Western Union Telegraph Co. v. Stacy

• Decision Date: 23 February 1932
• Docket Number: 29235
• Court: Mississippi Supreme Court
• Parties: WESTERN UNION TELEGRAPH Co. et al. v. STACY

139 So. 604

162 Miss. 286

WESTERN UNION TELEGRAPH Co. et al. v. STACY

No. 29235

Supreme Court of Mississippi

February 23, 1932

Division A

1. ASSAULT AND BATTERY.

In action for assault and battery, liability of defendant held for Jury.

2. ASSAULT AND BATTERY.

In action for assault and battery, burden of proof on plea of self-defense is on defendant.

3. ASSAULT AND BATTERY.

As regards liability for assault and battery, agent of telegraph company calling at office of sender of misdelivered telegram to obtain receipt for money returned to seller held trespasser after request to leave.

4. ASSAULT AND BATTERY.

As regards liability for assault and battery, plaintiff had right to eject trespasser, provided no more force was used than was proper to accomplish purpose.

5. TELEGRAPHS AND TELEPHONES. Visit of telegraph company's agent to office of sender of misdelivered telegram to obtain receipt for money returned held not within employment; hence telegraph company was not liable for assault and battery.

The visit was not made in course of employment, since obligation of telegraph company to sender of misdelivered message had been discharged by return of price of telegram, and the occasion of the agent's visit to the sender's office was to secure a receipt, not for benefit of telegraph company, but in order that agent might have a receipt as a voucher, in settlement with his employer showing that he had discharged its obligation to the sender.

6. MASTER AND SERVANT.

Where evidence is not conflicting, whether assault and battery by agent was committed within course of employment is for court.

7. MASTER AND SERVANT.

Master is not liable for servant's tort committed while engaged in his own private business.

HON JNO. F. ALLEN, Judge.

APPEAL from circuit court of Grenada county HON. JNO. F. ALLEN Judge.

Action by F. A. Stacy against the Western Union Telegraph Company and G. C. Harris. Judgment for plaintiff, and defendants appeal. On plaintiff's suggestion of error.

Suggestion of error sustained; judgment in 132 So. 561, set aside affirmed as to G. C. Harris, and reversed and judgment rendered for the Western Union Telegraph Company.

Affirmed as to Harris; reversed, and judgment for Western Union Telegraph Company.

F. R. Stark, of New York City, and Jas. Stone & Sons, of Charleston, for appellants.

It is perfectly clear in the record that appellant Harris only sought to protect himself and that a directed verdict should have been given in his favor. Of course a directed verdict in favor of appellant Harris would result in a directed verdict in favor of appellant Western Union Telegraph Co.

Jamison v. Mosely, 69 Miss. 468, 10 So. 582; Davis v. George, 124 Miss. 808, 87 So. 274; Stamps v. Polk, 143 Miss. 551, 108 So. 729.

The record shows that at the time of the trouble the appellant Harris was not acting within the scope of his employment nor was he engaged in any business for the appellant corporation.

McDermott v. American Brewing Co., 105 La. 124, 21 So. 498, 38 Am. St. Rep. 225, 52 L. R. A. 684; Steinman v. Baltimore Antiseptic Steam Laundry Co., 109 Md. 62, 71 A. 517, 21 L. R. A. (N. S.) 884; Matsuda v. Hammond, 77 Wash. 120, 137 P. 328, 51. L. R. A. (N. S.) 920; Hardman v. Williams, 150 Ala. 415, 43 So. 726, 10 L. R. A. (N. S.) 653.

If we say that the business on which appellant Harris went to the office of appellee was the business of appellant corporation then, the business of appellant corporation had been concluded before the alleged assault and under the facts of this record a verdict against appellant corporation cannot be allowed to stand.

Am. Ry. Exp. Co. v. Wright, 128 Miss. 593, 91 So. 342; Wells v. Robinson Bros. Motor Co., 153 Miss. 451, 121 So. 141.

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.

Wells v. Robinson Bros. Motor Co., 153 Miss. 458.

S. C. Mims, Jr., and Cowles Horton, both of Grenada, for appellee.

If the jury had the right to find, as it did, in this case that the conduct of the servant was within the scope of his employment and about the master's business, the master is just as liable as is the servant for that conduct.

Richberger v. Am. Ry. Exp. Co., 73 Miss. 161; Barmore v. R. R. Company, 85 Miss. 426; Walters v. Cotton Mills, 136 Miss. 361; Express Co. v. Womble, 103 Miss. 481; Hines v. Green, 125 Miss. 494, 496; Primos v. Laundry Co., 157 Miss. 770; Wise v. Peugh, 140, Miss. 479; Railway Co. v. Brooks, 69 Miss. 185.

