Trico Coffee Co., Inc. v. Clemens

• Decision Date: 04 December 1933
• Docket Number: 30830
• Court: Mississippi Supreme Court
• Parties: TRICO COFFEE CO., INC., et al. v. CLEMENS

151 So. 175

168 Miss. 748

TRICO COFFEE CO., INC., et al. v. CLEMENS

No. 30830

Supreme Court of Mississippi

December 4, 1933

Division A

1 AUTOMOBILES.

Employer held liable for willful and wanton acts resulting in injury to boy whom driver of truck had invited to ride thereon (Code 1930, section 5569).

2 AUTOMOBILES.

Driver of motor vehicle need not be actuated by ill will toward person injured to make act willful and wanton; it being entire lack of care and indifference to consequences of act which makes out case of "willfulness."

3. MASTER AND SERVANT.

Principle of respondeat superior applies to master in case of injury as result of willful and wanton act of employee.

HON. J Q. LANGSTON, Judge.

APPEAL from circuit court of Pearl River county HON. J. Q. LANGSTON, Judge.

Action by Eddie Clemens, by next friend, against the Trico Coffee Company, Inc., and another. Judgment for plaintiff, and defendant named appeals. Affirmed.

Affirmed.

T. J. Wills, of Hattiesburg, for appellant.

Slaydon, the driver, in picking up the little negro, was not acting within the scope of his authority nor in the furtherance of the master's business in turning aside from the business engaged in and asking the little negroes if they wanted to ride and telling them to get on that he wanted to cut their necks off and have some fun with them anyway. He abandoned the master's business and and engaged upon an enterprise of fun and pleasure of his own.

Canton Cotton Warehouse Co. v. Pool, 78 Miss. 147, 28 So. 823; I. C. R. R. Co. v. Green, 130 Miss. 622, 94 So. 793; Southern R. R. Co. v. Garrett, 136 Miss. 219, 101 So. 348; Walker v. Fuller, 112 N.E. 230; Western Union Telegraph Co. v. Stacy, 162 Miss. 286, 139 So. 604; American Railway Express Co. v. Wright, 128 Miss. 593, 91. So. 342.

Our court has gone so far as to hold that the master is not liable for torts committed in the furtherance of his business unless it is shown that it was committed in the course of the appointed duties of the servant.

Davis v. Price, 133 Miss. 236, 97 So. 557; Craft v. Magnolia Stores Co., 161 Miss. 756, 138 So. 405.

The master had forbidden Slaydon from permitting people to ride. In permitting these boys to ride he was not acting within the scope of his employment or doing anything to further the master's interest.

Rolfe v. Hewitt, 125 N.E. 804; Collins et al. v. Burkett, 101 So. 581.

Hathorn & Williams, of Poplarville, for appellee.

It is elementary that if appellant consented, expressly or impliedly, to its agent inviting people to ride on its truck that it was liable for the injury inflicted upon appellee.

39 C. J. 1265, par. 1447.

Similar to the rule stated in 39 C. J., supra, is the rule that the master is liable for the negligence of his servant where he retains such servant in his service after knowledge that he is violating the instructions of the master.

Keyser Canning Co. v. Klots Throwing Co., 118 S.E. 521, 31 A. L. R. 283.

It is also all elementary principle of law that where the rules and regulations established by the master are disobeyed with the knowledge of the master, and the employee disobeying such rules is continued in the service of the master, such rules and regulations will be regarded as waived, and the master cannot rely upon them to defeat an action by an injured employee.

White v. Railroad Co., 16 So. 248; Loper v. Y. & M. V. R. R. Co., 145 So. 743; Hardy v. Turner-Love Co., 101 So. 489; 39 C. J. 477, par. 591; Hamilton Bros. Co. v. Weeks, 124 So. 798; Hogle v. Franklin Mfg. Co., 92 N.E. 794, 32 L. R. A. (N. S.) 1038; Fletcher v. Baltimore Railroad Co., 168 U.S. 135, 42 L.Ed. 411; Teche Lines v. Bateman, 162 Miss. 404, 139 So. 159.

Appellant's agent was in complete control of said truck and in the handling of said truck was the company itself.

Henry v. Miss. Power & Light Co., 146 So. 857; Teche Lines v. Bateman, 162 Miss. 404, 139 So. 159; Higbee Co. v. Jackson, 128 N.E. 61, 14 A. L. R. 131; Kalmich v. White, 111 A. 845.

If it were conceded that appellee was a trespasser on said truck, then under the evidence in the case there is no escape from the conclusion that appellant is liable for the injuries caused to appellee by its said agent.

