Singer Sewing Mach. Co. v. Stockton

• Decision Date: 05 November 1934
• Docket Number: 31364
• Citation: 171 Miss. 209,157 So. 366
• Court: Mississippi Supreme Court
• Parties: SINGER SEWING MACH. CO. v. STOCKTON

157 So. 366

171 Miss. 209

SINGER SEWING MACH. CO. v. STOCKTON

No. 31364

Supreme Court of Mississippi

November 5, 1934

Division B

1. MASTER AND SERVANT.

Sewing machine company held liable for agent's misconduct in attempting to cultivate relations and make engagements with prospective customer where there was no departure from principal's business; agent having come to plaintiff's house to make sale.

2. MASTER AND SERVANT.

Where agent in course of duty commits wrong or tort in reference thereto, master or principal is responsible, and, if servant commingles personal business with master's business master is liable for servant's conduct while so engaged.

HON. W A. WHITE, Judge.

APPEAL from the circuit court of Harrison county HON. W. A. WHITE Judge.

Action by Mrs. Martha Ann Stockton against the Singer Sewing Machine Company. Judgment for plaintiff, and defendant appeals. Affirmed.

Affirmed.

R. C. Cowan and David Cottrell, Jr., both of Gulfport, for appellant.

The rule properly stated is that liability of the master depends on whether the employee did the wrongful act complained of within the pursuit of the employer's business, and within the scope of authority, or had stepped aside from that business, and done an individual wrong.

Richberger v. American Express, 73 Miss. 161; New Orleans, etc., R. R. Co. v. Harrison, 48 Miss. 112.

The most liberal interpretation of the words used in the declaration would not permit a construction that Walker was promoting his master's business, or acting in furtherance of his master's business in attempting to have licentious relations with Mrs. Stockton, and it is an absurdity and reflection on good reason to insinuate that such acts could have been committed within the scope of Walker's authority as a sewing machine representative.

The declaration did not state a cause of action and defendant's demurrer thereto should have been sustained.

Barmore v. Vicksburg R. R. Co., 85 Miss. 426; Louisville, etc., R. Co. v. Douglas, 67 Miss. 723; New Orleans, etc., R. v. Harrison, 46 Miss. 112; Richberger v. Express Co., 73 Miss. 161; Canton Cotton Warehouse v. Pool, 78 Miss. 147; Lucas E. Moore Stave Co. v. Wells, 111 Miss. 796.

In order to hold the defendant liable, for injuries to a third person by defendant's servant, it must be shown that the servant committed the wrongful act within the pursuit of the employer's business, and within the scope of his authority.

18 R. C. L. 800; 73 Miss. 161; 18 R. C. L. 797; Southern R. R. Co. v. Garratt, 101 So. 348; 18 R. C. L. 807; Lula Smothers v. Welch & Co., 40 A. L. R. 1209; 3 R. C. L. Supp. 851, 1003; 4 R. C. L. Supp. 1209; 40 A. L. R. 1211.

In the case at hand, the assaulting, or attempted assault, of the plaintiff by the servant, was not an act within the scope of his employment, and in furtherance of his master's business, and to accomplish the purposes of his master's business, but on the contrary, the nature of the acts indicates that the servant must have been pursuing his own ends for his own purposes.

Smothers v. Welch & Co., 40 A. L. R. 1209.

There is nothing in the record to show that the plaintiff experienced any injurious result because of any activities on the part of Walker, except that she became excited.

In order to recover compensation for damages, some damage must be shown.

Western Union Telegraph v. Rogers, 68. Miss. 748, 9 So. 823.

Damages cannot be recovered by mere mental anguish which is not preceded by or accompanied with some physical injury.

8 R. C. L. 520; Western Union Telegraph v. Rogers, 68 Miss. 748; 17 C. J. 838.

Such activities on the part of Walker in this instance must be borne in mind as not a charge that the plaintiff was a woman wanting of chastity, but merely showed a purpose to seduce her from the path of virtue.

Maggie v. William Malley, 62 L. R. A. 901, 902.

R. A. Wallace, of Gulfport, for appellee.

The master is liable for the willful acts of his servant when done within the scope of the servant's employment, and in the course of the master's business.

