Southern Bell Telephone & Telegraph Co. v. Quick

• Citation: 149 So. 107,167 Miss. 438
• Decision Date: 12 June 1933
• Docket Number: 30276
• Parties: SOUTHERN BELL TELEPHONE & TELEGRAPH CO. et al. v. QUICK
• Court: United States State Supreme Court of Mississippi

149 So. 107

167 Miss. 438

SOUTHERN BELL TELEPHONE & TELEGRAPH CO. et al. v. QUICK

No. 30276

Supreme Court of Mississippi

June 12, 1933

(In Banc.)

1 AUTOMOBILES.

Where undisputed evidence showed automobile causing third party's injuries was owned by employer and was furnished to employee to discharge duties, burden was on employer to prove employee was acting on some purpose of his own, and any doubt on question required submission to jury.

2. MASTER AND SERVANT.

That servant's conduct when injuring third person was unauthorized does not bring it within scope of employment provided it is of same general nature as that authorized, or incidental to conduct authorized.

3 EVIDENCE.

That defendant failed to call witness who was present in courtroom and who knew exculpatory facts raised strong presumption that such facts did not exist.

4 AUTOMOBILES.

Whether telephone company's repairer injuring third person while driving employer's automobile home to lunch after finishing repairs on telephone wire, and before returning to plant to work overtime on Saturday afternoon, was merely deviating from scope of employment so as to make employer liable, and not totally departing therefrom, held for jury.

5. MASTER AND SERVANT.

Instruction authorizing verdict against both employer and employee, if jury found servant guilty of negligence proximately contributing to injury while engaged in master's business, held proper, where there was other evidence besides that admissible against employee only, showing his negligence.

6. APPEAL AND ERROR.

Where verdict was not so grossly excessive as to evince passion and prejudice on jury's part, supreme court could not interfere.

McGOWEN J., dissenting.

HON. J. D. FATHEREE, Judge.

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

Action by W. J. Quick against Southern Bell Telephone & Telegraph Company and another. From a judgment for plaintiff, defendants appeal. Affirmed.

Affirmed.

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

This court is definitely committed to the rule, that to hold the master liable for the negligent acts of the servant such acts must have been committed while the servant was acting within the scope of his employment and in furtherance of the master's business; that at the very time such acts occurred the servant was engaged in the scope of his employment and in furtherance of the master's business. Further, that such must be proven by direct testimony and not by inference.

Canton Cotton Warehouse Co. v. Poole, 78 Miss. 147; Barmore v. Railroad Co., 85 Miss. 426; Hines v. Cole, 123 Miss. 254; Woods v. Franklin, 151 Miss. 635; Smith v. Dauber, 155 Miss. 695; Shell Petroleum Corp. v. Kennedy, 141 So. 335; Davis v. Price, 133 Miss. 236; Indianola Cotton Oil Co. v. Crowley, 121 Miss. 262; Walters v. Stonewall Cotton Mills, 136 Miss. 101; Natchez Railroad v. Boyd, 141 Miss. 593; Alden Mills v. Pendergraft, 141 Miss. 595; Wells v. Robinson Motor Co., 153 Miss. 559; Primos v. Gulfport Laundry Co., 157 Miss. 770; Craft v. Magnolia Stores, 161 Miss. 756; Western Union Telegraph Co. v. Stacy, 162 Miss. 286.

This court is definitely committed to the rule, that when the servant leaves the master's business, even temporarily, and starts about his own business, or on business which is not in furtherance of the business of the master, and a tort occurs while so engaged, the master is not responsible therefor.

2 Blashfield's Cyclopedia of Automobile Law, p. 1391; Dowdell v. Beasley, 87 So. 18, 205 Ala. 130; Jones v. Strickland, 77 So. 562, 201 Ala. 138; Musachia v. Jones, 223 P. 1006, 65 Cal.App. 283; Lee v. Nathan, 226 P. 970, 67 Cal.App. 111; Kish v. California State Automobile Ass'n, 212 P. 27, 190 Cal. 246; Hume v. Elder, 165 N.Y.S. 849, 178 A.D. 652; McQueen v. Peoples Store Co., 166 P. 626, 97 Wash. 387; Reilly v. Connable, 108 N.E. 853, 214 N.Y. 586, L. R. A. 1916A, 954, Ann. Cas. 1916A, 656; Hemphill v. Romano (Tex. Civ. App.), 233 S.W. 125; Symington v. Sipes, 88 A. 134, 121 Md. 313, 47 L. R. A. (N. S.) 662; Pace v. Mallen (Sup.), 181 N.Y.S. 20; Goater v. Klotz, 124 A. 83, 279 Pa. 392.

If a driver, at the time of causing an accident by his negligent operation of a motor vehicle, is using it to serve the individual purposes of some third person and not those of the owner, the latter will not be liable for such negligence, although the person so served may sustain an official relation to the owner of the machine.

Stegman v. Sturtevant & Haley Beef & Supply Co., 137 N.E. 363, 243 Mass. 269; Vallery v. Hesse Bldg. Material Co. (Mo. App.), 211 S.W. 95.

Under the general rule that a loan of a machine does not carry with it responsibility for the negligence of the borrower, where a servant, while not engaged in the master's business and during a time when he is free to engage in his own pursuits, uses the master's automobile for his own purposes, and while so using it negligently injures another by its operation, the master is not liable, no statute so prescribing, although such use is with the knowledge and consent of the master.

