Summary
In Interstate Co. v. McDaniel, 178 Miss. 276, 173 So. 165 (1937), this Court found respondeat superior liability when an employee assaulted and battered a patron because the employee was "required to protect it [his inventory] within reasonable bounds from depredations."
Summary of this case from Adams v. Cinemark USA, Inc.Opinion
No. 32641.
March 15, 1937.
1. MASTER AND SERVANT.
Where injurious act of servant is not so separated by time and logical sequence from master's business as to make it a separate and independent transaction, master is not relieved of liability, and where whole transaction consumes only a few moments and has all the features constituting one continuous and unbroken occurrence, master is not relieved of liability because servant steps outside his authority.
2. MASTER AND SERVANT.
Employer of vendor of newspapers, magazines, and refreshments on train held liable for injuries inflicted by vendor on drunken passenger whom vendor struck on the eye after having accused passenger of stealing oranges, even if vendor stepped outside of his authority, where transaction consumed only a few moments and had all the features constituting one continuous and unbroken occurrence.
3. DAMAGES.
$2,995 to drunken train passenger who received cuts above and below his eye when struck by vendor of newspapers, magazines, and refreshments held excessive by $1,495, where physician, who treated wound on six successive days after it had been inflicted testified that he was not an eye specialist and did not know whether injury was permanent, and passenger's own testimony as to permanency was weak.
4. NEW TRIAL.
$2,995 to drunken train passenger who received cuts above and below his eye when struck by vendor of newspapers, magazines, and refreshments held so large as to evince passion and prejudice, where physician, who treated wound on six successive days after it had been inflicted, testified that he was not an eye specialist and did not know whether injury was permanent, and passenger's own testimony as to permanency was weak.
APPEAL from circuit court of Holmes county. HON. S.F. DAVIS, Judge.
G.H. McMorrough, of Lexington, for appellant.
As shown by the motion for new trial and the assignment of errors, the appellant (defendant in the court below) strongly maintains that the amount allowed the plaintiff (appellee here) was and is grossly excessive, so much so as to show prejudice and passion on the part of the jury. It was wholly unwarranted by the evidence. In the first place appellant is not liable for the reason the evidence shows that the alleged difficulty was a personal one between McDaniels and Jones.
Wells v. Motor Co., 153 Miss. 451; Western Union Tel. Co. v. Weeks, 162 Miss. 286; A. V.R.R. Co. v. Hartz, 88 Miss. 681; American Ry. Express Co. v. Wright, 128 Miss. 595; I.C.R.R. Co. v. Dodd, 97 Miss. 865; Valley v. Clay, 92 So. 308; Williams v. Pullman Co., 3 So. 631; Candiff v. L.N.O. T.R.R. Co., 7 So. 601; G.M. N.R.R. Co. v. Jones, 155 Miss. 689; McDermott v. Am. Brewing Co., 52 L.R.A. 684; Ritchie v. Waller, 27 L.R.A. 161; Smith v. Ricks, 150 So. 674; Fullmer v. L. N.R.R. Co., 152 So. 148; Nuss v. City of New Orleans, 147 So. 374; Stone v. New Orleans Public Service, 119 So. 757; Theriot v. Tassin, 146 So. 279; Cosse v. Ballay, 149 So. 285; Thibodeaud v. Star Checker Cab Co., 143 So. 101; City of Vicksburg v. Scott, 168 Miss. 572; Kelly v. Y. M.V.R.R. Co., 98 Miss. 367; Rabelais v. Orleans Kenner Trac. Co., 123 So. 341; Dyer v. Warick, 140 So. 254; Shafer v. Southern Bell Tel. Co., 160 So. 349; Maestri v. McCall, 130 So. 229; Jordan v. Checker Cab Co., 120 So. 426; Ciaccio v. Cashio, 139 So. 34; Tisse v. Faye Bros., 129 So. 248; Roberts v. Chicago City R.R. Co., 46 A.L.R. 1254; Miller v. Britten, 46 A.L.R. 1272; Brock v. Interurban Motor Trac. Co., 100 So. 428; St. Louis R.R. Co. v. Hagler, 46 A.L.R. 1298; Reynolds Tobacco Co. v. Loftin, 99 So. 13; National Box Co. v. Henry, 140 Miss. 397; Beaumont Trac. Co. v. Arnold, 46 A.L.R. 1333; 102 A.L.R. 1125; Kroweznk v. Coleman, 102 A.L.R. 1171; Fulmer v. L. N.R.R. Co., 102 A.L.R., 1154; Beard v. Williams, 172 Miss. 880; O'Pry v. Burdon, 149 So. 287.
S.R. King, of Durant, and E.T. Neilson, of Lexington, for appellee.
It is true that appellee requested exemplary damages, but according to the record the recovery was amply sustained by the evidence which was before the jury.
Y. M.V.R.R. Co. v. May, 104 Miss. 422, 61 So. 449; Interstate Co. v. Garnett, 122 So. 373.
Appellant asked for a directed verdict in the court below on the ground that no liability was shown as against the appellant, for the acts of its agents towards the appellee, this motion was ample evidence before the jury, as a question of fact, and before the court as a question of law, that the agent, C.C. Jones, was acting within the scope of his authority, given him, expressly and impliedly by the appellant.
