attempt to recover the property for the principal, the agent was not acting within the scope of his authority when his assault and libel was for the purpose not of benefiting his employer but for a personal reason, on his own behalf as a citizen.

A. L. I. Restatement, Agency, secs. 235, 245, 247; 39 C. J. 1295; Western Union v. Stacy, 162 Miss. 286; Pruitt v. Watson, 138 S.E. 331; State v. Trumble, 41 S.W.2d 801; Cope v. Askins, 270 S.W. 454; Strickland v. Kress, 112 S.E. 30.

Rules and regulations of a principal are controlling upon the question of the scope of authority, where the rules and regulations forbid the act itself, or the general class of acts to which the act belongs, or forbid the result sought by the act, as distinguished from the rules axed regulations dealing with the manner or method of the agent of performing an authorized act.

A. L. I. Restatement, Agency, sec. 230; Bourgeois v. Miss. School Supply, 170 Miss. 310; 6 Labatt, Master & Servant, sec. 2285; Von Scorer v. Megginson, 144 Miss. 510; Richberger v. Am. Express Co., 73 Miss. 161; Railroad CO. v. Latham, 72 Miss. 32.

The jury should have been directed to return a verdict in favor of appellant on the second count since if the act was within the scope of his authority then it necessarily follows that he in good faith had reason to believe the words spoken to be true and was under a legal or moral duty to do so. In the absence of actual malice the appellant would not be liable because the occasion was privileged even though the statement may have been incidentally overheard by some third person where the plaintiff's conduct was such as was calculated to and did create in the mind of the manager belief in the truth of the alleged defamatory statement.

Newell, Libel and Slander, page 5 (4 Ed.); Flynn v. Reinke, 63 A.L.R. 1113; Ballinger v. Democrat Co., 223 N.W. 375; Grantham v. Wilkes, 135 Miss. 777; Bull v. Collins, 54: S.W.2d 879; Hall v. Rice, 223 N.W. 4; Weinstein v. Rhorer, 42 S.W.2d 892; World Oil CO. v. Hicks, 46 S.W.2d 394; Odgers, Libel and Slander (5 Ed.), 352; La. Oil Corp. v. Renno, 157 So. 705; Railway Co. v. Brooks, 69 Miss. 168; Wrought Iron Range Co. v. Boltz, 123 Miss. 550; Holiday v. Maryland Cas. Co., 115 Miss. 56; Oakes v. Walker, 154 So. 26; Stewart v. Riley, 172 S.W. 791; Ice Co. v. Moreland, 55 S.W.2d 616; Fahr v. Hayes, 21 Vromm 275; Butler v. Freyman, 260 S.W. 523; Montgomery Ward v. Watson, 55 F.2d 184; Kroger Grocery v. Yount, 66 F.2d 700; N. Y., etc., Steamship Co. v. Garcia, 16 F.2d 734; Gust v. Montgomery Ward, 80 S.W.2d 286; Parr v. Warren-Lamb, 236 N.W. 291; Rosenberg v. Mason, 160 S.E. 190; Walgreen Co. v. Cochran, 61 F.2d 357; Newell, Libel & Slander (4 Ed.), sec. 296; 17 R. C. L. 344.

The court committed reversible error in admitting the evidence over the objection of appellant of alleged defamatory statement made by Swanson subsequent to the matters alleged in plaintiff's declaration, which statements are not set out in plaintiff's declaration and were not made while Swanson was transacting any business for the appellant and were not made to persons having any interest in the subject matter.

I. C. R. R. v. Ely, 83 Miss. 519; Y. & M. V. R. Co. v. Rivers, 93 Miss. 557; La. Oil Corp. v. Renno, 173 Miss. 609; Great A. & P. Co. v. Majure, 167 So. 637; McClellan v. O'Engle, 77 So. 270; Thompson v. Boston Pub. Co., 189 N.E. 210; Reusch v. Roanoke Cold Storage, 22 S.E. 358; Am. Pub. Co. v. Gamble, 90 S.W. 1005; Stuart v. New York Herald, 77 N.Y.S. 216; Swindell v. Harper, 41 S.W. 117.

A statement by the defendant of a separate add independent slander against the plaintiff subsequent to the slander sued on is not admissible in an action on the original slander.

Giehl v. Winkler, 164 Ill.App. 358; Daughtery v. Blanket State Bank, 60 S.W.2d 272; Standard v. Coal Co., 47 S.W.2d 443

The court erred in authorizing the recovery of punitive damages on either count.

Such repetition under circumstances would increase the amount of recovery.

Melcher v. Beeler, 139 A. S. R. 273; Beshirs v. Allen, L.R.A., 1915E 413.

There is insufficient evidence to justify exemplary damages under Count No. 1.

