Opinion
No. 26916.
March 26, 1928. Suggestion of Error Overruled April 23, 1928.
1. LIMITATION OF ACTIONS. Six-year statute held applicable to cause of action for alleged negligence of employer in retaining servant with violent temper.
Six-year statute of limitations held applicable to cause of action for injuries resulting to invitee on premises from assault and battery by employee, because of alleged negligence of employer in retaining in its employment a servant, known to have a violent temper and vicious disposition, and negligence in extending invitation to plaintiff and encouraging him to come in contact with such employee while concealing from him knowledge that employee intended to do him personal violence.
2. MASTER AND SERVANT. Master's negligence in retaining servant with knowledge of vicious propensities as bearing on liability for assault and battery held for jury.
In action against employer and employee for personal injuries alleged to have been sustained as result of assault and battery committed by employee, negligence of employer in retaining employee with knowledge of vicious propensities and inviting plaintiff on premises with knowledge of danger held for jury.
APPEAL from circuit court of Lauderdale county; HON. J.D. FATHEREE, Judge.
Williamson Clayton, for appellant.
The defendant Burroughs, of course, committed an assault and battery when he cut the appellant with his knife, and as to him this cause of action was barred by the one-year statute of limitations at the time this suit was filed. As to said defendant, it was a case of trespass vi et armis. The declaration made out a different character of case altogether against the appellee, the Alden Mills. As to this defendant the declaration made out an action on the case. The appellee, therefore, was not charged with having committed an assault and battery and the case was not prosecuted on the theory that the appellee had committed an assault and battery, and to maintain our theory of the case we introduced evidence to establish the fact that on the day that appellant sustained the personal injuries complained of, and twice a day for three months prior thereto, appellant went into and through the Alden Mills and sold lunches, cold drinks, and sundries, for which privilege he paid the appellee ten per cent of the gross sales as per an agreement that he had with Mr. Palme, the general manager of said manufacturing plant.
The appellant introduced ample proof to sustain each and every allegation of his declaration, and more especially to prove that Burroughs, an employee of the appellee, was a man of ungovernable temper; that he was generally quarrelsome and was a vicious and dangerous fellow, frequently engaging in personal encounters and resorting to the use of a knife in connection therewith and had threatened to do personal violence to the appellant in the event he should come through said manufacturing plant, as was his custom, on the day that he sustained the injuries complained of, and that all of these facts and more were well known to the officials of the Alden Mills, including the general superintendent and his foreman, and that said officials not only negligently retained Mayfield Burroughs in the employment of the appellee after having acquired the aforesaid knowledge, but also negligently concealed these facts from the appellant and failed to give him notice of his perilous position and impending danger at a time when said officials knew that he would likely suffer death or great bodily harm at the hands of Burroughs in said manufacturing plant. The appellee Corporation owed the appellant, Bernard Jones, that same character of duty that it would have owed to him if Burroughs had been a vicious and dangerous bull on its premises, or a vicious and dangerous bull dog on its premises, or an extraordinarily dangerous pit-fall, or piece of machinery on its premises and situated in such a place or locality on said premises that Jones would likely come in contact with same while passing through said manufacturing plant as per his custom, under his aforesaid contract and agreement with the appellee. And the failure on the part of appellee to properly discharge its aforesaid duties, proximately resulting in injury to appellant, gave rise to the cause of action in favor of appellant, under the general law of negligence, to which the six-year statute of limitations would apply. Therefore the demurrer to the plea of the one-year statute of limitations filed by the appellee during the second day of the trial of this cause of action, should have sustained and a motion to exclude the evidence and grant a peremptory instruction should have been overruled. R.R. Co. v. Hare, 104 Miss. 564, 61 So. 648.
