Summary
In Morgan v. Loyacomo, 190 Miss. 656, 1 So.2d 510 (1941) the appellants were the operators of about forty eight retail stores.
Summary of this case from Gamble v. Dollar Gen. Corp.Opinion
No. 34520.
April 14, 1941. Suggestion of Error Overruled, May 12, 1941.
1. ASSAULT AND BATTERY.
Where store manager, without any substantial ground therefor, suspected that customer had taken two garments but paid for only one and without making any inquiry of clerk or of customer before customer had left store, manager followed customer and when about a block away and in presence of others stated that he was obliged to investigate and forcibly seized the package, the manager's action constituted an "assault and battery."
2. ASSAULT AND BATTERY.
To constitute "assault and battery" it is not necessary to touch a plaintiff's body or even his clothing, but knocking or snatching anything from plaintiff's hand or touching anything connected with his person, when done in a rude or insolent manner, is sufficient.
3. MASTER AND SERVANT.
Where store manager suspecting, without any substantial ground, that customer had taken away two garments but had paid for only one, followed customer and when about a block away and in presence of others stated that he was obliged to investigate and forcibly seized package from under her arm, the acts were so closely embraced or connected in scope, in point of time, and in area with manager's evident duties, that the owners and operators of store could be held liable therefor.
APPEAL from the chancery court of Grenada county, HON. L.A. SMITH, SR., Chancellor.
Cowles Horton, of Grenada, and Winchester Bearman, of Memphis, Tenn., for appellants.
No battery was alleged or shown, and appellee was neither threatened nor put in fear. Under the law it is, therefore, submitted that there was no assault committed by White in this case.
Gill v. Dantzler Lbr. Co., 153 Miss. 559; Herrington v. State, 177 Miss. 837; 2 R.C.L. 525-527; Telegraph Co. v. Koonce, 112 Miss. 173.
White acted in perfect good faith.
Winton v. Patterson, 152 Miss. 158; Cooper v. Davidson, 172 Miss. 74.
The fact that he "had an awful look on his face" and showed her no politeness cannot form the basis of a decree for damages.
Tel. Co. v. Koonce, 112 Miss. 173; Willis v. McCarty-Holman Co., 187 Miss. 381.
Appellants were not liable for anything said to appellee.
Ins. Co. v. Betty, 101 Miss. 880; Neely v. Payne, 126 Miss. 854.
Alleged assault was not within scope of White's authority.
Idom v. Weeks, 135 Miss. 65; Coulson v. Stevens, 122 Miss. 797; Miller v. Teche Lines, 175 Miss. 351; Hand v. Ins. Co., 174 Miss. 822; Loper v. R.R. Co., 166 Miss. 79; Houston v. Oppenheim, 166 Miss. 619; Russell v. Ins. Co., 106 Miss. 300; Natchez R. Co. v. Boyd, 141 Miss. 593; Davis v. Price, 133 Miss. 236; Craft v. Magnolia Stores, 161 Miss. 756; Express Co. v. Fitzner, 59 Miss. 581; I.C.R.R. Co. v. Green, 130 Miss. 622.
Prevision of White's conduct in this case was not required of appellants.
I.C.R.R. Co. v. Bloodworth, 166 Miss. 602; Hahn v. Owens, 176 Miss. 296; Shuptrine v. Herron, 182 Miss. 315; Greenville v. Laury, 172 Miss. 118; Jabron v. State, 172 Miss. 135.
There was merely a "seintilla" of evidence of any injuries.
Teche Lines, Inc., v. Bounds, 182 Miss. 638, 179 So. 747; Kramer Service v. Wilkins, 184 Miss. 483, 186 So. 625; Thomas v. Williamson, 185 Miss. 83, 187 So. 220; Mut. Benefit, etc., Assn. v. Johnson, 186 So. 297; Berryhill v. Nichols, 171 Miss. 769, 158 So. 470.
For her alleged injuries her physician prescribed. Failure to produce his testimony warrants the argument that there were no real injuries.
Killings v. Met. Life Ins. Co., 192 So. 577; Robinson v. Haydel, 177 Miss. 233, 171 So. 7; Mo. Pac. Trans. Co. v. Beard, 172 Miss. 880, 176 So. 156; Jones v. State, 159 Miss. 119, 124, 131 So. 826.
