Opinion
No. 33843.
November 13, 1939. Suggestion of Error Overruled December 11, 1939.
1. MASTER AND SERVANT.
A person may employ another person to act for him in any particular with respect to which he himself may act, and he may limit the scope of action of the other person, giving to him only such powers to do such acts as he may deem appropriate or proper.
2. MASTER AND SERVANT.
A servant has no power to bind his master outside of the real or apparent scope of his authority, and while engaged in the furtherance of the master's business, and if he does so, the master is not responsible for his acts.
3. MASTER AND SERVANT.
A master is liable only for the torts committed by his servants when they are done within the scope of authority, real or apparent, and also in furtherance of the master's business.
4. PRINCIPAL AND AGENT.
An act is within the "apparent" scope of an agent's "authority" when a reasonably prudent person having knowledge of the nature and usages of the business is justified in supposing that the agent is authorized to perform it from the character of the duties which are known to be intrusted to him.
5. PRINCIPAL AND AGENT.
The "apparent authority" of an agent which will bind his principal is such as the agent appears to have by reason of the actual authority which he has, or such, though not actually granted, as the principal knowingly permits the agent to exercise or holds him out as possessing.
6. PRINCIPAL AND AGENT.
"Apparent authority" in an agent to represent his principal exists where the principal permits the agent to exercise powers not expressly granted, but such apparent power must be determined not by the acts of the agent, but by the acts of the principal, and it must appear that they were relied and acted on in good faith to justify a third person in dealing with the agent.
7. MASTER AND SERVANT.
In absence of evidence that employer's night watchman had authority to go outside premises inclosed by a tall wire fence, employer was not liable for injuries allegedly inflicted on plaintiff by night watchman outside inclosure in allegedly ordering plaintiff to move on.
APPEAL from the circuit court of Pike county; HON. J.F. GUYNES, Judge.
Roach Jones, of McComb, for appellant.
The court erred in holding that the night watchman was not acting within the scope of his authority at the time of his assault upon the appellant.
Everything must be considered as proven which the evidence establishes either directly or by reasonable inference against the party who asks for a peremptory instruction.
Lee County Gin Company v. Middlebrooks, 161 Miss. 422, 137 So. 108; Gravette v. Golden Saw Mill Trust, 170 Miss. 15, 154 So. 274.
The appellant in this case is entitled to the inference that when the night watchman came out of the enclosed premises of the appellee and assaulted appellant he was acting for and on behalf of the appellee and preventing what he considered a threatened trespass or invasion into the enclosed premises of the appellee. It is true that the night watchman testified, when being questioned by the appellee that his duties were confined to the enclosed premises of the appellee, but in our opinion this fact is not enough for it to be said that the appellee was entitled to its peremptory instruction.
Walters v. Stonewall Cotton Mills, 136 Miss. 361, 101 So. 495; Loper v. Yazoo M.V.R. Co., 166 Miss. 79, 145 So. 743; Barmore v. Vicksburg S. P. Railway Co., 85 Miss. 426, 38 So. 210; Richburger v. Express Co., 73 Miss. 161, 18 So. 922; Railway Company v. Hunter, 74 Miss. 444, 21 So. 304; Southern Bell Telephone Telegraph Company v. Quick, 167 Miss. 438, 149 So. 107; Gill v. Dantzler Lumber Company, 153 Miss. 559, 121 So. 153; Alden Mills v. Pendergraft, 149 Miss. 595, 115 So. 713; Wright v. Payne, 127 Miss. 565, 90 So. 248; Indianola Cotton Oil Co. v. Crowley, 121 Miss. 262, 83 So. 109; Primos v. Gulfport Laundry Cleaning Co., 157 Miss. 770, 128 So. 507; Singer Sewing Machine Company v. Stockman, 171 Miss. 209, 157 So. 366; Wilson v. Fowler Packing Co., 255 P. 1109, 123 Kans. 470; Interstate Co. v. McDaniel, 178 Miss. 276, 173 So. 165.
The conflict in the testimony of the appellant and the witness, Harry Bates, and that of the night watchman, Ben Harris, presented a question of fact for the jury as to whether the night watchman was acting within the scope of his authority at the time of the assault upon the plaintiff.
Southern Bell Telephone Telegraph Company v. Quick, 167 Miss. 438, 149 So. 107; Ritchie v. Waller, 63 Conn. 155, 28 A. 29, 38 Am. St. Rep. 361; Barmore v. Vicksburg S. P. Railroad Company, 85 Miss. 426, 38 So. 210; Loper v. Yazoo M.V. Railroad Co., 166 Miss. 79, 145 So. 743.