Richberger v. American Express Co., 73 Miss. 161, 18 So. 922; Indianola Cotton Oil Co. v. Crowley, 121 Miss. 262, 83 So. 409; Y. & M. V. R. R. Co. v. Cornelius, 131 Miss. 37, 95 So. 90; Alden Mills v. Pendergraft, 149 Miss. 595, 115 So. 713; Gill v. L. N. Dantzler Lbr. Co., 153 Miss. 559, 121 So. 153; Buchanan v. Western Union Tel. Co., 106 S.E. 159; Son v. Hartford Ice Cream Co., 129 A. 778; Chicago Mill & Lbr. Co. v. Bryeans, 209 S.W. 69; Birmingham Macaroni Co. v. Tadrick, 88 So. 858; Barmore v. V. S. & P. R. R. Co., 85 Miss. 440, 38 So. 210.

The master who puts the servant in a place of trust and responsibility, or commits to him the management of his business or care of his property, is justly held responsible when the servant, through lack of judgment or discretion, or from infirmity of temper, or under the influence of passion aroused by the circumstances and occasion, goes beyond the strict line of his duty and inflicts an unjustifiable injury upon another.

Richberger v. Express Co., 73 Miss. 161; Buchanan v. Western Union Tel. Co., 106 S.E. 159.

If the servant is engaged in his master's business, and combines his own therewith, the master is liable for the servant's torts, while the servant is engaged in the joint enterprise.

Indianola Cotton Oil Co. v. Crowley, 121 Miss. 262, 83 So. 409; Primos v. Gulfport Laundry & Cleaning Co., 157 Miss. 770, 128 So. 507; McKeagh v. Morris, 265 S.W. 1059; Gulf Refining Co. v. Texarkana & Ft. Smith R. R. Co., 261 S.W. 169; Studebaker Bros. Co. v. Kitts, 152 S.W. 464; Rahn v. Singer Mfg. Co., 132 U.S. 518, 33 L.Ed. 440.

To relieve a master from liability for the servant's acts on the ground that the servant deviated from his service, the deviation must be so substantial as to amount to an entire departure therefrom, and be for purposes entirely personal to the servant.

39 C. J. 1297; Barmore v. V. S. & P. R. R. Co., 85 Miss. 440, 38 So. 210; Indianola Cotton Oil Co. v. Crowley, 121 Miss. 262; Primos v. Gulfport Laundry & Cleaning Co., 157 Miss. 770; Gulf Refining Co. v. T. & Ft. Smith R. R. Co., 261 S.W. 169; Rahn v. Singer Mfg. Co., 132 U.S. 518.

Damages for mental suffering are recoverable where it is occasioned by an injury that results proximately from a willful and intentional trespass.

Storm v. Green, 51 Miss. 103; Barbee v. Reese, 60 Miss. 906; W. U. Tel. Co. v. Rogers, 68 Miss. 748; Dorrah v. I. C. R. R. Co., 65 Miss. 14; Bonelli v. Bowen, 70 Miss. 142; Newell v. Whitcher, 53 Vt. 589, 38 Am. Rep. 703.

OPINION

Ethridge, P. J.

Mrs Martha Ann Stockton, the appellee here, brought suit against the Singer Sewing Machine Company, appellant, alleging that one R. S. Walker was a duly authorized agent of the company and engaged in the business of selling sewing machines in Biloxi, Harrison county, Mississippi, and on a certain day he came to her residence, knocked at the door, and appellee came to the door. That he stated he was selling sewing machines, and handed her some circulars, and asked her if she was interested in a sewing machine. She answered that she did not desire to buy a sewing machine. He then asked her for a match, and, when she turned and went into the house to get one, he came in the room where she was, and said, if she could not buy a machine, could he leave one with her for trial, he to come back later for it. He then asked her if she was married and if she had dates, to which she (appellee) replied that she was married and did not have dates. He then asked what her husband did as an occupation and whether he worked at night, and whether the appellee ever got lonesome, and whether she had an automobile, and asked that she come to Gulfport to see him. She told him her husband was a constable, and that she did not get lonesome. That Walker did not leave then, but walked across the room and tried to catch the appellee's hands, and that she gave him no encouragement. That Walker said, "Oh, don't do like that." Th...