Loper v. Y. M.V.R. Co., 166 Miss. 79, 145 So. 743; 39 C.J. 1284; Richberger v. American Express Co., 73 Miss. 161, 18 So. 922; Wishbone v. Yellow Cab Co., 97 S.W.2d 452; Singer Sewing Machine Co. v. Stockton, 157 So. 366; Kennington-Saenger, Inc., v. Wicks, 151 So. 549; Southern Express Co. v. Wamble, 103 Miss. 481, 60 So. 642; Y. M.V. Ry. v. May, 104 Miss. 422, 61 So. 449.
The appellant complains that the court should have granted his peremptory instruction requested and refused. We respectfully submit that there was sufficient evidence upon which the jury was justified in finding against the appellant, and that there was a material conflict in the evidence, and, of course, where the evidence is sufficient, and there is a conflict in that evidence, the court will not grant such instruction to either side.
Masonite Corp. v. Dennis, 168 So. 613; Bourgeois v. Miss. School, etc., 154 So. 41; Gravette v. Golden, 154 So. 274.
Appellee, R. Ernest McDaniel, brought this action against appellant, the Interstate Company, in the circuit court of Holmes county to recover damages for an injury received by him as the result of an alleged unjustifiable assault and battery committed on him by one Jones, a servant of appellant, and charged to have been committed by the servant when engaged about his master's business. There was a trial resulting in a verdict and judgment in the sum of $2,995. From that judgment, the Interstate Company prosecutes this appeal.
Only two of the assignments of error have sufficient merit to call for a discussion by the court. They are, whether appellant was entitled to a directed verdict, and, if not, whether a new trial ought to have been granted on the ground that the verdict was excessive, that being one of the grounds of the motion for a new trial, which was overruled. The questions will be disposed of in the order stated.
Appellant is a corporation organized and existing under the laws of the state of Delaware and engaged in operating lunch rooms, cafes, and in selling fruit and other merchandise on passenger trains. It had a contract with the Illinois Central Railroad Company to sell fruit, soft drinks, and other edibles on some, if not all, of its passenger trains running through Mississippi. Its business on the trains was through the agency of what is commonly known as a "news butch," who also sold newspapers and magazines. One of these servants was C.C. Jones. On the night of June 21, 1936, the Illinois Central Railroad Company ran an excursion train from Durant, in this state, to Memphis, Tenn. Jones was in charge of appellant's business on that excursion train. Appellee was a passenger thereon. Appellee was drunk — he admitted that he had been drinking and did not deny that he was drunk. All the evidence showed beyond any question that he was drunk and was in a drunken sleep when Jones committed the assault and battery on him for which he sued. Jones had his merchandise stand in the car in which appellee was riding. He was engaged, as usual, in filling his basket and going back and forth through the coaches making sales. In his rounds he returned to the coach in which appellee was riding and thought he saw evidence that in his absence appellee had taken some of the oranges from the stand. Appellee testified as to the assault and battery in this language: "Q. Did anything happen between you and Mr. Jones? A. Nothing only he came through the coach there, and I was sitting there about half asleep. He shook me and said: `Fellow, I want you to quit stealing my oranges.' I told him he was a damned liar, I didn't do it. He called me a son of a bitch and hit me and cut my eye terrible and he went on through out of the coach."
Jones' duty did not stop with selling and collecting for the merchandise. He was required to protect it within reasonable bounds from depredations, and if in doing so he went a step too far, was his act, nevertheless, that of his master? From the evidence in this case, we think that question must be answered in the affirmative, under the authority of Richberger v. American Express Co., 73 Miss. 161, 18 So. 922, 31 L.R.A. 390, 55 Am. St. Rep. 522, and Singer Sewing Machine Co. v. Stockton, 171 Miss. 209, 157 So. 366. Where the injurious act complained of is not so separated by time and logical sequence from the business of the master as to make it a separate and independent transaction, the master is not relieved of liability. Where the whole transaction, as here, consumes only a few moments and has all the features constituting one continuous and unbroken occurrence, a master is not relieved of liability because the servant stepped outside of his authority. There was no error, therefore, in refusing appellant a directed verdict.
The blow appellee received made cuts above and below his eye, and caused his eye to be inflamed for sometime. Dr. Howell treated the wound on six successive days after it had been inflicted. He testified that he was not an eye specialist and did not know whether the injury was permanent or not. Appellee's own testimony as to its permanency was weak and unsatisfactory. We have here appellee in a drunken sleep; Jones conceived from appearances that he had been taking his oranges; he charged him with it; appellee replied that Jones was a "damned liar;" Jones responded that appellee was a "son of a bitch," and at once inflicted the blow causing the wound.
We think the verdict is too large — so large as to evince passion or prejudice on the part of the jury — and that $1,500 would be ample compensation, as well as punishment, for the wrong inflicted on appellee. If a remittitur down to that amount is not entered by appellee within ten days, the judgment will be reversed, and the cause remanded for a new trial on that ground alone.
Affirmed with remittitur.