Wells Fargo & Co., Express v. Alexander
| Decision Date | 15 November 1920 |
| Docket Number | 242 |
| Citation | 225 S.W. 597,146 Ark. 104 |
| Parties | WELLS FARGO & COMPANY EXPRESS v. ALEXANDER |
| Court | Arkansas Supreme Court |
Appeal from Ouachita Circuit Court; George R. Haynie, Judge reversed.
Judgment reversed and cause remanded.
Mehaffy Donham & Mehaffy, for appellant.
The court's instructions were erroneous as given, and it was error to refuse No. 7 for appellant.
According to the undisputed evidence, it does not appear that O'Neal was acting in the line of his duty as agent when he made the assault. The court should have directed a Verdict for appellant under the testimony. 93 Ark. 397; 75 Id. 579; 77 Id. 606. The master is not liable for the acts of his servant that are beyond the scope of his employment. Cooley on Torts, 627; 33 Neb. 582; 83 Ark 193; 4 Labatt on Master and Servant, § 1466; 113 P. 386; 111 Ark. 208; 26 Cyc. 1527.
The act must not only be done while the servant is engaged in his master's service, but it must pertain to the particular act of that employment. 40 Ark. 323; 111 Id. 208. See, also, 18 So. Rep. 292; 42 Ark. 542; Cooley on Torts, p. 538. These authorities show that O'Neal acted beyond the scope of his authority and employment and appellants are not bound. None of the cases cited by appellee are applicable here.
W. R. Duffie and Powell & Smead, for appellee.
1. The evidence shows that O'Neal was the agent of the express company, and it was part of his duty to protect it from loss; he was under bond for the faithful performance of his duties. The instructions were really more favorable to appellant than they had a right to ask. The testimony is conclusive that O'Neal was the agent of the express company and that he was acting for his principal and within the scope of his apparent or real agency, and the principal is liable for his tort, whether authorized or not. 75 Ark. 579; 96 Id. 358; 62 Id. 109; 42 Id. 542.
2. If the instructions assumed that O'Neal was the agent of the express company, the assumption was clearly warranted by the evidence, and there were no errors in them, given or refused. 90 Ark. 524; 91 Id. 97. See, also, 131 Ark. 411; 132 Id. 282; 75 Id. 579; 62 Id. 109; 96 Id. 258; 75 Id. 579.
This is an action instituted by appellee to recover damages arising from an assault committed by one O'Neal, alleged to be the agent of the two express companies who were defendants below, and who have prosecuted this appeal from the judgment rendered against them.
The express companies occupied, as a storage room and office, the baggage room of the St. Louis, Iron Mountain & Southern Railway Company at Malvern, Arkansas. The railway company erected a new passenger station at Malvern and prepared in the building a room for the use of the express companies. On February 23, 1916, the day the assault on appellee was made by O'Neal, the building had been completed except some inside finishing (carpentry work and painting) in the room to be occupied by the express companies. Neither the railway company nor the express companies had moved in, but were using the old station a short distance away. The proof adduced at the trial tended to show, however, that express matter, a package or crate of bananas and a box of vegetables, had been put into this room by O'Neal. The companies did not take possession of the new building until March 1, 1916. O'Neal had a key to the new express room which he turned over to the carpenter and painter in the morning, and it was returned to him at night. The workmen were employed by Nunn, who contracted to construct the building; and O'Neal received the key from a carpenter working under Nunn. Jones was the joint agent of the railway company and the express companies, and he employed O'Neal as helper or clerk. His duties, with reference to the express business, were to receive and deliver express matter and to keep the books. While the carpenters were at work in the new express room, appellee was invited into the room by them to join a party engaged in drinking whiskey, and appellee became intoxicated and went to sleep on a tool box. Others became intoxicated also and left the room in that condition. One of the workmen went out of the room to get a cup of coffee at a nearby restaurant, and as he returned O'Neal met him and demanded the key to the door. On receiving the key, O'Neal went into the room where appellee was asleep and assaulted him. The testimony tends to show that the assault was not provoked by appellee, and that O'Neal used excessive force in ejecting appellee from the room. The jury returned a verdict in appellee's favor and assessed damages in the sum of $ 1,000, which assessment was fully sustained by the testimony, if appellee is entitled to recover at all.
Numerous exceptions were saved to the rulings of the court in giving and refusing instructions, but we pass from them to a discussion of the vital question urged by counsel for appellants, as grounds for reversal, whether or not the testimony is sufficient to sustain the verdict. It is contended that, according to the undisputed evidence, it does not appear that O'Neal was acting in the line of his duty as agent of appellants when he made the assault on appellee.
This court has clearly stated the rules of law applicable to the facts of this case.
In St. L., I. M. & S. Ry. Co. v. Grant, 75 Ark. 579, we said that, if "the agent was acting for his principal and in pursuance of his real or apparent agency at the time the tort was committed, then it may be said that he was acting in the course of his employment, and the principal will be liable for such tort, whether authorized or not."
And in the case of Peter Anderson & Co. v. Diaz, 77 Ark. 606, 92 S.W. 861, we quoted with approval the following rule announced by the Supreme Court of Nebraska in the case of Davis v. Houghtelin, 33 Neb. 582:
"The test of the master's liability is not whether a given act was done during the existence of the servant's employment, but whether it was committed in the prosecution of the master's business."
A similar rule was announced by this court in the case of Little Rock & Fort Smith Rd. Co. v. Miles, 40 Ark. 298, where it was said:
"The act must be done not only while the servant is engaged in his master's service, but it must pertain to the particular act of that employment."
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