If the company were not liable originally it became so by ratifying the servant's conduct.

Pullman Co. v. Lawrence, 74 Miss. 807; Pullman Co. v. Alexander, 117 Miss. 353.

If appellee had struck Harris and had claimed in justification of the blow the language used by Harris it would have been a question for the jury to say, under our statute, whether appellee was or was not justified in so doing.

Miss. Code 1930, sec. 1282; Wicker v. State, 107 Miss. 691; Wood v. State, 64 Miss. 761.

Section 1282, Code 1930, applies in a civil as well as in a criminal case.

Choate v. Pierce, 126 Miss. 209; Stone v. Heggie, 82 Miss. 410; Lizana v. Lang, 90 Miss. 469.

Appellee had the right to direct Harris to "get out" and, when the latter resisted, to eject him by force, provided he used no more force than the jury found to be proper.

2 R. C. L. 557; 3 Cyc. 1045; Ayers v. State, 60 Miss. 713; Cotton v. State, 135 Miss. 792.

If it were a good defense to the suit that appellee struck the first blow the burden would be on Harris to prove his plea of justification.

Jamison v. Moseley, 69 Miss. 478, 484; 2 R. C. L. 565; 3 Cyc. 1087; Pendleton v. Railroad Company, 16 A. L. R. 761, 90 Miss. 474.

It cannot be said that a man on his own premises seeks a difficulty with a trespasser whom he attempts to evict therefrom, or to restrain from an unwarrantable injury to or control over his property.

Ayers v. State, 60 Miss. 713.

Appellee had the perfect right to eject Harris.

Cotton v. State, 135 Miss. 792.

Unless Harris was "free from all fault in bringing on the difficulty" he cannot be heard to say that he struck appellee in self-defense, especially so when, under all the authorities he became a trespasser by refusing to leave the office.

King v. Weaver, 157 Miss. 81.

Argued orally by Phil Stone for appellant.

OPINION

McGowen, J.

This case, pending upon a suggestion of error, is reported in 132 So. 561. The opinion therein, in which the writer was the organ of the court, is withdrawn, and the following is adopted as the opinion of the court:

The appellee, Stacy, filed his declaration against the Western Union Telegraph Company and G. C. Harris, the appellants, seeking to recover damages on an allegation that, as the agent of the Western Union Telegraph Company, and while in the discharge and furtherance of its business, Harris "did unlawfully, wantonly, willfully and without cause or provocation, strike and assault plaintiff and did abuse and insult plaintiff, and did charge plaintiff with being 'cheap.'" The declaration further charged, in effect that the action of Harris, as the agent of the telegraph company, was an unlawful effort to secure a release of a claim which Stacy had against the Western Union Telegraph Company that Harris, the agent, was a trespasser upon the premises of Stacy at the time of the difficulty.

The telegraph company, one of the appellants, filed pleas of the general issue, and Harris filed a special plea to the effect that he acted in self-defense.

The case was submitted to a jury, the appellee recovered a verdict for one thousand dollars, and the court entered judgment accordingly.

The essential facts are these: Dr. Stacy delivered to the telegraph office a telegram which was "misdelivered," for the sending of which he paid the company thirty cents. When Harris, the agent of the company at Grenada, discovered the error, he sent a young lady employee to Dr. Stacy's office to settle the matter, supplying her with thirty cents of the company's money with which to refund to the doctor the amount paid by him for telegraphic service, and also with a release showing the payment of thirty cents, to be signed by the doctor, the release undertaking to relieve the company from any damage other than the price of the message. The young lady paid the thirty cents to Dr. Stacy, a dentist, at his office, but he declined to sign the release.

According to the testimony of Harris, it was necessary that he, as the agent of the company, should have this release to use in his settlement with the company, or else the latter would require him to account therefor. On learning of Dr. Stacy's refusal to sign the release, Harris went to the former's office, presented the release, and requested and urged the doctor to sign the same. The testimony in that connection is as follows:

"'Doc I want you to sign these papers' and I (Dr. Stacy) says 'Mr. Harris, I told the young lady I wouldn't sign them, and I don't mean to sign them,' and he (Harris) says, 'You know we all make mistakes,' and I says 'Yes, and we ought to try to correct them,' and he demanded--I call it demanding--me to sign it; he asked me the third time to sign it, and I told him that I would not sign the papers. . . . He just stepped back and said 'If you are that damn cheap I will just give you the thirty cents.' I says 'Young man who invited you in my office,' and he says 'Nobody,' and I says 'Will you get out?' and he says 'You are not man enough to put me out' and when he said that I removed my glasses and took him by...