Opinion
No. 32299.
June 8, 1936. Suggestion of Error Overruled September 21, 1936.
1. MASTER AND SERVANT.
Where authority was given landlord's son who was not a general agent of landlord to ascertain condition of premises and to request removal of tenant if son deemed it advisable, son's alleged assault and battery committed on person of tenant held not conduct within "scope of employment" and hence landlord was not liable for injuries allegedly inflicted on tenant by son.
2. MASTER AND SERVANT.
Master may be held liable for acts of agent within scope of his employment, although such acts may be consciously criminal or tortious.
3. MASTER AND SERVANT. In determining whether agent's act is within "scope of employment," so that master is liable therefor, question is whether agent's conduct is so unlike that authorized that it is substantially different.
"Scope of employment" has no fixed, legal meaning, and ultimate question is whether it is just that the loss resulting from the servant's acts should be considered one of the normal risks of the business in which the servant is employed, which that business should bear.
APPEAL from chancery court of Warren county. HON. J.L. WILLIAMS, Chancellor.
Vollor Teller, of Vicksburg, for appellant.
There is a horde of authority to the effect that this honorable court will not reverse a decree of the chancellor, on the facts, unless in a case of manifest error, that is, as the decisions hereinafter cited disclose: When the finding is against the overwhelming weight of the evidence, or when the testimony, upon which the finding is predicated, is supported by improbable or unreasonable proof, or, as further aptly phrased, in the words of this honorable court, when "according to our view of the facts and the promptings of our conscience, the learned chancellor was manifestly wrong."
Gillis v. Smith, 114 Miss. 665, 75 So. 451; Clark v. Dorsett, 128 So. 79, 157 Miss. 365; Louis Werner Sawmill Co. v. Northcutt, 134 So. 156, 161 Miss. 441; Fidelity Casualty Co. v. Cross, 95 So. 631, 131 Miss. 632; Stevens v. Magee, 81 Miss. 644, 33 So. 73; Quock Ting v. United States, 140 U.S. 417, 35 L.Ed. 501, 11 Sup. Ct. Rep. 733.
The testimony of a witness may be so impossible and absurd and self-contradictory that it should be deemed a nullity by the court.
Graham v. Chicago N.W.R. Co., 143 Iowa 604, 119 N.W. 708; Wray v. Southwestern Electric Light Water Power Co., 68 Mo. App. 380; Catlett v. Chestnut, 146 So. 246; Newton v. Homochitto Lbr. Co., 162 Miss. 20, 138 So. 564.
We concede that it is "rarely the case" that the proof, which "tends to sustain the issue, is so unreasonable and contradictory within itself that it cannot be reasonably accepted as true." When such, however, is actually the case, then in an action, at law, the issue should be withdrawn from the jury and a peremptory instruction should be granted. This is the law.
Newton v. Homochitto Lbr. Co., 162 Miss. 20; Scroggins v. Metropolitan St. R. Co., 138 Mo. App. 215, 120 S.W. 731.
There was no relationship of principal and agent as to acts complained of. Agency must be proven, and the burden was on the appellee.
An agent may not, by assumption of a task, bind his principal, when such was not authorized by or ratified by the principal.
Miller v. Teche Lines, Inc., 167 So. 52.
It is not enough that the act done may bear some relation to the authorized duties (Natchez, C. M.R. Co. v. Boyd, 141 Miss. 593, 600, 107 So. 1) but the incidental connection should be so close and definite that it can be safely said that the damage resulting from the servant's act may be justly imposed upon the master as one of the normal risks which the business should bear, and that the act complained of was one which the master or principal could have reasonably anticipated as probable in view of the terms of the employment and the general situation, known to the master or principal or of which he had an adequate opportunity to know.
Hand v. Industrial Life, etc., Co., 165 So. 616; Y. M.V.R. Co., 166 Miss. 79, 145 So. 743; Miller v. Teche Lines, Inc., 167 So. 52.
It should here be remembered that appellant had and was conducting no general business. Mr. Hahn, Jr., was not a general agent, and his authority was expressly limited. The appellee was, in effect, a caretaker of the property. That was the primary, major consideration of her being thereon, which fact the record definitely and undisputably discloses. Mr. Hahn, Jr., was, under those circumstances, authorized, on appellant's behalf, to request appellee's removal if he deemed such course advisable. That was the extent and limit of his authority, the scope of his agency and right to bind the appellant in the premises.
Russell v. Palatine Ins. Co., 106 Miss. 290, 63 So. 644.