Eason v. Joy Floral Co., 130 S.W. 352, 34 Ga.App. 501; Perlmutter v. Byrne, 184 N.Y.S. 580, 193 A.D. 769; Adomaities v. Hopkins, 11 A. 178, 95 Conn. 239; Hannis v. Driver, 68 Pa. S.Ct. 548; Lee v. Nathan, 226 P. 970, 67 Cal.App. 11; Archie v. Hudson-Essex Co., 120 A. 162, 45 R. I. 109.

The general rule is that a servant in charge of his master's automobile, who, though originally bound upon a mission for his master, completely forsakes his employment and goes upon an errand exclusively his own, and while so engaged commits a tort, does not thereby render the master answerable for such tort under the rule of respondeat superior.

Dowdell v. Beasley, 87 So. 18, 205 Ala. 130; Drobnicki v. Packard Motor Car Co., 180 N.W. 459, 212 Mich. 133; Phillipson v. Moore, 204 N.Y.S. 526, 209 A.D. 246; Povo v. Conrad, 153 N.W. 753, 130 Minn. 412; Wyatt v. Hudson, 275 S.W. 15, 210 Ky. 47; Carty v. Acker, Merrall & Condit Co., 206 N.Y.S. 773, 210 A.D. 789; O'Brien v. Stern Bros., 119 N.E. 550, 223 N.Y. 290; Fleishchner v. Durgin, 93 N.E. 801, 207 Mass. 435, 33 L. R. A. (N. S.) 79, 20 Ann. Cas. 1291; Malmquist v. Hellenic Community of Minneapolis, 203 N.W. 420, 163 Minn. 10; Ursch v. Heier, 241 S.W. 439, 210 Mo.App. 129; Patterson v. Kates (C. C. Pa.), 152 F. 481; Kidd v. De Witt, 105 S.E. 124, 128 Va. 438; Blaker v. Philadelphia Electric Co., 60 Pa. S.Ct. 56; Clawson v. Pierce-Arrow Motor Car Co., 170 N.Y.S. 310, 182 A.D. 172; Seidl v. Knop, 182 N.W. 980, 174 Wis. 397.

The telephone company was not concerned with where Stewart obtained his meals, or, in so far as his contract of employment was concerned, whether he obtained his meals at all or not; Stewart was on no mission whatever for the telephone company, no mission which in any manner served the telephone company, but at the time of the accident was serving strictly his own personal ends.

The servant, in going for his meals with his master's car, will not be within the scope of his employment, unless such going or coming is done under a contract of hiring, the usage of which or the terms of which permit the servant to discharge his duties on such terms as suit his convenience, or the master, with full knowledge, acquiesces in the use of the car for this purpose, or consents to the use of the machine to facilitate the labors of the servant in furtherance of the master's interests, so that the jury may reasonably consider that such use is a normal one and contemplated as being a part of the compensation for the employment, and therefore done within its scope, or unless the contract provides that meals shall be furnished by the master.

2 Blashfield's late work on Automobiles, p. 1414; Berry on Automobiles (6 Ed.), sec. 1375, p. 1139; Steffen v. McNaughton, 142 Wis. 49, 124 N.W. 1016; Wilson v. Quick Tire Co., 32 Ga. 310, 123 S.E. 733; Lewis v. Amorous, 3 Ga.App. 50, 59 S.E. 338; Garner v. Souders, 20 Ga.App. 242, 92 S.E. 965; Daugherty v. Woodward, 21 Ga.App. 427, 94 S.E. 636; Hartnett v. Gryzmish, 218 Mass. 258, 105 N.E. 988; Miller v. National Automobile Sales Co., 117 Ill.App. 367; Danforth v. Fisher, 75 N.H. 111; Reilly v. Connable, 214 N.Y. 586; Bursch v. Greenough Bros. Co., 79 Wash. 109; Glassman v. Harry, 182 Mo.App. 304; Bloom v. Krueger (Wis.), 195 N.W. 851; Calhoon v. D. C. & E. Mining Co. et al., 209 S.W. 318; Hayes v. Hogan, 273 Mo. 1, 200 S.W. 286; Kish v. California State Automobile Association (Cal.), 212 P. 27; Orr v. Thompson, 219 Ill.App. 116; Hill v. Decatur Ice & Coal Co., 122 So. 338.

Counsel attempt to get comfort from Barmore v. Railroad, 85 Miss. 426; Caver v. Eggerton, 157 Miss. 88; Primos v. Laundry Co., 157 Miss. 770. No comfort can be had for appellee from these decisions. They announce the identical rule for which we contend here; namely, that the burden was on appellee to prove that at the exact time the accident occurred Stewart was engaged within the scope of his employment and in furtherance of the master's business.

The verdict of the jury for the sum of eight thousand dollars in this case was grossly excessive; so excessive as to evince passion and prejudice.

Bozeman & Cameron and M. V. B. Miller, all of Meridian, for appellee.

We think that the cases of Barmore v. Railroad Co., 85 Miss. 426, cited by counsel, Caver v. Eggerton, 127 So. 727, 157 Miss. 88, and Primos v. Gulfport Laundry Co., 128 So. 507, 157 Miss. 770, more nearly deal with the principle of law involved in the case at bar than any other Mississippi cases we have been able to find, and clearly under these authorities it was the duty of the court to submit the question of the Telephone Company's liability to the jury....