One who retains in his employment a dangerous, desperate, and drunken employee, whose reputation is such that the master might foresee that he was likely to make an assault on others, is liable for injuries caused by such an assault. M.K. T.R. Co. v. Day, 136 S.W. 435, 104 Tex. 237, 34 L.R.A. (N.S.) 117; Magouirk v. Telegraph Co., 31 So. 207, 89 A.S.R. 663; 18 R.C.L. 730; 21 R.C.L. 838; 3 R.C.L. Supp. 1195; 5 R.C.L. Supp. 1174; Cobb v. Simon, 119 Wis. 597, 100 A.S.R. 909, 97 N.W. 276; Fairbanks v. Boston Storage Warehouse Co., 189 Mass. 419, 13 L.R.A. (N.S.) 422, 109 A.S.R. 646, 75 N.E. 737; Bowen v. Ill. Cent R.R. Co., 70 L.R.A. 915, 69 C.C.A. 444, 136 Fed. 306, 18 Am. Neg. Rep. 289; Dickinson v. Harrison Naval Stores (Miss.), 109 So. 605. Thompson on Negligence, 893.
When the trial court overruled said demurrer, and granted said peremptory instruction, it committed serious reversible error. Bell v. Kansas City M. B.R. Co., 68 Miss. 19, 8 So. 508. In Alabama the statute of limitations is exactly the reverse of the statute of limitations of Mississippi, and this fact must be borne in mind when we consider a decision of the Alabama supreme court on this point. Ex parte L. N.R. Co. (Ala.), 83 So. 52, is the most direct case in point that we have read and we quote from this decision as follows: "That this battery was such a violation of corporate duty is, indeed, the sound basis upon which corporate liability is founded, but the corporate offense lies in the negligent failure to safely carry and protect, and not upon any legal fiction of direct intentional causation of the battery by the corporation." This case points out the difference between cases where the complainant is in trespass vi et armis and those in case. See also 5 C.J. 628; 37 C.J. 776. The form of action and not the cause of action must determine whether the plaintiff's action is barred. Stringer v. Stephens Estate, 117 A.S.R. 620. If an injured party has a right to either of two actions, the one he chooses is not barred by limitation, because the other, if he had brought it, might have been. Lamb v. Clark, 22 Mass. (5 Pick.) 193; Christy v. Farlin, 49 Mich. 319, 13 N.W. 607; Plant v. Murphy, 5 Ohio Dec. 544; McCombs v. Guild, 77 Tenn. (9 Lea); Bushnell v. Bushnell, 77 Wis. 435, 46 N.W. 442, 9 L.R.A. 411; Ferris v. Ferris, 1 Root (Conn.), 365. In M.K. T. Ry. Co. v. Craddock, 174 S.W. 965, the court said: "The second assignment of error is that the court erred in overruling defendant's special exception, which was in effect that the petition showed it to be an action for libel and was barred by one year's limitation. The exception was leveled at that part of the petition which alleged in effect, that he had been charged by defendant with burglary and theft, etc.; that he was damaged in reputation, character, and fair name, etc., thereby. These allegations partake of a cause of action for libel and slander but when the acts charged are joined with charges for malicious prosecution, false imprisonment and assault as growing out of one continuous transaction, they are permissible and are controlled by the law governing actions for malicious false imprisonment."
Bozeman Cameron and Amis Dunn, for appellees.
The cause of action if any, was barred by limitations before the suit was begun. Sec. 2466, Hem. Code. In stating his cause of action the plaintiff averred, in part, that one or more of the officials of the Alden Mills knew that Burroughs intended to attack and cut plaintiff as he did attack and cut him, and actually encouraged him so to do; it being even inferred that he was put up to it; that one of the officials, who possessed said knowledge, talked with the plaintiff on the day that he sustained the injuries; that this official suggested certain facts which would bring the plaintiff in contact with Burroughs, and that said official then knew that Burroughs had planned to attack and cut the plaintiff. The effect of such averments in the declaration was to charge that the Alden Mills was an accessory to the assault. The declaration contains but one count and charges Burroughs and the Alden Mills with an assault and battery as the ground of the joint action against them. The appellant concedes in his brief that the cause of action against Burroughs was barred before the suit was begun, but contends that it was not barred as against the appellee, because as to the appellee the action was in case and as to Burroughs the action was in trespass.
