Shell Petroleum Corp. v. Kennedy

Decision Date02 May 1932
Docket Number29946
Citation141 So. 335,167 Miss. 305
CourtMississippi Supreme Court
PartiesSHELL PETROLEUM CORPORATION et al. v. KENNEDY

Suggestion Of Error Overruled May 30, 1932.

(Division A.)

1 AUTOMOBILES.

Oil company's city manager driving with wife to another town to see about loan to another which, if procured, might have resulted in purchase by borrower of oil station and sale of oil to borrower, held not acting within apparent line of duties or course of employment when causing injuries.

2. APPEAL AND ERROR. Instruction on damages held not to necessarily allow damages for mental suffering after physical pain had ceased so as to require reversal.

The instruction was that jury could allow damages for any or all past, present, or future mental anguish, immediately succeeding words physical pain and suffering.

3 DAMAGES. Five thousand dollars for superficial cuts and bruises and injury to back causing pain, but not disabling plaintiff, held excessive by two thousand five hundred dollars.

Evidence disclosed that plaintiff received, in automobile accident some superficial cuts and bruises and that he suffered pain in his back continuously, but did not show how acutely; that he drove his car sitting sideways, and at night was awakened by pain in his back and had to change his position while sleeping. Evidence also disclosed that physician found by X-ray that there was trouble located in dorsal vertebra which he denominated arthritis, and that it might have been caused by blow. Plaintiff had expended about one hundred dollars in hospital fees and consultations with physicians, and was thirty-five years of age.

HON. J. P. FATHEREE, Judge.

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

Action by R. C. Kennedy against the Shell Petroleum Corporation and T. C. Houston. From a judgment for plaintiff, defendants appeal. Reversed and rendered for defendant Shell Petroleum Corporation, and affirmed with remittitur as to defendant Houston.

Reversed, and judgment here for Shell Petroleum Corporation; affirmed with remittitur as to Houston.

Bozeman & Cameron, of Meridian, for appellants.

A master clearly cannot be held responsible for a tort committed in furtherance, of his business, unless it is shown to have also been committed in the course of the appointed duties of the tort feasor.

6 Labatt's Master and Servant (2 Ed.), page 6704; Davis v. Price, 133 Miss. 236, 97 So. 557; Natchez, etc., Co. v. Boyd, 141 Miss. 593, 107 So. 1; Western Union v. Stacy, 139 So. 604; 39 C. J., 1271; 18 R. C. L., 795; Vicksburg, etc., Co. v. Ferguson, 140 Miss. 543, 106 So. 258; Wells v. Robinson Bros. Motor Co., 153 Miss. 451, 121 So. 141; Fisher v. Westmoreland, 101 Miss. 181, 57 So. 563; Sou. Lbr. Co. v. May, 138 Miss. 27, 102 So. 854; Hines v. Cole, 123 Miss. 254, 85 So. 199; Petroleum, etc. v. Bailey, 124 Miss. 11, 86 So. 644; Hines v. Green, 125 Miss. 476; American Express Co. v. Wright, 128 Miss. 593, 91 So. 342.

The mere fact that the master might have benefited by the course of conduct adopted by the servant would not make the master liable. It matters not how much the Shell Company might have profited by Houston's activities, or how conscientious he was in his effort to further their interests; the test is whether the act done was one which the master authorized by express statement, or by necessary implication.

It is clearly established under the decisions of this court that damages for mental anguish are recoverable only to the extent this anguish is a concomitant of physical pain.

Western Union Tel. Co. v. Rogers, 68 Miss. 748, 9 So. 823; Bonelli et al. v. Branciere, 90 So. 245.

The verdict is excessive. The clear duty of diminution of any damages which might otherwise be awarded rested on the jury. Instead of diminution, however, it is clear that the jury indulged in augmentation of damages.

Butler & Snow, of Jackson, and Dunn & Snow, of Meridian, for appellee.

In order to hold a master liable for the act of his servant it is not necessary to show that the act in question was either expressly or impliedly authorized by the master. If the servant at the time of the wrongful act was engaged for the master in the general scope of his employment, though acting contrary to the express instructions of the master, still the latter is liable. Or putting the same principle another way, if the servant, when he committed the wrongful act, was acting in furtherance of the master's business for which he was employed, the master is liable, although the servant in the doing of the act has, contrary to the instruction of the master, stepped beyond his authority.

