Wise v. Peugh

• Decision Date: 30 November 1925
• Docket Number: 25221
• Citation: 106 So. 81,140 Miss. 479
• Court: Mississippi Supreme Court
• Parties: WISE v. PEUGH. [*]

106 So. 81

140 Miss. 479

WISE v. PEUGH. ^[*]

No. 25221

Supreme Court of Mississippi

November 30, 1925

Division B

1. APPEAL AND ERROR. On peremptory instruction against plaintiff, full weight to be given Ms testimony.

When peremptory instruction is granted against plaintiff, his testimony must be given full weight with reference to the facts and circumstances and the reasonable inferences to be drawn therefrom.

2. PRINCIPAL AND AGENT. Under stated conditions, principal liable for assault by agent.

Defendant is liable for assault of W. on plaintiff, if W. was acting as defendant's agent and in the furtherance of his business when he assaulted plaintiff.

3. PRINCIPAL AND AGENT. Evidence held sufficient to take to the jury question of agency of person who assaulted plaintiff.

From the facts and circumstances, held, that jury could reasonably conclude that W., who as agent of defendant had sold mules to plaintiff, and on complaint by plaintiff of their unsoundness had met him, at defendant's garage, to adjust the matter was acting as defendant's agent, and in the furtherance of his interest, when he then assaulted plaintiff.

HON. C P. LONG, Judge.

APPEAL from circuit court of Monroe county, HON. C. P. LONG, Judge.

Action by W. L. Wise against W. G. Peugh. From a judgment on a verdict directed for defendant, plaintiff appeals. Reversed and remanded.

Judgment reversed, and case remanded.

Paine & Paine, for appellant.

At the time of the assault Wamble was the agent of appellee and went to the office of appellee for the purpose of trying to adjust the controversy, and at that time and place was engaged in a discussion of the terms of settlement. Wamble invited appellant into the office of appellee, where the assault was begun.

The res gestae, the very words and the cause of the words, was the primary cause that enraged Wamble, because he evidently saw he could not force the settlement which he and appellant wanted; it was the "causa causans" of the master's business, was so absolutely interwoven as to be inseparable therefrom, and he lost his temper and began the assault. See Barmore v. Railway Co., 85 Miss. 427.

Under this case the simple question is, was Wamble, under the only evidence introduced, doing any act in furtherance of appellee's business? Appellant, the only witness as to the agency of Wamble, says he traded with Wamble for appellee, and gave his note for the mules; he had discussed the trade with Wamble as the agent of appellee, and told Wamble, the agent of appellee, the mules did not come up to the guarantee; and that on the day of the assault had been invited into the office of appellee to discuss the matter with appellee and Wamble; that at that time and place they all three engaged in the discussion, and that when appellant denied having told Wamble he liked the mules, then it was that Wamble, the agent, assaulted him.

In Barmore v. Railway Company, supra, the court says: "In order to escape liability it devolves upon the master to prove that the servant had abandoned the duties of his employment . . . that if the testimony leaves it in doubt, it must be submitted to the jury." (p. 441). See also Railroad Company v. Latham, 72 Miss. 33.

The trial judge committed error in giving the peremptory for the appellee, and the case should be reversed.

Leftwich & Tubb, for appellee.

I. The act committed by Wamble an independent tort. Wise, the appellant, himself made proof that Wamble, who committed the alleged tort, was engaged in selling trucks and automobiles for W. G. Peugh. There is nothing to suggest, nor is it implied that Wamble had anything to do with collecting the notes taken for these trucks and automobiles.

The testimony makes it perfectly clear that Wamble was not working for Peugh in the wordy altercation that preceded the fight, but he was trying to buy the mules. This language demonstrates, and it must be taken for all it is worth when appellant swears to it, that Wamble was not acting for Peugh, but he was acting for himself, trying to take the mules off of Wise's hands. He certainly was not within the scope of his employment with Peugh, which was selling trucks and automobiles, in this mule transaction; he was not acting in Peugh's interest when he was asking Peugh to give twenty-five dollars, Wise to pay twenty-five dollars, and himself to lose twenty-five dollars, and take the mules. What Wamble was to pay Peugh for the mules is not disclosed, but it is not to be presumed that he was to take the mules, which Wise had bought and not paid for because he did not consider them sound, and Wamble not pay Peugh for them.

The master is not responsible for the independent torts of his servant, not done in his business, but done wholly on his own account. Canton Warehouse Co. v. Poole, 78 Miss. 147. The act of a servant in causing actionable injury to a third person does not subject the master to civil responsibility when it appears that the servant was at the time in the use of the master's property, or because the act was in some general sense while he was about his master's business, irrespective of the real nature and motive of the transaction. Canton Warehouse Co. v. Poole, 78 Miss. 147; Illinois Central Railroad Co. v. Latham, 72 Miss. 32; 26 Cyc. 1539; Jaggard on Torts, 276; Railroad Company v. Allbritton, 38 Miss. 242; Southern Express Co. v. Fitzner, 59 Miss. 581.

This case must not be confused with those cases where a servant is employed as a night watchman to guard property, or to keep out trespassers. In this class of cases there is either express or implied power on the part of the servant to use force in performing the task of his master; using force is his business, and if he uses excessive force, or makes an unnecessary assault, his master is liable.

The court was clearly right to take the entire case from the jury. Where there is no evidence that the given conduct was in the course of the employment the court may take the case from the jury. Barmore v. Railway Co., 85 Miss. 426. A master is not liable for the servant's torts unless done in and about the duties assigned him, or in the accomplishment of objects within the line of his duties. Palos Coal and Coke Co. v. Benson, 39 So. 727 (Ala.).

It should not be overlooked here that Peugh was present, looking out for...