Yazoo & Mississippi Valley Railroad Co. v. Hare

• Decision Date: 21 April 1913
• Docket Number: 15,876
• Parties: YAZOO & MISSISSIPPI VALLEY RAILROAD CO. v. BETTIE HARE ET AL
• Court: Mississippi Supreme Court

61 So. 648

104 Miss. 564

YAZOO & MISSISSIPPI VALLEY RAILROAD CO. v. BETTIE HARE ET AL

No. 15,876

Supreme Court of Mississippi

April 21, 1913

APPEAL from the circuit court of Warren county, HON. H. C. MOUNGER Judge.

Suit by Bettie Hare and others against the Yazoo & Mississippi Valley Railroad Company. From a judgment for plaintiff, defendant appeals.

The facts are fully stated in the opinion of the court.

Affirmed.

Mayes &amp Mayes, for appellant.

The first point which we desire to submit is this: That the court erred in allowing the plaintiffs below, over the objection of the defendant, to prove the general reputation of Gillis as a night watchman "for competency and incompetency and peace and violence, in his treatment of the employees and public generally," before the killing of Hare, and to prove that it was bad.

We have pointed out above how closely the testimony in this case must have been balanced, and what a troublesome and doubtful case it must have been, for the plaintiffs, to say the least of it.

Mr Gillis had been acquitted of the charge of unlawful killing in the state's prosecution; there had been three hung juries, even in the civil suit against the railroad company and this was the fourth trial of the civil suit. It will, therefore, be idle to say that it was not a case of, at the least, close testimony and doubtful credibility.

In a crisis like this, the rights of the parties are not controlled by general reputation and general character, but by what is done, and the foregoing proposition is sustained by the authorities.

In Lienkauf v. Brinker, 62 Miss. 255, this court practically so held. It is true that in that case the charge was one of fraud, but the court held that where the matter under investigation is one of specific transaction, the court must depend upon its circumstances and not upon the character of the parties, and the court in that connection reviews the authorities and criticizes the case of Ruan v. Perry, which seems to be the leading case for that view, and aligns this court as being opposed to any such view, and as declining to give its adhesion to Mr. Greenleaf's proposition in that connection.

We quote from 16 Cyc. 1263 as follows: "That a person did or did not do a certain act because his character would predispose him to do or not to do it, is an inference which, although sometimes logically probative, the English law of evidence, with some exceptions, absolutely rejects, in civil cases."

Observe the strength of the expression. The proposition is absolutely rejected in civil cases. The author thereupon proceeds to cite authorities from many states, to the extent of nearly a whole printed page. It will be seen by these authorities, of which we have verified many, that the case at bar does not fall within any of the exceptions.

We submit that the admission of this evidence was unlawful; and in view of the course of these trials as shown by the record, it was manifestly highly prejudicial and materially conduced to produce the verdict complained of.

The damaging effect of the admission of this incompetent evidence is greatly enhanced and is enforced by plaintiff's fourth instruction and also by the eighth instruction for plaintiff. These instructions, the incompetent evidence having been admitted, expressly instruct and authorize the jury to infer from the fact alleged of Gillis' general badness, that his act in shooting the deceased was unlawful; and notwithstanding the fact that the shooting was proven in all its circumstances, or at least was claimed by the plaintiffs to have been, by eye-witnesses.

A great many instructions were asked by the defendant in this cause; of which several were given and quite a number refused.

We shall not trouble the court, for it would be quite a tax, to take up these instructions and consider them one by one. Indeed to do so would be but to travel repeatedly over the same ground. We will submit to the court one proposition as to which, if the court shall approve it, it will be a touchstone by which to test many of these instructions and to show that certain of those given for the plaintiff were improperly given because they ignore the true test of liability; and for the same reason certain of those refused to the defendant should have been given and the refusal of them was erroneous.

The proposition, briefly stated, is this: That in the instructions given for the plaintiff, entirely too much stress, in fact all of the stress, is laid upon the proposition that the killing was done by Gillis while he was about the railroad company's business, and the element is retired from sight, and is completely ignored, that what Gillis did must have been done within the scope of his employment.

There is no evidence in this record that Gillis was authorized to shoot anybody or to carry his watchmanship to the point of inflicting death or wounds upon persons under any condition. The error in refusing instructions for defendant consists in the fact that those instructions were intended to develop, and bring to the attention of the jury these propositions of law; and the court would not permit the defendant so to do.

In brief, it is not a mere question that the employee who inflicts the injury is at the time engaged in his master's business; but also it is necessary that being so engaged in the master's business, what he does comes within the scope of his employment. The idea is a little subtle, but it has been fully expressed and elucidated in the books. We cite the court to the annotated case of Goodloe v. Memphis, etc., R. R. Co. (Ala.), 54 Am. St. Rep. , and the very elaborate note thereto.

We also refer to the case of Richberger v. American Express Co., 73 Miss. 161, as that case is reported in 55 Am. St. Rep. 522, and annotated; and Barmore v. Railroad Co., 85 Miss. 426.

We earnestly submit that the evidence in this case shows that it is an instance where the killing falls clearly within the rule as stated in those authorities, and as held within the rule as held in the Mississippi cases. There was no authority to this watchman shown in the record to have been conferred, either expressly or by implication by the railroad company on this man to shoot anybody under any circumstances, and in so doing it was his independent act, and while he did it (we will concede, although the evidence does not make it clear) at a time when he was serving as watchman and, therefore, was engaged about his business as such, it was not within the scope of his employment but was an outside and independent wrongful act of his own.

The instructions which the defendant requested announcing this view, and which the court refused, should have been given.

J. D. Thames and Brunini & Hirsch, for appellees.

"It is well settled in all jurisdictions that the reputation of the employee is receivable to show that the employee's character, in respect to competency, was known to the employer." 1 Wigmore on Evidence, sec. 249.

We copy the closing paragraph of the foregoing section of Wigmore, to be found on page 320 of the first volume of Wigmore: "It is to be noted that the substantive law may be such that the evidential question, whether such reputation was likely to reach the employer, does not arise; i. e., it maybe held that if a reputation of incompetency had arisen, then, even if the employer did not in fact hear of the reputation, yet this failure to learn of such an easily knowable thing is in itself negligence, as a matter of law, in that it involves failure to make inquiry concerning competence:

"1870, COOLEY, J., in Davis v. R. R. Co., 20 Mich. 105: 'If the defendants continue a man in their employ who is so notoriously unfit as to have established a general reputation to that effect, it is unreasonable (the plaintiff argues) to suppose the officers of the defendants ignorant of that fact; unless we excuse their want of information on the ground of neglect of duty on their part to their employees and the public, so gross as to make it proper and just to hold them responsible to the same extent as if they were fully informed of all the facts.'

"1890, FIELD, J., in Monahan v. Worchester, 150 Mass. 440, 23 N.E. 228: 'If a person is incompetent for the work he is employed to do, the fact that he is generally reputed in the community to want those qualities which are necessary for the proper performance of the work, certainly has some tendency to show that the master would have found out that the servant was incompetent, if proper means had been taken to ascertain the qualifications of the servant.'"

For the correctness of our position we rely upon the decision of the United States Supreme Court in the case of Northern Pacific R. R. Co. v. Mares, 123 U.S. 710, 31 L.Ed. 296.

The instructions on this point, given by the court on behalf of plaintiff were drawn in accordance with those approved by the United States Supreme Court in this case.

We submit that testimony which went to show the reputation of Gillis as a night watchman was perfectly competent and relevant,...