Tarver v. J. W. Sanders Cotton Mill, Inc

• Decision Date: 13 November 1939
• Docket Number: 33843
• Citation: 187 Miss. 111,192 So. 17
• Court: Mississippi Supreme Court
• Parties: TARVER v. J. W. SANDERS COTTON MILL, INC

192 So. 17

187 Miss. 111

TARVER v. J. W. SANDERS COTTON MILL, INC

No. 33843

Supreme Court of Mississippi, Division B

November 13, 1939

Suggestion Of Error Overruled December 11, 1939.

APPEAL from the circuit court of Pike county HON. J. F. GUYNES Judge.

Action by F. T. Tarver aainst the J. W. Sanders Cotton Mill, Inc. and Ben Harris for personal injuries. Plaintiff took a nonsuit as to Ben Harris after a peremptory instruction was granted in favor of the J. W. Sanders Cotton Mill, Inc., and from the judgment entered on the peremptory instruction plaintiff appeals. Affirmed.

Affirmed.

Roach & Jones, of McComb, for appellant.

The court erred in holding that the night watchman was not acting within the scope of his authority at the time of his assault upon the appellant.

Everything must be considered as proven which the evidence establishes either directly or by reasonable inference against the party who asks for a peremptory instruction.

Lee County Gin Company v. Middlebrooks, 161 Miss. 422, 137 So. 108; Gravette v. Golden Saw Mill Trust, 170 Miss. 15, 154 So. 274.

The appellant in this case is entitled to the inference that when the night watchman came out of the enclosed premises of the appellee and assaulted appellant he was acting for and on behalf of the appellee and preventing what he considered a threatened trespass or invasion into the enclosed premises of the appellee. It is true that the night watchman testified, when being questioned by the appellee that his duties were confined to the enclosed premises of the appellee, but in our opinion this fact is not enough for it to be said that the appellee was entitled to its peremptory instruction.

Walters v. Stonewall Cotton Mills, 136 Miss. 361, 101 So. 495; Loper v. Yazoo & M. V. R. Co., 166 Miss. 79, 145 So. 743; Barmore v. Vicksburg S. & P. Railway Co., 85 Miss. 426, 38 So. 210; Richburger v. Express Co., 73 Miss. 161, 18 So. 922; Railway Company v. Hunter, 74 Miss. 444, 21 So. 304; Southern Bell Telephone & Telegraph Company v. Quick, 167 Miss. 438, 149 So. 107; Gill v. Dantzler Lumber Company, 153 Miss. 559, 121 So. 153; Alden Mills v. Pendergraft, 149 Miss. 595, 115 So. 713; Wright v. Payne, 127 Miss. 565, 90 So. 248; Indianola Cotton Oil Co. v. Crowley, 121 Miss. 262, 83 So. 109; Primos v. Gulfport Laundry & Cleaning Co., 157 Miss. 770, 128 So. 507; Singer Sewing Machine Company v. Stockman, 171 Miss. 209, 157 So. 366; Wilson v. Fowler Packing Co., 255 P. 1109, 123 Kans. 470; Interstate Co. v. McDaniel, 178 Miss. 276, 173 So. 165.

The conflict in the testimony of the appellant and the witness, Harry Bates, and that of the night watchman, Ben Harris, presented a question of fact for the jury as to whether the night watchman was acting within the scope of his authority at the time of the assault upon the plaintiff.

Southern Bell Telephone & Telegraph Company v. Quick, 167 Miss. 438, 149 So. 107; Ritchie v. Waller, 63 Conn. 155, 28 A. 29, 38 Am. St. Rep. 361; Barmore v. Vicksburg S. & P. Railroad Company, 85 Miss. 426, 38 So. 210; Loper v. Yazoo & M. V. Railroad Co., 166 Miss. 79, 145 So. 743.

Watkins & Eager, of Jackson, for appellee.

