Walters v. Stonewall Cotton Mills

• Decision Date: 20 October 1924
• Docket Number: 24295
• Citation: 101 So. 495,136 Miss. 361
• Court: Mississippi Supreme Court
• Parties: WALTERS v. STONEWALL COTTON MILLS. [*]

101 So. 495

136 Miss. 361

WALTERS v. STONEWALL COTTON MILLS. ^[*]

No. 24295

Supreme Court of Mississippi

October 20, 1924

Division A

1. MASTER AND SERVANT. Rule stated as to liability of private employers or police officers for their injury of others.

Where persons, natural or artificial, with the consent of the state, employ police officers to represent them in protecting and preserving their property and maintaining order on their premises, and such officers are engaged in the furtherance of their duties acting within the scope of their powers, they become and are the servants of such private persons and corporations, and for any negligent or wanton acts committed by them in the line of their duties to the injury of others their employers are liable.

2. MASTER AND SERVANT. Whether deputy sheriff employed by mill company to enforce law acted as servant of company held for jury.

In an action against a cotton mill company for an alleged unlawful assault upon the plaintiff committed by a deputy sheriff in the performance of his official duties, where the property officers, and mill hands of such cotton mill company constituted substantially all the property and inhabitants of an unincorporated village, and the company employed the deputy sheriff to police the village and arrest and prosecute violators of the criminal laws of the state committed therein and paid him a salary for his services to supplement the perquisites of his office, which salary constitute his principal compensation, it was a question for the jury whether the deputy sheriff in the performance of his duties acted primarily as an officer or as the servant of the cotton mill company.

3. MASTER AND SERVANT. That servant's wrongful act in furtherance of master's business was unauthorized or contrary to instructions does not relieve master from liability.

In order to hold the master liable for the wrongful act of his servant it is not necessary to show that the act in question was either expressly or impliedly authorized by the master. If the servant, when he committed the wrongful act, was acting in furtherance of the master's business, for which he was employed, the master is liable, although the servant in doing the act, contrary to the instructions of the master went beyond his authority.

4 EVIDENCE. Offering party may have evidence susceptible of two interpretations submitted to jury to determine truth.

Where the evidence of a witness is susceptible of two interpretations, one favorable to the party offering him, the other unfavorable, the offering party is not barred from the use of such favorable evidence; he has the right to have all the evidence submitted to the jury, who will determine which of the varying statements of the witness is true.

5. PRINCIPAL AND AGENT. Declarations of alleged agents off witness stand cannot be testified to by others to show agency and its scope; alleged agent can testify as to his agency and scope thereof.

The principle that neither agency nor the scope thereof can be proven alone by declarations of the agent means that the declarations of the agent off of the witness stand cannot be testified to by others in order to show the agency and its scope. The alleged agent can be put upon the witness stand as any other witness for the purpose of proving both his agency and the scope thereof.

6. MASTER AND SERVANT. Evidence of extent of authority exercised by mill company in village held admissible on issue of whether police officer, in assaulting plaintiff, acted as its servant.

On the issue of whether or not a person committing an unlawful assault upon the plaintiff was acting as a police officer or as the servant of the defendant, a cotton mill corporation evidence tending to show the extent of authority exercised by the defendant in and about the village, of which its plant, officers, and mill hands constituted the larger part of the property and inhabitants of such village, is admissible.

HON. C. C. MILLER, Judge.

APPEAL from the circuit court of Clarke county, HON. C. C. MILLER, Judge.

Suit by Edgar E. Walters against the Stonewall Cotton Mills. From a judgment for defendant, plaintiff appeals. Reversed and remanded.

Reversed and remanded.

Floyd & Easterling, for appellant.

The court erred in excluding all of the plaintiff's evidence and directing a verdict for the defendant. The precise question involved was (1) whether or not Nicholson was an employee of the defendant company, the appellee here, and (2) whether or not in committing the injury complained of he was acting within the scope of his employment. If the evidence shows these facts, or tends to prove these facts, or if the facts proven and the legitimate inferences and deductions drawn therefrom tend to prove these facts, the case should have been submitted to the jury, and the action of the court in excluding the evidence was error.

On the question of the liability of the master for the act of a servant, who claims to have been acting as special police officer or deputy sheriff, we refer the court to 18 B. C. L., page 768, section 246, and authorities cited in the note.