Of course, a mere statement of the proposition is to condemn the declaration as being wholly bad. As just noted, the declaration consisted of but one count, and attempted at least to charge a joint cause of action against two defendants, growing out of a jointly pre-arranged assault and battery upon the plaintiff, consummated by the actual attack. If the action was joint and barred by the statute of limitations as to one of the defendants, it was barred as to the other. It is contended by the appellant that the statute of limitations as to actions for assault and battery is not applicable to the Alden Mills, for the reason it is a corporation and that a corporation cannot commit the offense. He cites in support of this proposition the case of Bell v. K.C.M. B.R.R. Co., 68 Miss. 19. From an examination of that case it will be seen that it was a case of negligence, pure and simple. It is well settled that corporations may commit the offense and our court has so held in a number of cases. 7 R.C.L., p. 688, sec. 688.
The declaration charged an assault and battery on the plaintiff (pursuant to prearrangement between the officers of the corporation and Burroughs) by Burroughs and constituted an election of remedies by the plaintiff. The trial proceeded from beginning to end as a joint cause of action against both defendants. The declaration was good in trespass as against both defendants except for the omission of an averment that the officers of the corporation, in conspiring to commit the assault were acting within the scope of their authority or employment. There was no request made to amend the declaration by dismissing the suit as to Burroughs and treat the action as one in case as to the appellee as it then would have, perhaps, stood. It is, therefore, submitted that the appellant elected his remedy and stood upon the alleged joint cause of action, and cannot now complain at the result.
Counsel for appellant relies on the case of Y. M.V.R.R. Co. v. Hare, 104 Miss. 564, 61 So. 648. In that case the injured man was a servant and the man who did him injury was a fellow servant and the act committed by him was "clearly within the scope of his authority as such." These essential differences make the case wholly inapplicable. Our opponents cited a series of authorities which involve injuries by servants by reason of negligent or malicious acts of their co-employees known to be subject to the infirmities of temper or otherwise which caused the injury. In every instance also the servant who committed the injury was acting within the scope of his employment. We commend to the reading of the court the case of Bowen v. R.R. Co., 70 L.R.A. 915, 69 C.C.A. 444, 136 Fed. 306, cited by opposing counsel. The court there discusses a great many authorities and denies the right of plaintiff to recover in an assault committed on plaintiff. We quote one excerpt from the opinion: (First Syllabus) "There is a marked distinction between an act done by the servant during his employment and an act done within the scope of his employment. To bind the master for an injury done by the servant, the servant must at the time be acting for the master within the scope of the duty assigned him." We quote also from another case cited by appellant, to-wit: Cobb v. Simon, 119 Wis. 597, 100 Am. St. Rep. 909, 97 N.W. 276: "A master is not liable if his servant steps aside from the master's business and maliciously and wantonly commits a tort for the accomplishment of his own purposes. The test is not whether the act was done during the existence of the employment, but whether it was done in the transaction of the master's business."
The nearest case to the one before the court cited by our opponents is that of Dixon v. Naval Stores, etc. (Miss.), 109 So. 605. There plaintiff was assaulted by the manager of the defendant who accused him of stealing from his employer. The manager worked for the Naval Stores Company and he got the notion that Dixon had stolen a package of tea. He forcibly took it from him, accusing him of stealing it. This was directly in the scope of his authority and work and the assault thus committed by him was sufficient support for a right of action against the corporation, his employer.
