Opinion
No. 32242.
May 25, 1936.
MASTER AND SERVANT.
Retail drug store held not liable for injuries sustained by boy who sometimes delivered packages for drug store, who was called to drug store and given malted milk wherein drug store's employee allegedly had put in a laxative, where employee was employed only to sell soft drinks and there was nothing in evidence charging drug store with reason to suspect that employee would depart therefrom.
APPEAL from circuit court of Lee county. HON. THOS. H. JOHNSTON, Judge.
Blair Anderson, of Tupelo, for appellant.
It is the contention of appellant that it is not liable in this case, because its employee, Clyde Smith, was not engaged about the business of appellant at the time of the alleged injuries, but that he was engaged about a private enterprise and prank of his own.
Canton Co. v. Poole, 78 Miss. 147.
We cannot see any difference in the facts of the Canton Warehouse case and that of the instant case. Clyde Smith was employed to mix and sell palatable drinks for the appellant, but instead of that, he stepped aside from the purpose for which he was employed, concocted a drink containing twenty-four or twenty-five doses of Ex-Lax, which is injurious to the human body, and gave the same to appellee, resulting in his alleged suffering. The record shows that neither the appellant nor its officers knew anything about Clyde Smith's having done this until the next morning after it had been done.
L. N. Ry. v. Douglas, 69 Miss. 723.
In order for the master to be liable under the doctrine of respondeat superior, three things must be necessary: the injury complained of must have been inflicted by an employee of the defendant; the employee in inflicting such injury must have been acting within the apparent scope, at least, of his employment; even where the employee who inflicts the injury is acting within the apparent scope of his employment, his act must be done in furtherance of his master's business and for the accomplishment of the purpose for which he is employed.
International, Etc. Co. v. Anderson, 82 Tex. 516[ 82 Tex. 516]; Hudson v. Missouri Co., 16 Kans. 470; Little Miami v. Wetmore, 19 Ohio State, 110; Lakin v. Oregon Co., 15 Oregon 220; Wyllie v. Palmer, 137 N.Y. 248; Rudgeair v. Reading Co., 180 Pa. 333.
It seems to be a universal rule that where a servant steps aside from his master's business to engage in a prank, the relation of master and servant no longer exists, and the master is not liable for the wrongful act.
26 Cyc. 1538; 18 R.C.L. 796; 39 C.J. 1296, sec. 1492.
C.B. Hutchinson, of Tupelo, for appellee.
There can be no doubt but what an employer may be held liable civilly to a third person for the torts, negligence, frauds, deceits, concealments, misrepresentations, and other malfeasances or misfeasances of his employee.
18 R.C.L. 775.
The modern rule declares that the corporation is answerable for the torts of its employees in the same cases and in the same manner and form of action as other employers.
18 R.C.L. 777.
The doctrine of the liability of the master for the wrongful acts of his servant is predicated upon the maxims respondeat superior and qui facit per alium facit per se.
18 R.C.L. 787.
It is the contention of appellee that the lower court was correct in overruling the motion of appellant for a direct verdict for defendant, Thomas-Kincannon-Elkin Drug Co., Inc.
Where a servant steps aside from his master's business and does an act not connected with the business, which is hurtful to another, manifestly the master is not liable for such act, but if the servant continues about the business of the employer, adopts methods which he deems necessary, expedient or convenient, and the methods adopted prove hurtful to others, the employer is liable.
18 R.C.L. 796.
When the employee's wrongful act is one within the scope of his employment, both employer and employees must respond in damages.
18 R.C.L. 817; I.C.R.R. Co. v. Coley, 121 Ky. 385, 89 S.W. 234, 1 L.R.A. (N.S.), 370; Hill v. Caverly, 7 N.Y. 215, 26 Am. Dec. 735; Richberg v. American Express Co., 73 Miss. 161; Alabama R. Co. v. Brooks, 69 Miss. 168, 13 So. 847, 30 Am. St. 528.
In order to escape liability for injuries to a third person it devolves upon the master to prove that the servant had abandoned the duties of his employment and gone about some purpose of the servant's own, in which the master's business was not concerned, and which was not incident to the employment for which the servant was hired.
Barmore v. Vicksburg R. Co., 85 Miss. 426, 38 So. 210, 70 L.R.A. 627.
This is an appeal from a judgment against the appellant and Clyde Smith for the commission of a tort against the appellee. Smith did not appeal.
The appellant is engaged in the retail drug business, including the sale of soft drinks. Clyde Smith was employed by it to sell such drinks, in doing which he sometimes mixed medicine with the drinks at the request of the customer. The appellee is an employee of the Western Union Telegraph Company, with which company the appellant had an arrangement by which its messenger boys delivered packages for the appellant.
According to the evidence for the appellee, he was called to the appellant's place of business, but by whom does not appear, and on arriving there Smith said to him: "Here's a malted milk a lady called for about an hour ago . . . you can have it." The appellee drank the malted milk and immediately became very nauseated, continuing so for several days. A few minutes prior to the delivery of the drink to the appellee, Smith had put into it a part of the contents of a box of Ex-Lax, saying that he intended to give it to one of the boys. Ex-Lax is a laxative to be taken in small quantities. All this was denied by Smith, who stated that he had poured out a soft drink for another person without adding anything thereto, and that that person gave it to the appellee. The jury accepted the appellee's version of the matter.
The appellant requested, but was refused, an instruction directing the jury to return a verdict in its favor. This instruction should have been granted.
Smith's employment, as disclosed by the evidence, was simply to sell soft drinks for the appellant; and there is nothing in the evidence charging the appellant with any reason to suspect that he would in any way depart therefrom. In administering the drug to the appellee, if such he did, he acted wholly without the scope of his employment, not in furtherance of the appellant's business, and solely for a purpose of his own. It is true that for the accomplishment of that purpose he used facilities supplied him by the appellant; nevertheless it is not liable for the injury thereby inflicted on the appellee. 1 Restatement of the Law of Agency, sec. 238; 39 C.J. 1296; Canton Cotton Warehouse Co. v. Pool, 78 Miss. 147, 28 So. 823, 84 Am. St. Rep. 620.
The judgment of the court below will be reversed in so far as it imposes liability on the appellant, and the cause as to it will be dismissed.
Reversed and dismissed.