White's Lumber & Supply Co. v. Collins

• Decision Date: 27 November 1939
• Docket Number: 33546
• Parties: WHITE'S LUMBER & SUPPLY CO. et al. v. COLLINS
• Court: Mississippi Supreme Court

191 So. 105

186 Miss. 659

WHITE'S LUMBER & SUPPLY CO. et al. v. COLLINS

No. 33546

Supreme Court of Mississippi

November 27, 1939

Editorial Note:

This Pagination of this case accurately reflects the pagination of the original published, though it may appears out of sequence.

October 2, 1939

APPEAL from the circuit court of Lauderdale county HON. ARTHUR G BUSBY, Judge.

Action by J. M. Collins against White's Lumber & Supply Company and another, for assault. From a judgment for plaintiff defendants appeal. Affirmed in part and reversed and remanded in part.

On suggestion of error. Suggestion of error overruled.

Affirmed as to Temple; reversed and remanded as to the White's Lumber & Supply Company. Suggestion of error overruled.

Gilbert & Cameron, of Meridian, for appellant, White's Lumber &amp Supply Co.

Peremptory instruction should have been granted appellant, Lumber Company, for the reason that Temple was not acting in the scope of employment, being on Sunday.

The fact that Temple was manager does not change the rule as he as such, had an employment scope; he was not the Company, he was merely a superior servant; the Company was a distinct entity from him; the Company was created by the state, he was named manager by the Company; he was the Company's servant.

A. L. I., Restatement, Agency, Sec. 479.

This is not a "fringe of time case" where a servant was working overtime.

A. L. I., Agency, sec. 233 (b).

The case does not fall within the rule holding common carriers liable for torts committed by operating railroads on Sunday, in violation of the Blue Laws.

60 C. J. 1133, Sec. 85, footnote 4(b); Jones v. Brantley, 121 Miss. 721, 8 A.L.R. 1353; Bowers v. Jones, 124 Miss. 57.

We find no case directly involving the point here but we submit that the principle invoked is implicit in the decisions of this court holding that the Sabbath is not to be violated, and the appellant Lumber Company should not be mulcted for the acts of its servants committed beyond the scope of their employment.

Testimony for the plaintiff was unreasonable and unbelievable.

The highly unsatisfactory nature of plaintiff's proof, from the standpoint both of the witnesses who gave it and the character of the proof itself, brings this case within the condemnation of a number of recent decisions of the Supreme Court of Mississippi.

C. & G. R. Co. v. Coleman, 172 Miss. 514; 160 So. 277; Y. & M. V. R. R. Co. v. Lamensdorf, 178 So. 80; Teche Lines v. Bounds, 179 So. 747.

The court erred in not excluding the evidence as to the conduct of Gilbert.

The court erred in not ordering mistrial on account of misconduct of Collins.

The court erred in not permitting the jury to advise the court on what is desired further instructions.

Clark v. Pierce, 82 Miss. 462.

J. V. Gipson, of Meridian, and Green, Green & Jackson, of Jackson, for appellant, Fred D. Temple.

This appellant should not be held for the conduct of L. C. Gilbert for damages to the appellee.

Temple, this appellant, was in no sense a superior officer of Gilbert, and certainly Gilbert was not an employee of Temple. Gilbert was furthering no business for Temple, even if he should have done all that Mr. Miller Collins testified was done by Gilbert and there can be no liability against Temple for the acts of Gilbert.

McCarty et al. v. Mitchell, 169 Miss. 82, 151 So. 567.

We submit that it is elemental and fundamental that the plaintiff is required to state the facts on which the cause of action is based and that he is not at liberty to give in evidence facts which have not been stated in the declaration, and especially is this true in an action of assault and battery.

Wells v. Alabama, etc., R. Co., 67 Miss. 24, 6 So. 737; Gill v. L. N. Dantzler Lumber Co., 153 Miss. 559, 121 So. 153.

The testimony and evidence offered for the plaintiff was so unreasonable and unbelievable as not to justify submission of the cause to the jury as to this appellant.

Y. & M. V. R. R. Co. v. Lamensdorf, 180 Miss. 426, 178 So. 80; Y. & M. V. R. R. Co., v. Skaggs, (Miss.), 179 So. 274; Teche Lines v. Bounds, (Miss.), 179 So. 747.

The court should have heard request of jury for additional instructions and should have permitted additional instructions to have been given.

Clarke v. Pierce, 82 Miss. 462, 34 So. 4; Dement v. Summer, 175 Miss. 290, 165 So. 791.

The instructions given to the plaintiff are erroneous in permitting recovery against Temple for acts of L. C. Gilbert and in permitting recovery of punitive damages for alleged wrongful acts of said Gilbert.

Y. & M. V. R. R. Co. v. Aultman, 179 Miss. 109, 173 So. 280.

Appellants were entitled to the refused instructions which presented the issue.