Our opponent tries to invoke the liability of the keeper of a vicious dog, or other animal, as authority for the principle he is contending for in this case, but there is, of course, no basis for this. In R.R. Co. v. Boyd, 141, Miss. 593, 107 So. 1, this court denied recovery to the heirs of a man killed by a man employed by the Railroad Company to pump water for it. This man had gotten his brother to watch the tank to discover just who had been committing depredations on the property committed to his charge. The brother, in the course of this duty, shot Boyd and the suit resulted. This court held that the servant of the Railroad Company having been employed to pump water could not bind the master outside of the scope of that authority and, therefore, liability was denied. The extent of the liability of the master in assault cases was fully discussed by this court in Express Company v. Wright, 128 Miss. 593, 91 So. 342, 23 A.L.R. 127. That was a case where a woman was on the premises of the Express Company for a legal purpose, but the servant of the Express Company committed the assault about a private matter. The court denied recovery, saying among other things: "The authorities in this state, as well as elsewhere, are practically unanimous that the master is not responsible for the acts of his servant which are outside the line of the duty of the servant." To the same effect are Railroad Co. v. Harz, 88 Miss. 681; R.R. Co. v. Harrison, 48 Miss. 112; R.R. Co. v. Harris, 71 Miss. 74; R.R. Co. v. Hunter, 74 Miss. 444; R.R. Co. v. Garrett, 101 So. 348; Hines v. Green, 87 So. 649; Same, 67 L.Ed. 299. Under this test certainly the plaintiff's case falls.
Argued orally by W.L. Clayton and Nate S. Williamson, for appellant, and Ben F. Cameron, for appellees.
The appellant, Bernard M. Jones, instituted this suit in the circuit court of Lauderdale county against the Alden Mills and Mayfield Burroughs, an employee of the Alden Mills, seeking to recover damages for personal injuries alleged to have been sustained as a result of an assault and battery committed by the said Burroughs upon the appellant while he was rightfully upon the premises of the Alden Mills.
The declaration alleged, among other things, that on or about the 26th day of April, 1924, and for a long time prior thereto, the defendant Mayfield Burroughs was employed by the defendant the Alden Mills to work in and about said manufacturing plant; that the defendant Mayfield Burroughs was a person of vicious habits and ungovernable temper; that he had frequent quarrels and personal difficulties with different persons, including employees of said hosiery mill or manufacturing plant, while working in and about said plant; that the said Burroughs used a knife in these personal encounters in an effort to cut and stab his victims; that all of these facts were well known to the defendant, the Alden Mills, on and prior to the date when the said Burroughs cut and stabbed the appellant in said hosiery mill or manufacturing plant; and that, notwithstanding this knowledge on the part of said Alden Mills, it negligently retained and still retains the said Burroughs in its employ.
The declaration further avers: "On or about the said 26th day of April, 1924, and for a long time prior thereto, plaintiff was in the habit of passing through said hosiery mill or manufacturing plant, including the knitting department of same, for the purpose of selling lunches, candies, drinks, and other merchandise by invitation of and under an agreement with the general manager of said hosiery mill or manufacturing plant, to-wit, Mr. K. Palme, during which time the said K. Palme was receiving ten per cent. of the gross income from the gross sales made by the said plaintiff while in said hosiery mill as aforesaid, and while plaintiff was passing through the knitting department of said hosiery mill or manufacturing plant for the aforesaid purpose of selling lunches, candies, drinks, and other merchandise by invitation of said K. Palme, and by virtue of the aforesaid contract with him, and at a time when plaintiff was engaged in selling his wares or merchandise to an employee of the defendant corporation and without any previous warning or knowledge that he was in any danger of being attacked by any person, the said defendant Mayfield Burroughs, who was then and there working for the defendant corporation in the knitting department of its said hosiery mill or manufacturing plant, suddenly pounced upon the plaintiff with an open knife and, without exchange of any words at all with plaintiff on that day, suddenly proceeded to stab and cut plaintiff with said knife in his neck or near the jugular vein on the left side of his neck and on the collar bone, and also stabbed and cut plaintiff in the back and left side at or near his kidneys and lungs to the extent that it required about eighty-two stitches to sew wounds up; that said gashes and stabs were deep" and caused the plaintiff to suffer great physical and mental pain and to be permanently injured in his health and strength.
