Thomas-Kincannon-Elkin Drug Co., Inc. v. Hendrix
| Citation | 175 Miss. 767,168 So. 287 |
| Decision Date | 25 May 1936 |
| Docket Number | 32242 |
| Court | United States State Supreme Court of Mississippi |
| Parties | THOMAS-KINCANNON-ELKIN DRUG CO., INC., v. HENDRIX |
MASTER AND SERVANT.
Retail drug store held not liable for injuries sustained by boy who sometimes delivered packages for drug store, who was called to drug store and given malted milk wherein drug store's employee allegedly had put in a laxative, where employee was employed only to sell soft drinks and there was nothing in evidence charging drug store with reason to suspect that employee would depart therefrom.
HON THOS. H. JOHNSTON, Judge.
APPEAL from circuit court of Lee county HON. THOS. H. JOHNSTON Judge.
Action by J. D. Hendrix, by next friend, against Thomas-Kincannon-Elkin Drug Company, Incorporated, and another. From a judgment for plaintiff, named defendant appeals. Reversed and dismissed as to named defendant.
Reversed and dismissed.
Blair & Anderson, of Tupelo, for appellant.
It is the contention of appellant that it is not liable in this case, because its employee, Clyde Smith, was not engaged about the business of appellant at the time of the alleged injuries, but that he was engaged about a private enterprise and prank of his own.
Canton Co. v. Poole, 78 Miss. 147.
We cannot see any difference in the facts of the Canton Warehouse case and that of the instant case. Clyde Smith was employed to mix and sell palatable drinks for the appellant but instead of that, he stepped aside from the purpose for which he was employed, concocted a drink containing twenty-four or twenty-five doses of Ex-Lax, which is injurious to the human body, and gave the same to appellee, resulting in his alleged suffering. The record shows that neither the appellant nor its officers knew anything about Clyde Smith's having done this until the next morning after it had been done.
L. & N. Ry. v. Douglas, 69 Miss. 723.
In order for the master to be liable under the doctrine of respondeat superior, three things must be necessary: the injury complained of must have been inflicted by an employee of the defendant; the employee in inflicting such injury must have been acting within the apparent scope, at least, of his employment; even where the employee who inflicts the injury is acting within the apparent scope of his employment, his act must be done in furtherance of his master's business and for the accomplishment of the purpose for which he is employed.
International, Etc. Co. v. Anderson, 82 Texas 516; Hudson v. Missouri Co., 16 Kans. 470; Little Miami v. Wetmore, 19 Ohio State, 110; Lakin v. Oregon Co., 15 Ore. 220; Wyllie v. Palmer, 137 N.Y. 248; Rudgeair v. Reading Co., 180 Pa. 333.
It seems to be a universal rule that where a servant steps aside from his master's business to engage in a prank, the relation of master and servant no longer exists, and the master is not liable for the wrongful act.
26 Cyc. 1538; 18 R. C. L. 796; 39 C. J. 1296, sec. 1492.
C. B. Hutchinson, of Tupelo, for appellee.
There can be no doubt but what an employer may be held liable civilly to a third person for the torts, negligence, frauds, deceits, concealments, misrepresentations, and other malfeasances or misfeasances of his employee.
The modern rule declares that the corporation is answerable, for the torts of its employees in the same cases and in the same manner and form of action as other employers.
The doctrine of the liability of the master for the. wrongful acts of his servant is predicated upon the maxims respondeat superior and qui facit per alium facit per se.
It is the contention of appellee that the lower court was correct in overruling the motion of appellant for a direct verdict for defendant, Thomas-Kincannon-Elkin Drug Co., Inc.
Where a servant steps aside from his master's business and does an act not connected with the business, which is hurtful to another, manifestly the master is not liable for such act, but if the servant continues about the business of the employer, adopts methods which he deems necessary, expedient or convenient, and the methods adopted prove hurtful to others, the employer is liable.
When the employee's wrongful act is one within the scope of his employment, both employer and employees must respond in damages.
18 R. C. L. 817; I. C. R. R. Co. v. Coley, 121 Ky. 385, 89 S.W. 234, 1 L. R. A. (N. S.), 370; Hill v. Caverly, 7 N.Y. 215, 26 Am. Dec. 735; Richberg v. American Express Co., 73 Miss. 161; Alabama & R. Co. v. Brooks, 69 Miss. 168, 13 So. 847, 30 Am. St. 528.
In order to escape liability for injuries to a third person it devolves upon the master to prove that the servant had abandoned...
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