Wells v. Robinson Bros. Motor Co.

• Decision Date: 25 March 1929
• Docket Number: 27798
• Citation: 153 Miss. 451,121 So. 141
• Court: Mississippi Supreme Court
• Parties: WELLS v. ROBINSON BROS. MOTOR CO. [*]

121 So. 141

153 Miss. 451

WELLS v. ROBINSON BROS. MOTOR CO. ^[*]

No. 27798

Supreme Court of Mississippi

March 25, 1929

Division A

1. MASTER AND SERVANT. Employer was not liable for assault on another by employee acting without scope of employment unless ratifying act.

Employer was not liable for unauthorized act of employee in assaulting another while acting wholly without scope of authority and employment, unless ratifying act by subsequent conduct.

2. MASTER AND SERVANT. Mere retention of employee after unauthorized assault on another was not ratification rendering employer liable for unauthorized act.

Mere retention of employee after assault on another, while acting without scope of authority and employment, was insufficient in itself to constitute ratification so as to render employer liable for unauthorized act, though fact of such retention of employee may be admitted in evidence as bearing on ratification.

HON. W H. POTTER, Judge.

APPEAL from circuit court of Hinds county, First district, HON. W. H. POTTER, Judge.

Suit by G. E. Wells against the Robinson Bros. Motor Company. Judgment for defendant, and plaintiff appeals. Affirmed.

Judgment affirmed.

J. P. and A. K. Edwards and H. Cassidy Holden, for appellant.

The majority rule is that the retention of the servant in the employ of the master after the commission of the wrongful act is sufficient proof of ratification. Some few courts hold otherwise, but the supreme court of Mississippi has adopted the majority rule by its decision in the case of Pullman Co. v. Alexander, 117 Miss. 348, 78 So. 293, wherein it is held that ratification by the principal of the agent's wrongful act may be shown by the fact that the servant is continued in the employment of the principal after notice of the commission of the wilful wrong.

In the instant case the plaintiff testified that Runnels was continued in the employment of the defendant after the assault and was still so employed at the time of the trial, although the sales manager knew of the assault and condemned it in a conversation with the plaintiff.

It is held in Railway Co. v. Garrett, 136 Miss. 219, 101 So. 348, that the master is liable for the wilful and malicious acts of the servant, although such acts are outside the scope of the servant's employment, if such acts have been expressly directed to be done or subsequently ratified after they are done. See R. R. Co. v. Green, 130 Miss. 622, 94 So. 793; 39 C. J. 1266; Exum v. Brister, 35 Miss. 391; 18 R. C. L. 801.

F. J. Lotterhos, for appellee.

To permit Runnels to remain employed as a salesman under the circumstances of this case is in no sense a ratification of his conduct and does not make the appellee liable because of it. 39 C. J. 1266.

The case of Exum v. Brister, 35 Miss. 391, cited by appellant, did not involve the question of whether retaining an employee in service amounted to a ratification. The case has no bearing on the point here involved.

The quotation made by appellant from 18 R. C. L. 801, refers to the question of punitive damages and does not go so far as to state that a mere retention in employment would make a master responsible for acts done by his servants in a case where the act itself was not one for which the master was liable. The same paragraph of Ruling Case Law concludes as follows:

"When there is no original liability for the act of a servant, because at the time of the negligence the servant was acting in his own personal business, the master does not become liable merely by reason of the fact that he thereafter retains the servant in his employ."

Appellant cites Pullman Co. v. Alexander, 117 Miss. 348, as holding that ratification of the agent's wrongful act may be shown by retention of the servant in the employment. This case involved the sole point of liability of the defendant for punitive damages. In the opinion it is stated that under the law of the state in which the cause of action arose, the master could not be held liable for punitive damages unless the master had authorized the wrongful act or ratified it. And it was solely with reference to holding the master liable for such damages, in accordance with the rule stated in appellant's quotation from Ruling Case Law hereinbefore referred to, that the court said that ratification of the agent's wrongful and oppressive conduct may be shown by the fact that the servant is continued in the employment. The decision of the case was actually in favor of the defendant because there was no showing that the Pullman Company had ratified the act. Therefore, the statement made by the court was a dictum not necessary in the decision of the case. But it is obvious that the rule as stated does not conflict with the principle that mere retention in employment is not sufficient to amount to a ratification for the purpose of holding the master liable for actual damages in a case where he was not liable in the first instance because the agent was acting beyond the scope of his authority.

The case of Railway v. Garrett, 136 Miss. 219, does not involve the question of retention in employment as a ratification. It merely states the rule that an act committed outside the scope of employment does not make the master responsible unless he directed the act to be done or ratified it. The case is conclusive as appellee sees it in requiring a peremptory instruction where the act of the agent complained of was personal to him and not within the scope of his employment.

OPINION

COOK, J.

The appellant, plaintiff in the court below, instituted this suit in the circuit court of the First judicial district of Hinds county against the appellee, seeking to recover damages for personal injuries alleged to have been inflicted in an assault and battery upon him by one Dyer Runnels, an employee and agent of the appellee, while the said Runnels was acting within the scope of his employment. At the conclusion of the plaintiff's testimony, the court below granted a peremptory instruction for the defendant on the theory that the evidence failed to show that Runnels was acting within the scope of his employment at the time he committed the assault and battery, and from the judgment and verdict entered in pursuance of this instruction this appeal was prosecuted.

The facts as shown by the evidence for the appellant were substantially as follows: The appellant was a student at Mississippi College, and with his wife resided at Clinton Mississippi, while his friend and neighbor, Dyer Runnels, was employed by the appellee as an automobile salesman. The appellant had placed an order with a Ford dealer for a Ford automobile, but the time when this automobile could be delivered was uncertain. Runnels, as the agent and salesman of the appellee, undertook to interest the appellant in the purchase of a Whippet automobile; but the appellant informed him that he preferred a Ford and had already placed an order to be delivered as soon as the new Fords were on the market. Finally, however, Runnels induced the appellant to accompany him to the office and show rooms of the appellee, where he was shown what Runnels represented to be the corresponding parts of the Whippet and Ford automobiles. By comparison, he attempted to convince the appellant that the Whippet parts were larger and superior to the Ford parts. The appellant testified that he informed Runnels that he knew nothing about the merits of the different parts, and that Runnels replied, "I could not afford to lie to you knowing you as I do, and if you catch me in any misrepresentation, we will give you a new Whippet automobile." Appellant further testified that, after inspecting these alleged parts, he practically decided to purchase a Whippet; that he then...