The declaration further averred that: "One or more of the officials of the defendant corporation knew at the time and before plaintiff sustained his aforesaid injuries that the said Mayfield Burroughs had participated in the personal encounters referred to, and knew that he was a person who possessed a violent and ungovernable temper, and that he was in the habit of resorting to the use of a knife in personal encounters as above stated in this declaration, and that one or more of said officials knew that the said Mayfield Burroughs intended to attack and cut plaintiff as he did attack and cut him at the aforesaid time and place and actually encouraged him so to do, but that one of said officials who possessed said knowledge talked with plaintiff on the day that he sustained the aforesaid injuries and knife wounds about twenty minutes before he sustained the same at a time when plaintiff was already in said hosiery mill or manufacturing plant for the purpose of selling lunches, merchandise, etc., as above stated, and that said official then and there advised plaintiff that they had given the said Mayfield Burroughs a check with which to pay the plaintiff the indebtedness that was owing to the plaintiff by the said Mayfield Burroughs, and that the said Mayfield Burroughs would hand the check to plaintiff as he passed through said hosiery mill or manufacturing plant; that said official of the Alden Mills then and there knew that the said Mayfield Burroughs had planned or expressed an intention to attack plaintiff and cut him, as aforesaid, but the said official kept said knowledge and information to himself, so far as plaintiff was concerned."
The declaration then averred that the plaintiff did not have any information of any intention or purpose on the part of the said Burroughs to attack and cut him or to do any act of personal violence to him on the occasion in question, and charged that:
The defendant the Alden Mills "was negligent in retaining the said Mayfield Burroughs in its employment after having acquired knowledge of his aforesaid violent temper and vicious disposition and habits with reference to personal encounters, and more especially for having retained the said Mayfield Burroughs in its employment and permitting him to work, and without any restrictions having been placed upon him whatever, on the day that he pounced upon plaintiff and stabbed him and cut him, as aforesaid, after having acquired knowledge of his aforesaid vicious and violent intentions toward plaintiff, knowing that plaintiff would pass through said hosiery mill or manufacturing plant and would be thrown at or near the said Mayfield Burroughs in connection with his custom of selling lunches, wares, and merchandise, as aforesaid; and that the defendant corporation was also guilty of negligence in concealing from plaintiff the knowledge that it had, by and through its official or officials, of the fact that the said Mayfield Burroughs intended to do personal violence to plaintiff at said time and place and in extending to plaintiff an invitation, after having acquired said knowledge, to come into said hosiery mill or manufacturing plant as per his said custom, and in encouraging the said plaintiff to go to or come in contact with the said Mayfield Burroughs at said time and place; that the said defendants became and were and are jointly and severally liable to plaintiff for the aforesaid personal injuries that were and are suffered and sustained by him, and the resulting damages to plaintiff were and are the direct and proximate result of the joint or concurrent negligence of both of the defendants as expressed in this declaration."
To this declaration the defendants filed a plea of the general issue, and, after the beginning of the trial, by leave of the court, filed a plea setting up that the action was barred by reason of the statute which requires that all actions for assault or assault and battery shall be commenced within one year next after the cause of such action accrued, and not after.
The plaintiff demurred to this special plea on the ground, among others, that the cause of action against the Alden Mills is based primarily upon its negligence in failing to protect the plaintiff as far as it reasonably could from violence by its employee while he was upon its premises as an invitee, and in failing to advise plaintiff of the known danger that awaited him at the hands of its employee upon the day plaintiff was cut, after the defendant corporation knew of such danger and of the threats of personal violence that had been made by the said Burroughs against the plaintiff, and in retaining the said Burroughs in its employment after having acquired knowledge of the fact that he was a man of high and ungovernable temper, and was a quarrelsome and dangerous man, who was likely to severely cut and injure the plaintiff, and that the assault of Burroughs on the plaintiff was a direct result or consequence of this negligence of the defendant corporation, and therefore is controlled by the six-year statute of limitations.
This demurrer to the special plea was overruled, and at the conclusion of the plaintiff's testimony a motion to exclude the same and grant a peremptory instruction in favor of both defendants was sustained, and from the judgment entered in pursuance of this peremptory instruction plaintiff prosecuted this appeal.