Our learned friends seem to entertain the view that a jury question is raised simply because the alleged assault was unjustifiably committed by Mr. Harris at a time when he was an employee of appellee. It is, of course, essential that the relation of employer and employee exist, but it is just as essential that at the particular time the act of the employee must be not only within the scope of his employment but, as this court has said on numerous occasions, such act must be in furtherance of the master's business. Unless the act is one in furtherance of the master's business, then the master is in no wise concerned. We earnestly submit that the master is no more liable here for Mr. Harris' acts than the owners of the Standard Life Building would be if the night watchman would leave the entrance of the building and walk fifty or one hundred feet down the street and engage in a controversy, either rightfully or wrongfully, with a third party.

Natchez, C. & M. R. Co. v. Boyd, 141 Miss. 593, 598, 107 So. 1; Davis v. Price, 133 Miss. 236, 97 So. 557; Wells v. Robinson Bros. Motor Co., 153 Miss. 451, 121 So. 141; Craft v. Magnolia Stores Co., 161 Miss. 756, 764, 138 So. 405; Louisville & N. R. Co. v. Corlander, 129 Miss. 24, 91 So. 699; Hahn v. Owens, 176 Miss. 296, 168 So. 622; Thomas-Kincannon-Elkin Drug Co., Inc. v. Hendrix, 175 Miss. 767, 168 So. 287; Canton Cotton Warehouse Co. v. Pool, 78 Miss. 147, 28 So. 824; Burke v. Shaw, 59 Miss. 443; American Railway Express Co. v. Wright, 128 Miss. 593, 91 So. 342; Western Union Telegraph Company v. Stacey, 162 Miss. 286, 139 So. 604.

39 C. J. 1307, correctly states the applicable principle, to-wit: "So to render the master liable the authority need not be express but may be implied from the nature of the employment; and it matters not whether the act of the servant is due to a lack of judgment, infirmity of temper, or the influence of passion, or that the servant goes beyond his strict line of duty and authority in inflicting such injury, or even that he disobeyed the master's instructions. On the other hand, if the assault was committed by the servant, not as a means or for the purpose of performing the work he was employed to do, but in a spirit of vindictiveness or to gratify personal animosity, or to carry out an independent purpose of his own, then the master is not liable."

Argued orally by Bert Jones, for appellant, and by Pat Eager, for appellee.

OPINION

Ethridge, P. J.

F. T. Tarver, the appellant, was plaintiff in the court below and brought suit against J. W. Sanders Cotton Mill, Inc., and Ben Harris, an individual who was night-watchman at the mill of the defendant J. W. Sanders Cotton Mill, Inc. It was alleged in the bill that the J. W. Sanders Cotton Mill, Inc., owns a large tract of land at Magnolia, Mississippi, on a part of which the mill is located; that the mill and the outlying warehouses and offices are surrounded by a heavy steel wire fence, about 10 feet high, and that on the south of the mill there is a spur railroad track which extends from said mill southeasterly across the land of the defendant J. W. Sanders Cotton Mill, Inc., to the tracks of the Illinois Central Railroad Company, and that at the point where said spur track intersects said wire fence on the south there is a large double gate, which, when open, leaves a space wide enough for railroad cars to enter the enclosed premises; that south of the said wire fence there is a path or roadway which extends across the premises of the J. W. Sanders Cotton Mill, Inc., leading to the houses of the employees of the said J. W. Sanders Cotton Mill, Inc., and that the said path or roadway crosses said spur track just a few feet south of the double gate; and that this path or roadway is used, with the knowledge and consent of said corporation, by the employees and also by members of their families and the general public at all times of the day and night in going to and from points south of the said mill to the business sections of Magnolia.

That on the night of the 26th of February, 1939, the defendant Ben Harris was employed by the defendant J. W. Sanders Cotton Mill, Inc., in the capacity of night-watchman, and among other duties of the said Ben Harris, as night-watchman, was the duty of preventing all persons not entitled to be within the enclosed premises of said Cotton Mill at night from entering said premises,...