5 C. J. 705; Y. & M. V. v. Mullins, 153 Miss. 774; Bounds v. Watts, 159 Miss. 307; Miss. Traction Co. v. Taylor, 112 Miss. 60; Y. & M. V. R. Co. v. Mullen, 158 Miss. 774; McDonMd v. Moore, 159 Miss. 326; Miss. Power Co. v. Byrd, 160 Miss. 71; 37 C. J. 121; Massee v. Williams, 207 F. 222; Jarnigan v. Fleming, 43 Miss. 710.

The verdict was grossly excessive from every standpoint.

Miss. Central v. Smith, 159 So. 562; R. R. Co. v. Frazer, 158 Miss. 407; Hinds v. Shoemaker, 97 Miss. 669; Y. & M. V. R. Co. v. Hardie, 100 Miss. 132; M. & O. R. Co. v. Frazer, 158 Miss. 407.

Powell, Harper & Jiggitts, of Jackson, for appellant, E. W. Swanson.

The instructions granted the plaintiff Charles Edgar which submit the question of malice and/or punitive damages to the jury are erroneous.

Miss. Light & Traction Co. v. Taylor, 112 Miss. 6.0, 72 So. 856; Bounds v. Watts, 159 Miss. 307, 131 So. 804; Y. & M. V. R. R. Co. v. Mullen, 158 Miss. 774, 131 So. 101.

To say that a person's remarks two or three months or six months after an event can prove the state of mind of the person at the time of the said event is conjecture of the wildest kind. One may be perfectly friendly with a person today, and because of some wrong or injury, actual or supposed, may be at outs with the person two or three months later. I-Iow can it be said that what one has remarked three months later can possibly prove the state of mind of this person as to his friend of three months before ? Had the remark been made shortly thereafter there might have been some bare possibility that a state of mind could be shown. But when the remarks are made weeks and even months after they certainly cannot be construed as showing the state of mind at the time of a previous event.

Certainly the alleged statements of Swanson made of and concerning the plaintiff, even if untrue, were qualifiedly privileged, that is to say, that even if true that on the day and date complained of the alleged statements being made by Swanson, which statements were denied by Swanson and by every other witness present in the store except the defendant, the statements were qualifiedly privileged in that young lady clerks in the store had notified Swanson that the plaintiff had picked up the razor blades, gone out of the store with the same in his left hand, and whatever Swanson said or did upon that occasion resulted solely from such information.

Kroger Grocery & Baking Co. v. Yount (C. C. A. 8), 66 F.2d 700; Montgomery Ward & Co. v. Watson (C. C. A.), 55 F.2d 184; Butler v. Freyman, 260 S.W. 523; Giehl v. Winkler, 164 Ill.App. 358; Swindell v. Harper, 41 S.W. 117; Stuart v. N.Y. Herald Co., 77 N.Y.S. 216.

The damages awarded the plaintiff were grossly excessive as to evince passion and prejudice on the part of the jury.

M. & O. R. R. Co. v. Frazer, 158 Miss. 407; Allen v. Friedman, 156 Miss. 77; Chapman v. Powers, 150 Miss. 687; Pounders v. Day, 151 Miss. 436; City of Greenwood v. Pentecost, 148 Miss. 60; Cointment v. Crapper, 41 La. Ann. 303; Fitzgerald v. Boulat, 13 La. Ann. 116; Mortimer v. Thomas, 23 La. Ann. 165; Howard v. Grover, 28 Me. 97, 48 Am. Dec. 478; Peterson v. Western Union Tel. Co., 33 L.R.A. 203, 43 L.R.A. 581.

Ross R. Barnett, P. Z. Jones, Arden Barnett and John E. Stone, all of Jackson, for appellee.

The agent, Swanson, was acting within the scope of his employment and in the furtherance of his master's business at the time of the assault and slander.

Scott-Burr Stores v. Edgar, 165 So. 623; Wharton on Agency &amp Agents, sections 117, 118; Mechem's Outlines of Agency, sec. 68; Idom v. Weeks & Russell, 135 Miss. 65, 99 So. 761; 39 C. J., pages 12834287; 18 R. C. L., sees. 253, 254, 256. and 266; Sehultz v. Brown, 256 F. 190; New Jersey Steamboat Co. v. Broekett, 121 U.S. 637; Y. & M. V. R. R. Co. v. Cornelius, 131 Miss. 39, 95 So. 90; Alden Mills v. Pendergraft, 149 Miss. 595, 115 So. 713; Gill v. Dantzler Lbr. Co., 153 Miss. 559, 121 So. 153; Slaughter v. Holsombaek, 166 Miss. 643, 147 So. 138; Biermer v. Vicksburg, S. & P. R. R., 85 Miss. 426, 30 So. 210; Southern Bell v. Quick, 167 Miss. 438, 149 So. 107; Loper v. Y. & M. V. R. R. Co., 166 Miss. 79, 143 So. 743; Walters v. Stonewall Cotton Mills, 136...