This is no case for allowance of damages for mental suffering.
Western Union Tel. Co. v. Rogers, 68 Miss. 748; Duncan v. Western Union Tel. Co., 93 Miss. 500, 47 So. 552; Grenada Bank v. Lester, 126 Miss. 442, 455, 89 So. 2; Bonelli et al. v. Branciere, 127 Miss. 556, 90 So. 245; Tel. Co. v. Ragsdale, 111 Miss. 550, 558, 71 So. 818; Tel. Co. v. Koonce, 112 Miss. 173; G. S.I.R. Co. v. Beard, 129 Miss. 827, 833, 93 So. 357; Newman Lbr. Co. v. Norris, 130 Miss. 751, 759, 94 So. 881.
Appellee's failure to produce witnesses who knew of her injuries, if any were sustained, warrants the conclusion that appellee was not injured at all.
Anderson v. Cumberland Tel. Tel. Co., 86 Miss. 341; Bunckley v. Jones, 79 Miss. 1; Calhoun v. Burnett, 40 Miss. 599; Killings v. Met. Life Ins. Co., 192 So. 577.
It is significant that no one testified that he heard or saw anything done by White or understood his conduct as an assault, although appellee named in her bill of particulars some of the people in whose presence she alleges the assault was committed.
Sellers v. Powell, 168 Miss. 682; Taylor v. Standard Oil Co., 186 So. 294.
The award of damages for the alleged mental and physical pain and anguish is clearly excessive under the testimony in this cause.
Pullman Co. v. Anderson, 119 Miss. 791; Allen v. Friedman, 156 Miss. 77; Com. Credit Co. v. Spence, 185 Miss. 293; Saenger Theatres Corp. v. Herndon, 180 Miss. 791; Harper case, 189 So. 463; Ogden case, 189 So. 162; Illges case, 191 So. 817.
Stone Stone, of Coffeeville, for appellee.
The manager makes a pretense now of having his suspicions aroused concerning the purchase and payment for some articles of intimate feminine apparel. He was standing right there listening to all that was said and observing everything that was done, but he deliberately refused to intervene and carry clerk and customer back into the privacy of his office or the back part of the store but preferred rather to wait until the young woman had crossed the square and had gone a whole block from the square and crossed another street, and then on that main street of the City of Grenada he ran up and overhauled the young woman in the presence of passing crowd and proceeded in a very rough and abusive manner to question her as to the number of articles bought, charging that she had paid for only one article and that someone had said that she carried away more than one article of apparel. The young woman denied this, and then he proceeded by force to take the young woman's bag from her and search it and take the articles out and hold them up to the public view. The forcible search and seizure demonstrated the innocence of the late customer, and without apology or restitution the manager dashed back to the store and about his affairs.
The master who puts a servant in a place of trust or responsibility, or commits to him the management of his business or care of his property, is justly held responsible when the servant, through lack of judgment or discretion, or from infirmity of temper, or under the influence of passion aroused by the circumstances and the occasion, goes beyond the strict line of his duty and authority and inflicts an unjustifiable injury upon another.
Gill v. Dantzler Lbr. Co., 153 Miss. 559, 121 So. 153.
For counsel to suggest that when a general manager of a store leaves a store and hits the trail of a customer and goes and assaults the customer, to say that he is not in the line of his authority is forgetting all that we have learned about the rule of respondeat superior.
Distinguished counsel writes page after page and volume after volume on the point that other witnesses were not produced. We do not believe that time should be taken up on this point. Ample proof was furnished on every single feature, the most of it undenied.
W.B. Nichols and S.C. Mims, of Grenada, for appellee.
The question of good faith is not involved in this law suit.
Dixon v. Harris Naval Stores, 109 So. 605.
It was the duty of Mr. White, as the general manager of appellants' business here, to protect the same from theft, and in his effort to ascertain whether or not the appellee had stolen merchandise from his employers he was acting within the scope of his employment and fulfilling his duty as the general manager of appellants' business here. The only trouble was that he exercised more zeal than judgment.