Walters v. Stonewall Cotton Mills, 136 Miss. 375; Barmore v. R. R. Co., 85 Miss. 426.

If the act which the servant was engaged in at the time of the injury was one which, if continued until its completion, would have furthered the master's business and been within the scope of the servant's employment, the master would be liable, even though the act occurred at a place to which his duty did not necessarily call him.

Primos v. Laundry Co., 157 Miss. 770; Alden Mills v. Pendergraft, 149 Miss. 595; Gill v. Dantzler Lbr. Co., 153 Miss. 559; Oil Mill v. Crowley, 121 Miss. 267.

We respectfully submit that the evidence in this case shows that Kennedy was a well and healthy man prior to the accident; that immediately after the accident he began suffering with his back and one year after the accident an X-ray picture disclosed inflammation in the "dorsal-vertibrae." That during the entire year he had suffered constantly and continuously with his back from the injury; that he had not been able to get a single night's rest; and that he had to sit sideways in his automobile or in a chair when riding or sitting therein.

Appellants criticise instruction No. 11 claiming that the instruction warranted the jury in finding damages for mental anguish disassociated from physical pain. Of course, there can be no recovery for mental anguish except as the same may be accompanied with physical pain and suffering. And this is exactly what the jury is told in this instruction.

The instruction as given on this point is in direct harmony with, the rule announced in Western Union Tel. Co. v. Rogers, 68 Miss. 748 and Bonelli v. Branciere, 90 So. 245.

This court will not disturb the finding of the jury based on conflicting evidence.

Eastman Gardner & Co. v. Sumrall, 133 So. 212; Gillespie, v. Doty, 135 So. 211; Stevens v. Lock, 156 Miss. 182; Stokes v. Adams Lumber Co., 151 Miss. 711; Kress v. Sharp, 156 Miss. 693.

The verdict in this case under the evidence is not excessive. As a matter of fact, it is hardly adequate.

Argued orally by Ben Cameron, for appellant, and by Chas. B. Snow, for appellee.

OPINION

McGowen, J.

Kennedy, the appellee, sued Shell Petroleum Corporation and T. C. Houston, master and servant, respectively, for personal injuries received by him in a collision between a car driven by appellee and a car driven by Houston. Kennedy was traveling eastward on the public highway into Meridian, and Houston was driving westward out of Meridian. By the verdict of the jury and the judgment of the court there was a, substantial recovery against both defendants in favor of Kennedy, and Houston and Shell Petroleum Corporation prosecute an appeal to this court.

In view of the conclusion we have reached as to the disposition of the whole case, we deem it unnecessary to detail the facts of the collision. Suffice it to say that Kennedy and his witnesses made out a case of liability as against Houston, while the latter and his witnesses likewise made out a case of liability against Kennedy. In other words, as is usual in these cases, each party placed the blame for the accident upon the other party.

We shall first consider the liability of the Shell Petroleum Corporation as to whether or not the injury received by Kennedy was committed by Houston in the course of his employment and in the furtherance of the master's business. On this point, the essential facts are that Houston was employed by the Shell Petroleum Corporation as its city manager in the city of Meridian, where it maintained a bulk plant for the storage of gasoline and oil, which was under the supervision of Houston. His duties were to promote the sale of gasoline and oil in that territory, secure contracts for the handling of its products from retail dealers, and generally do those things which appertain to the promotion of the sale of the products of the Shell Petroleum Corporation within the patronizing territory. On a July afternoon about 5:30 or 6 o'clock, he left his office in the car furnished him by the master and took his wife for a drive westwardly out of Meridian. He intended to go to Chunky, about fifteen miles from Meridian, and there see a man by the name of Lewis. He conceived the idea that it would be to the interest of his company for a friend to acquire Eastburn's filling station in Meridian; having learned from one of the owners, a real estate agent, that it could be acquired. He recommended a man by the name of Fleming as a prospective purchaser, and ascertained from Fleming that he would become a customer of the Shell Petroleum Corporation, using its oil and gasoline products. Fleming did not have sufficient money with which to purchase the filling station. Houston learned that Lewis, at Chunky, was a man who might lend the money to Fleming with which to buy the filling station, and Houston's purpose on this drive was to interview Lewis, with the view of enlisting his aid in the project to the extent of making the loan to Fleming. While on this trip, six or seven miles from Meridian, the collision with Kennedy's car occurred.

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