Watkins Eager, of Jackson, for appellee.
Our learned friends seem to entertain the view that a jury question is raised simply because the alleged assault was unjustifiably committed by Mr. Harris at a time when he was an employee of appellee. It is, of course, essential that the relation of employer and employee exist, but it is just as essential that at the particular time the act of the employee must be not only within the scope of his employment but, as this court has said on numerous occasions, such act must be in furtherance of the master's business. Unless the act is one in furtherance of the master's business, then the master is in no wise concerned. We earnestly submit that the master is no more liable here for Mr. Harris' acts than the owners of the Standard Life Building would be if the night watchman would leave the entrance of the building and walk fifty or one hundred feet down the street and engage in a controversy, either rightfully or wrongfully, with a third party.
Natchez, C. M.R. Co. v. Boyd, 141 Miss. 593, 598, 107 So. 1; Davis v. Price, 133 Miss. 236, 97 So. 557; Wells v. Robinson Bros. Motor Co., 153 Miss. 451, 121 So. 141; Craft v. Magnolia Stores Co., 161 Miss. 756, 764, 138 So. 405; Louisville N.R. Co. v. Corlander, 129 Miss. 24, 91 So. 699; Hahn v. Owens, 176 Miss. 296, 168 So. 622; Thomas-Kincannon-Elkin Drug Co., Inc. v. Hendrix, 175 Miss. 767, 168 So. 287; Canton Cotton Warehouse Co. v. Pool, 78 Miss. 147, 28 So. 824; Burke v. Shaw, 59 Miss. 443; American Railway Express Co. v. Wright, 128 Miss. 593, 91 So. 342; Western Union Telegraph Company v. Stacey, 162 Miss. 286, 139 So. 604.
39 C.J. 1307, correctly states the applicable principle, to-wit: "So to render the master liable the authority need not be express but may be implied from the nature of the employment; and it matters not whether the act of the servant is due to a lack of judgment, infirmity of temper, or the influence of passion, or that the servant goes beyond his strict line of duty and authority in inflicting such injury, or even that he disobeyed the master's instructions. On the other hand, if the assault was committed by the servant, not as a means or for the purpose of performing the work he was employed to do, but in a spirit of vindictiveness or to gratify personal animosity, or to carry out an independent purpose of his own, then the master is not liable."
Argued orally by Bert Jones, for appellant, and by Pat Eager, for appellee.
F.T. Tarver, the appellant, was plaintiff in the court below and brought suit against J.W. Sanders Cotton Mill, Inc., and Ben Harris, an individual who was night-watchman at the mill of the defendant J.W. Sanders Cotton Mill, Inc. It was alleged in the bill that the J.W. Sanders Cotton Mill, Inc., owns a large tract of land at Magnolia, Mississippi, on a part of which the mill is located; that the mill and the outlying warehouses and offices are surrounded by a heavy steel wire fence, about 10 feet high, and that on the south of the mill there is a spur railroad track which extends from said mill southeasterly across the land of the defendant J.W. Sanders Cotton Mill, Inc., to the tracks of the Illinois Central Railroad Company, and that at the point where said spur track intersects said wire fence on the south there is a large double gate, which, when open, leaves a space wide enough for railroad cars to enter the enclosed premises; that south of the said wire fence there is a path or roadway which extends across the premises of the J.W. Sanders Cotton Mill, Inc., leading to the houses of the employees of the said J.W. Sanders Cotton Mill, Inc., and that the said path or roadway crosses said spur track just a few feet south of the double gate; and that this path or roadway is used, with the knowledge and consent of said corporation, by the employees and also by members of their families and the general public at all times of the day and night in going to and from points south of the said mill to the business sections of Magnolia.
That on the night of the 26th of February, 1939, the defendant Ben Harris was employed by the defendant J.W. Sanders Cotton Mill, Inc., in the capacity of night-watchman, and among other duties of the said Ben Harris, as night-watchman, was the duty of preventing all persons not entitled to be within the enclosed premises of said Cotton Mill at night from entering said premises, and that Ben Harris also had general authority from the J.W. Sanders Cotton Mill, Inc., to protect and guard the property and premises of the Cotton Mill at night, and to prevent any unauthorized trespass thereon. It was then alleged that the plaintiff, about said date, was passing along said roadway or pathway and became sick and sat down on a cross-tie outside of the said enclosure, and that he was directed by Ben Harris to move on, that he told Harris he was sick and unable to move, and that Harris came out of the enclosure and assaulted him with a pistol, inflicting injury upon him; and that at the time Ben Harris committed the aforesaid assault he was acting within the scope of his employment as night-watchman of the J.W. Sanders Cotton Mill, Inc., and in and about the performance and discharge of his duties as such night-watchman; that the blows rendered the plaintiff unconscious, and that he was still suffering from injuries so inflicted, and that he brought suit for $10,000 actual and punitive damages.