The material facts as shown by the testimony offered by the plaintiff are substantially as follows:
Under an arrangement with appellee's general manager, the appellant was permitted to go through the said mill plant twice each day for the purpose of selling lunches, cold drinks, and sundries to the employees of appellee, and for this privilege the appellant was required to pay to the appellee ten per cent. of his gross sales. The defendant Burroughs and the appellant were friends, and Burroughs was indebted to appellant. Two days before the appellant was cut by Burroughs, the general manager and the superintendent of one of the departments of the appellee the said Alden Mills interviewed the appellant in reference to the purchase of this indebtedness at a discount, and it was agreed that they would purchase the same, provided Burroughs would agree for them to take a portion of it out of his wages each week. The appellant mentioned this agreement to Burroughs, and as a result of the discussion which followed, a fight between them ensued. After this fight they shook hands and apparently became friends again. On the following day the appellant saw Burroughs when he made his rounds through the mill, but nothing occurred to indicate that Burroughs had any intention of renewing the difficulty. The plaintiff testified that while he was making his usual trip through the mill on the following day he met Mr. Goldman, superintendent of several of the departments of the mill, and that Goldman told him he had given Burroughs a check for the amount due the plaintiff, and that Burroughs said he would pay the plaintiff off that morning. When the plaintiff reached the knitting department where Burroughs worked, and while the plaintiff was engaged in making a sale, Burroughs approached him, and without a word or any sort of warning struck him with a knife and seriously cut and injured him.
One witness testified that a short time before the appellant was assaulted, Mr. Goldman, superintendent of the mill, told him that Burroughs had said that:
"If he [the appellant] came through the mill again, he was going to cut his damned head off."
Another witness testified that a few minutes before the assault Goldman told him that:
"He gave Burroughs a check that morning, and if he [the appellant] did not mind he would get his head knocked off."
There was also some testimony tending to show that the general reputation of the said Burroughs for peace or violence was bad.
As to the appellee, the declaration is not one of trespass vi et armis, but the gravamen of the cause of action alleged is the negligence of the appellee in retaining in its employment a servant who was known to have a violent temper and vicious disposition and habits, and its negligence in extending an invitation to the appellant to come into said mill plant and encouraging him to come into contact with said employee, while concealing from him the knowledge which it had, through its official, that said employee intended to do personal violence to the appellant, and in failing to warn the appellant of the known danger of a violent assault by said employee. To such a cause of action the six-year statute of limitations applies.
Conceding for the purpose of this decision that the testimony fails to show that the appellee had such knowledge of the vicious propensities of the defendant Burroughs, as would render it liable to the appellant for the assault by such employee by reason of the fact that it retained the said Burroughs in its employ, still we are of the opinion that it was error to grant the peremptory instruction requested by the appellee. While the appellant was not an employee of the appellee, he was, according to the testimony offered by him, an invitee upon the premises, engaged in business with its employees under an agreement or contract in which the appellee had a beneficial interest, and the appellee owed to such invitee the duty of exercising reasonable care to protect him from known dangers. There is testimony tending to show that appellee's superintendent knew that the appellant was in imminent danger of suffering serious bodily injury and harm at the hands of the defendant Burroughs, if he came in contact with the said Burroughs on that occasion, and he not only did not warn the appellant of this imminent danger, but, on the contrary, he gave the appellant information that would lead him to believe that Burroughs desired to settle his indebtedness to him, and which would naturally tend to induce the appellant to seek out the said Burroughs for the purpose of collecting the indebtedness. Since the appellee, through its superintendent in charge of the plant, had knowledge of the threatened danger to which the appellant would be subjected if he came in contact with its employee, Burroughs, while passing through said plant, as was his custom under his contract and agreement with the appellee, we think the exercise of reasonable care required this superintendent to warn the appellant of the danger rather than to encourage him to seek out the said Burroughs and thereby incur the risk and danger of great bodily injury; and for such failure of this superintendent to exercise reasonable care to protect the appellant from the threatened and impending danger we think the appellee would be liable. In addition to the testimony showing that the appellee, through its superintendent, had knowledge of the threatened danger to appellant, there was testimony tending to show that the superintendent had sufficient knowledge of the vicious disposition of the said Burroughs to cause him to appreciate the gravity of the danger, and we are of the opinion that the requested peremptory instruction should have been refused.
The judgment of the court below will therefore be reversed, and cause remanded.
Reversed and remanded.