Coulson v. Stevens, 122 Miss. 797, 85 So. 83; Russell v. Ins. Co., 106 Miss. 300.
The learned chancellor held that the assault was a part of the res gestae and was justified in so holding for the reason that from Mr. White's own testimony he followed the appellee for the purpose of making the investigation in question. The appellants cannot be relieved from their liability in the instant case, because their employee with such authority made the investigation in regard to the theft of their merchandise after the appellee had left the store, rather than make the same before she left their place of business.
Scott-Burr Corp. v. Edgar, 177 So. 766.
The unlawful assault upon the appellee entitled her to at least nominal damages, and if such assault was the result of gross negligence or was wilful or wanton, the appellee was entitled to punitive damages, regardless of whether she was actually damaged or not, for the reason that the appellants, through their servant and employee, did that which the law prohibits and did such thing, according to the finding of the learned chancellor, in a manner that was rude and angry, indicating wilfulness on the part of the appellants' servant and employee, and entitled the imposition of punitive damages.
Dixon v. Harris Naval Stores, 190 So. 605; Sumner Stores v. Little, 192 So. 857.
Where the injurious act complained of is not so separated by time and logical sequence from the business of of the master as to make it a separate and independent transaction the master is not relieved of liability. Where the transaction consumes only a few moments and it 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.
Interstate Co. v. McDaniel, 173 So. 165; Primos v. Gulfport Laundry Cleaning Co., 128 So. 507; Hahn v. Owens, 168 So. 622; Restatement of Law, Agency, Secs. 231, 454; Loper v. Y. M.V.R.R. Co., 166 Miss. 79, 145 So. 743.
Argued orally by Cowles Horton, for appellant, and by S.C. Mims, Jr., for appellee.
Appellants are the owners and operators of forty-eight retail stores, one of which is in Grenada. Appellee purchased in this store on the day in question an article of ladies' underwear and having paid for it departed from the store. One White was the manager of the store and witnessed the purchase. A trivial circumstance connected with the purchase caused White to suspect, but without any substantial grounds therefor, that appellee had taken away two garments but had paid for only one. Without making any inquiry either of the clerk or of appellee before appellee left the store, which if done would have readily revealed that the manager's suspicions were without any ground, White permitted appellee to leave the store, but followed her; and when about a block away and in the presence of several persons, he called to appellee, stated that he was obliged to investigate whether she had taken two articles while paying for only one, forcibly seized the package from under her arm, opened it, examined and exhibited the contents in the presence of the third persons, and found that he was in error, which, as already mentioned, he could easily have ascertained by a proper inquiry conducted in a proper manner before appellee left the store.
It is the first contention that there was no assault and battery, and that the words of White, with his attendant conduct, did not amount to a slander. Appellants are mistaken that White's actions did not constitute an assault and battery. The authorities are agreed that, to constitute an assault and battery, it is not necessary to touch the plaintiff's body or even his clothing; knocking or snatching anything from plaintiff's hand or touching anything connected with his person, when done in a rude or insolent manner, is sufficient. 5 C.J., pp. 619, 620; 6 C.J.S., Assault and Battery, Sec. 9, pp. 801, 802, and cases cited in the notes. See, also, 2 Bishop, New Criminal Law, Section 72.
Appellants next contend that White's actions were not within the rules which would hold appellants to account therefor. The reply to this is by a quotation which we take from Scott-Burr Stores v. Edgar, Miss., 165 So. 623: "The alleged acts done by the manager were so closely embraced or connected in scope, in point of time, and in the area thereof, with his evident managerial duties, that the said acts may be justly said to have been a part of the res gestae, using that language for want of a better term to briefly express it."
Appellants complain that the amount of the damages allowed is excessive. Pilfering in one form or another from large retail stores presents a serious problem for the management of such establishments. This is a matter of current knowledge and our attention has been drawn to it in several cases that have been in this Court. Our attitude towards management in this matter has, therefore, been lenient rather than harsh, as evidenced by what was done by us in Willis v. McCarty-Holman Co., 187 Miss. 381, 193 So. 337. But our courts must not tolerate conduct such as shown in this case; and upon the whole record we are not able to say with confidence that the amount of the damages allowed is excessive.
Affirmed.