Robinson v. Haydel, 177 Miss. 233, 171 So. 7; Graves v. Johnson, 179 Miss. 465, 176 So. 256; Y. & M. V. R. R. Co. v. Aultman, 179 Miss. 109, 173 So. 280; Stokes v. Adams-Newell Lumber Co., 151 Miss. 711, 118 So. 441.

The motion for a new trial should have been sustained.

Shelton v. Underwood, 174 Miss. 169, 163 So. 828; Fore v. Illinois Central R. R. Co., 172 Miss. 451, 160 So. 903; Mobile & O. R. R. Co. v. Johnson, 165 Miss. 397, 141 So. 581.

Green, Green & Jackson and J. V. Gipson, for appellant, Fred D. Temple, on suggestion of error.

The affirmance as to Temple and remand as to White's Lumber & Supply Company would convict Temple and exonerate the company.

Saw Mill Construction Co. v. Bright and Bright v. Finkbine Lbr. Co., 116 Miss. 491, 77 So. 317; Moore v. Foster et al. (Miss.), 180 So. 73, 74.

We submit that a moot question would be submitted for determination as to the corporate defendant on remand of the cause. Yet, the individual would be convicted of wrong, while the corporate defendants would go free, on the same record, on which a majority holds the individual was acting for and furthering the business of the master, the corporate defendant.

McDaniel v. Hurt, 88 Miss. 769, 92 Miss. 197, 41 So. 381; Smith v. Citizens Bank & Trust Co., 125 Miss. 139, 87 So. 488; Turner Lumber Co. v. Robinson, etc., Co., 155 Miss. 882, 125 So. 86; Kemper County v. Nevel, 95 Miss. 56, 48 So. 727; White v. Franklin, 165 Miss. 729.

The entire record requires reversal as to both defendants; at least remand for new trial.

Temple should not be held for acts of Gilbert.

May we again urge, most respectfully, that this record demonstrates one of the most unreasonable and unbelievable occurrences according to plaintiff that has ever happened as the result of apparent demoniac hallucinations of two otherwise respectable upright, reputable, sane business men.

Gilbert and Temple proceed to a man's house on Sunday to secure by force, if necessary, and by duress, the signature of Collins to a note, secured by a deed of trust, on lands that Collins did not own, the property being owned by the wife of Collins, occupied as a homestead, and with no notary public to take any acknowledgment from Collins to the instrument. Could anyone for a moment conceive of such futile acts by two otherwise apparently sane, upright, reputable gentlemen?

Temple, even though Gilbert was "accompanying as General Manager of the corporation" could not be held on such testimony for the acts of Gilbert. This court has held repeatedly that on such state of facts no recovery will be permitted to stand as to any defendant.

Y. & M. V. R. R. Co. v. Lamensdorf, 180 Miss. 426, 177 So. 50; Teche Lines, Inc. v. Bounds, 179 So. 747, 182 Miss. 638; Mutual Ben. Health & Acc. Ass. v. Johnson (Miss.), 186 So. 297; Kramer Service, Inc., v. Wilkins (Miss.), 186 So. 725; Thomas v. Williamson (Miss.), 187 So. 220.

We submit, therefore, that the testimony on behalf of plaintiff in this case is so improbable, unreasonable, and unbelievable when fully weighed, with deference, in the light of human experience and common sense, that under the above authorities a directed verdict would have been proper; at least, these two defendants are entitled to have another jury pass upon the testimony presented for the plaintiff.

Certainly, in apposition to the testimony on behalf of plaintiff there should be considered the unimpeached testimony of Hon. Victor W. Gilbert, L. C. Gilbert, and Fred D. Temple.

If there was on this testimony a conflict in the evidence to go to a jury, yet under this entire record with the many errors that perhaps were not reversible errors, there was certainly an accumulation of errors that have brought about an erroneous result for which there should be a reversal as to both defendants with a remand for a new trial under Shelton v. Underwood, 174 Miss. 169, 163 So. 828.

Fore v. I. C. R. R. Co., 172 Miss. 451, 160 So. 903; Mobile & O. R. R. Co. v. Johnson, 165 Miss. 397, 141 So. 581; Thomas v. Williamson (Miss.), 187 So. 220.

Williamson, Riddell & Riddell, E. T. Strange, and R. M. Holmes, all of Meridan, for appellee.

Appellant, Temple, was the general manager of White's Lumber & Supply Company in the Meridian territory. Temple was the White's Lumber & Supply Company in Lauderdale County. He had general charge of the sales, credit and cash, and of the collection of debts. He was subordinate only to Mr. L. C. Gilbert, and only then when he desired Gilbert's advice on some matter which he, Temple, did not wish to settle.

Gulf Refining Co. v. Nations, 145 So. 327; Bowers v. Jones et al., 86 So. 711.

It is our earnest contention that both Gilbert and Temple were officers of appellant, White's Lumber & Supply Company on Sunday as well as on Wednesday; that their acts and decisions in the furtherance of the business of the company was as effective on Sunday as on Monday; they were attempting to transact the same business on Sunday that had been attempted on Wednesday and Saturday.

Cullinan ...