On the trial Ben Harris was introduced as an adverse witness and testified that he was employed as night-watchman by the J.W. Sanders Cotton Mill, Inc., to prevent injuries and trespasses within the enclosed premises, wherein the mill and other buildings were situated, but that he had no authority to go outside of the enclosure and no duties to perform outside of the enclosure, but that his authority was limited to keeping persons, who do not belong inside, out of the enclosure, and protecting the property therein enclosed. Harris further testified that the appellant came along on the evening in question drunk and boisterous, and started to come in the mill enclosure, but did not or could not get over the fence, and that he started toward the gate and fell into a manhole, situated outside of the enclosure; that he (Harris) went out to assist the plaintiff to get out of the manhole and did assist in pulling him out, whereupon the plaintiff, being drunk, assaulted Harris, and that he struck the plaintiff in self-defense, but that he made no effort to make the plaintiff move on or to protect the property outside the enclosure from trespass.
The plaintiff and another witness introduced by plaintiff testified that the assault occurred outside of the enclosure, and that Ben Harris ordered the appellant to move on and that the appellant was sick and unable to move and that someone would come for him; and that Harris assaulted the appellant while he was sitting on the cross-tie, and knocked him to his knees and inflicted injuries upon him.
There was no dispute of Ben Harris' testimony as to the scope of his employment, and no evidence was introduced to show any statements or acts from the master J.W. Sanders Cotton Mill, Inc., as to any apparent authority, or any act from which such authority to go outside the mill could be deduced.
At the close of the evidence the court granted a peremptory instruction in favor of the J.W. Sanders Cotton Mill, Inc., and thereupon the plaintiff took a non-suit as to Ben Harris and appealed to this Court from the judgment entered upon the peremptory instruction.
It is fundamental that a person may employ a person to act for him in any particular where a person or corporation may act, and that he may limit the scope of action of the employee, giving to the employee only such power to do such acts as the master may deem appropriate or proper. The servant has no power to bind the master outside of the real or apparent scope of his authority and while engaged in the furtherance of the master's business, and if he does so the master is not responsible for his acts. The master is only liable for torts committed by servants when they are done within the scope of the authority real or apparent of the servant, and also in furtherance of the master's business. There are many cases in this state dealing with this subject, and it is sufficiently indicated in 10 Mississippi Digest, Master and Servant, key 302, (1) to (6), inclusive.
The term "apparent authority" has been often defined in books, and definitions thereof will be found in 1 Words and Phrases, Second Series, p. 241, under title "Apparent Authority." Among the best definitions thereunder that I have found, which are applicable to the present case, are the following: "An act is within the `apparent' scope of an agent's authority when a reasonably prudent person, having knowledge of the nature and usages of the business, is justified in supposing that he is authorized to perform it from the character of the duties which are known to be intrusted to him." Citing Townsend v. Missouri Pac. Ry. Co., 88 Kan. 260, 128 P. 389, 390.
"`The "apparent authority" of an agent, which will bind his principal, is such as the agent appears to have by reason of the actual authority which he has.'" (Citing authorities.)
"The `apparent authority' of an agent is such authority as the acts or declarations of the principal give the agent the appearance of possessing." (Citing authorities.)
"The `apparent authority' of an agent is that which, though not actually granted, the principal knowingly permits the agent to exercise, or which he holds him out as possessing." (Citing authorities.)
"`Apparent authority' in an agent to represent his principal exists when the principal permits the agent to exercise powers not expressly granted; but such apparent power is to be determined, not by the acts of the agent, but by the acts of the principal, and it must appear that they were relied and acted upon in good faith to justify a third person in dealing with the agent." (Citing authorities.)
It appears in the present case that the premises upon which the mill and the warehouses were situated were enclosed by a tall wire fence, and that the agent or night-watchman performed his duties in the enclosure. There is nothing to show that he had any other authority, and is testimony as to his authority is not contradicted by other proof. It is not customary, we think, for property owners to employ nightwatchmen to guard the wild wood or the vacant spaces. They may, of course, do so if they desire, but in the present case we do not think authority to go outside the enclosure can be presumed, and there is nothing to show that the master had knowledge that Harris was attempting to exercise any authority outside of the enclosure, or that he held him out as having such authority.
It follows from these views that the judgment of the court below must be affirmed.
Affirmed.