The record evidence demonstrates beyond a reasonable doubt that at the time of the assault the said Nicholson was in the employ of the said Stonewall Cotton Mills to keep the peace, and that in ordering the appellant and his companions from the premises of the Stonewall Cotton Mills he was acting in the line of his employment and in the scope of his duty, and his acts were the same nature and character as that shown to have been performed by him prior thereto, and evidently which all understood to have been the very purpose for which he was employed. This being true we cannot conceive upon what theory the plaintiff's evidence was excluded. Authorities announcing the law applicable include: Sharp v. Erie Railroad Company, 184 N.Y. 100, 6 Am. & Eng. Anno. Cases, 350; 1 Thomas on Negligence, 673; 1 Thompson on Negligence, secs. 615, 616; Magar v. Hammond, 183 N.Y. 387, 76 N.E. 474. See also the note to the Sharp v. Erie R. R. Company, supra, 6 Am. & E. Ann. Cases, pages 252, 253; King v. Illinois Central Railroad Company, 69 Miss. 245, 10 So. 42; Rand v. Butte Elec. Ry., 40 Mont. 398, 107 P. 87; Conchin v. El Paso & S.W. R. R. Co., 108 P. 260, 28 L. R. A. (N. S.) 88; Milton v. Mo. Pac. R. R. Co., 4 L. R. A. (N. S.) 282 and notes. Smidt v. Vanderveer, 110 A.D. 758, 97 N.Y.S. 441; Ploof v. Putman, 26 L. R. A. (N. S.) 27, 75 A. 277; Johnson v. Chicago, St. Paul M. & O. Ry. Co., 130 Wis. 492, 110 N.W. 424; New Ellersie Fishing Club v. Stewart, 123 Ky. 8, 9 L. R. A. (N. S.) 475; Grant v. Singer Mfg. Co., 190 Mass. 489, 6 L. R. A. (N. S.) 567.

The law touching the liability of a master for the tort of a servant acting within the scope of his authority is discussed with some wealth of detail in Barnum v. V. S. & P. R. R. Co., 85 Miss. 426, 70 L. R. A. 627. See, also, Field v. Lancaster Cotton Mills, 11 L. R. A. (N. S.) 823; McKain v. B. & O. R. R. Co., 23 L. R. A. (N. S.) 289, and extensive note thereunder; Dixon v. Waldron, 135 Ind. 507, 41 Am. State Rep. 440, 35 N.E. 1, 24 L. R. A. 483.

II. But we submit that the record in this case fails to show that J. T. Nicholson was a deputy sheriff. He claimed to be acting as a special deputy sheriff, but we submit that "there is no such animal." Under the law a deputy sheriff is a public officer, and under section 3081 of Hemingway's Code, every sheriff has the power to appoint one or more deputies. But every such appointment must be in writing, and after he is appointed, in writing, by the sheriff, such deputy, before he enters on the duties of his office, shall take and subscribe the oath to faithfully execute the office of deputy sheriff according to the best of his skill and judgment, and it is provided that the appointment as deputy, with a certificate of the oath, shall be filed and preserved in the office of the clerk of the board of supervisors. By reference to the testimony of the chancery clerk, who is also the clerk of the board of supervisors, the court will see that there was no such appointment in writing. No oath or bond was ever filed by Nicholson.

III. The evidence in this case shows that for the full space of one year after this unprovoked assault on the part of Nicholson he was not discharged by the company, but he was still continued in the employment of the company, and they were still carrying his name on the pay roll.

Under the authority of Pullman v. Alexander, 117 Miss. 348, 78 So. 293, the jury would have been justified in inferring a ratification of the agent's wrongful and abusive conduct by the principal from the fact that the servant was continued in the employment of the principal after notice of the commission of the willful wrong.

Upon a motion to exclude all of the testimony, not only the facts expressly testified to, but all inferences necessary and logically to be deducted therefrom are to be taken as true in favor of the parties against whom such motion is interposed. Alexander v. Zeigler, 84 Miss. 560, 36 So. 536; Fore v. A. & B. Ry. Co., 87 Miss. 211, 39 So. 493 and 690; State v. Spengler, 74 Miss. 129, 21 So. 4; I. C. R. R. Co. v. Beems, 70 Miss. 11, 12 So. 23; Anderson v. Telephone etc., 86 Miss. 341, 38 So. 786.

If it is considered the evidence in the instant case made out a prima-facie case for the plaintiff, the motion to exclude should not have been allowed. Rhymes v. Jackson & Eastern R. R. Co., 85 Miss. 140, 37 So. 708; Bell v Southern Ry. Co., 94 Miss. 440, 49 So. 120; Skipwith v. Mobile & Ohio R. R. Co., 95 Miss. 50, 48 So. 964; Byers v. McDonald, 99 Miss. 42, 54 So. 664; Roman v. Vicksburg, etc., 39 So. 781; Power Company v. N. O. & N.E. R. R. Co., 40 So. 65; Ellige v. Gray, 41...