Higbee Co. v. Jackson, 128 N.E. 61, 14 A. L. R. 131; Kalmich v. White, 111 A. 845; Fuller v. I. C. R. Co., 56 So. 783; Railroad Co. v. Harrison, 61 So. 655; Railroad Co. v. Mann, 102 So. 853; Railroad Co. v. Lee, 114 So. 867; Jamison v. Railroad Co., 63 Miss. 33; Railroad Co. v. Kelly, 88 So. 707; Edward Hines Yellow Pine, Trustees, v. Holley, 106 So. 822; Rogers v. Lewis, 144 So. 373.

The authorities are uniform in holding that, to constitute willful or wanton negligence, it is not necessary to show ill will toward the person injured, but an entire absence of care for the life, person, or property of others which exhibits indifference to consequences makes a case of constructive or legal willfulness. A complete indifference to consequences distinguishes wrongs caused by wantonness and recklessness from torts arising from negligence.

Heidenreich v. Bremmer, 260 Ill. 439, 103 N.E. 275; Bolin v. Chicago, St. P. M. & O. R. Co., 108 Wis. 333, 81 Am. St. Rep. 911, 84 N.W. 446; Louisville, N. A. & C. R. Co. v. Bryan, 107 Ind. 51, 7 N.E. 807; Freeman v. United Fruit Co., 223 Mass. 300, 111 N.E. 789; Kalmich v. White, 111 A. 845; Davies v. Mann, 10 M. & W. 545; Fuller v. Railroad Co., 56 So. 783; Y. & M. V. R. R. Co. v. Daily, 127 So. 575.

Surely the fact that appellee was told to get on the running board of the truck did not destroy his right to receive the same care at the hands of appellant that the law would have exacted of appellant if appellee had been a rank trespasser.

Argued orally by T. J. Wills, for appellant, and by F. O. Hathorn, for appellee.

OPINION

McGowen, J.

Eddie Clemens, a minor, nine years of age, by his next friend, recovered a substantial judgment in an action at law aganist the Trico Coffee Company, Inc., and Morris Slaydon, from which judgment the appellant, Trico Coffee Company, only, appeals.

The sole point presented by the appellant here is that the court was in error in not granting it a peremptory instruction.

The record discloses that the appellant company was engaged in the business of selling coffee and other groceries from an inclosed truck in which were stored articles of merchandise. Slaydon was a salesman of the appellant company whose duty it was to drive the truck on a certain route, and sell and deliver its groceries. The operation of appellant's business, to a large extent, involved the use of a much-traveled highway. On the afternoon of the day of the injury, Slaydon was driving to Carriere, Mississippi, for the purpose of replenishing his stock of merchandise, and wanted to reach there before the depot closed for the day. While en route he passed two little negro boys about nine years of age, one of whom was the appellee, and invited them to ride with him, placing one of them on the right-hand side of the car, on the running board, and the other on the left-hand side, holding to a spare tire attached to the truck. In that situation he drove the truck down hill on a public highway at a greater rate of speed than forty-five miles an hour. There was a culvert with a broken end on the side of the road on which he was driving, and in order to pass on-coming motor vehicles before they reached this culvert, he speeded up his car to cross it, and in doing so swerved his car suddenly to avoid the hole in the culvert, and then swerved back in order to avoid the on-coming automobiles, which caused the little boy's hold on the spare tire to loosen, thereby causing him to be thrown violently to the road, and injured.

The evidence discloses that the manager of the appellant company, before this accident occurred, had reprimanded the driver for allowing people to ride on the truck, and forbade his doing so again; whereupon the latter responded, in effect, that he would continue to ride his customers and friends when he pleased. To this answer the manager responded, "You heard me."

There is no complaint as to the amount of the verdict, nor as to anything else, except the refusal by the court of the peremptory instruction asked by the appellant.

There is no question as to Slaydon, the driver of the truck, being the servant, and the appellant company the master, in this case. There is no dispute as to any material fact in the case. Hence we are of opinion that the appellant was not, under any view of the case, entitled to a peremptory instruction.

The contention is that the little negro boy was a trespasser as to the master, the appellant coffee company, even if the driver had invited him to ride; and, if so, under the circumstances of the case, the master owed the appellee no duty. In support of that contention, counsel for appellant say that in permitting the little boy, on invitation, to ride on the running board of the truck, the driver was not acting within the scope of his authority, or in the furtherance of his master's business, that the driver, the servant turned aside from the master's business in so doing for his own pleasure, citing Canton Cotton Warehouse Co. v. Pool, 78 Miss. 147, 28 So. 823, 84 Am. St. Rep. 620, in which case the servants of the warehouse company planned to frighten Pool by the slamming of the coal scoop of the master on the iron stairs of the factory, the shutting off of steam usually self-regulated by the automatic air pump, the turning out of electric lights, and by yelling, and the court held that these acts were not done in pursuance of the master's business; the inquiry being, not whether the act in question was done while the servant was engaged about the master's business,...