It is well settled in this state that when the agent acts beyond the scope of his appointed duties and exceeds his authority the principal is not liable; and, further, that the agent cannot enlarge his authority by unauthorized acts.
White v. Lee, 97 Miss. 493, 52 So. 206; Benefit Assn. v. Smith, 101 Miss. 332, 58 So. 100; Ismert-Hincke Milling Co. v. Natchez Baking Co., 124 Miss. 205, 86 So. 588; Loper v. Y. M.V.R. Co., 145 So. 743, 166 Miss. 79.
While a criminal act or action may be within the scope of an agent's implied powers, the courts are always careful not to extend the rule of respondeat superior beyond its reasonable and legitimate bounds.
A.L.I. Restatement, Agency, 516, par. 231.
W.W. Ramsey and Brunini Hirsch, all of Vicksburg, for appellee.
It is a matter of constitutional right to all parties litigant to have their issues of fact submitted to and passed upon by the jury or chancellor, according to the ordinary practices of the forum in which a case is for trial; and it is a matter of constitutional right that the successful party there shall not have his cause reviewed except upon the record as there made, and that the findings of fact as there determined shall not be reversed unless clearly shown to be erroneous. It has, therefore, been the uniform rule that the chancellor's finding on the facts is reviewable on appeal only when manifestly wrong. This rule has its foundation not only in the imperative operation of the constitutional ordinances mentioned; it has a further controlling reason in this: The opportunities afforded to the trial court are far better for arriving at correct conclusions and findings upon all the questions of fact.
Griffith's Chancery Practice, page 783, sec. 674.
The complainant in her original bill alleged that Mrs. Hahn owned the premises known as 2022 Cherry Street, and also averred that the acts complained of were committed by Mrs. Hahn's son while acting for and on behalf of the defendant. The defendant, Mrs. Hahn, then filed her sworn answer and therein swore "that the said Jack Hahn, Jr., was directed and instructed by said defendant to ascertain the condition of her aforementioned property and the care taken thereof by complainant, and to request the removal of complainant in the event he deemed such a course advisable."
According to the appellant's contention, they should now raise the point that complainant failed to prove that the defendant owned the premises known as 2022 Cherry Street. We feel confident that counsel for the appellant must be aware of the elementary rule of practice in the chancery courts, requiring the parties to specifically deny or admit every essential fact alleged by either party. The purpose of that rule, naturally, is to narrow the issues as much as possible. That is what the appellant did in this case, namely, admitted the directions and instructions that had been given to Hahn. Of course, the complainant did not go into and attempt to prove the agency of Hahn in the face of that admission. We feel that counsel for the appellant will admit that at the opening of the trial of this case, after the pleadings had been read to the learned chancellor, the complainant through her attorneys specifically called the attention of the honorable lower court to the fact that the defendant had admitted the ownership of the property and the agency of her son. That was not denied at that time by the defendant.
Inasmuch as the appellant had instructed her son to use his judgment as to whether or not the complainant should be removed from the premises, there can be no question whatsoever but that his acts were done in the furtherance of that instruction, and within the scope of his agency. He was attempting to remove the complainant at the time that the assault occurred. In other words, he was trying to remove her by turning out the lights, by locking the doors, and by freezing her out, the latter variation of which was to deprive the complainant of kindling wood with which to heat the house. All of these things were within the scope of his employment.
Argued orally by Landman Teller, for appellant, and by Edmund L. Brunini, for appellee.
This case arose in the chancery court of Warren county by bill in attachment under sections 173, 174, Code 1930, filed by appellee, Mrs. Owens, against appellant, Mrs. Hahn, a resident of the state of Florida. The bill was predicated upon appellee's claim for unliquidated damages for an unlawful assault and battery alleged to have been committed upon her by Jack Hahn, Jr. son of the appellant, while acting for and on her behalf in an effort, as alleged, to evict appellee from a house in Vicksburg owned by the appellant.
Appellant filed a sworn answer denying that any assault and battery had ever been committed by her son; denying the allegation of agency, and denying that Jack Hahn, Jr., acting for her, or in his individual capacity, committed any assault upon appellee, or offered her any other indignity. The answer further contained the statement: "That the said Jack Hahn, Jr., was directed and instructed by said defendant to ascertain the condition of her aforementioned property and the care taken thereof by complainant and to request the removal of the complainant in the event he deemed such a course advisable."
The house and lot belonging to appellant were levied on in the attachment proceedings.
The court heard the evidence and entered a decree of liability for the appellee against the appellant in the sum of one thousand five hundred dollars.
On November 5, 1934, Jack Hahn, Jr., appeared at the residence in Vicksburg owned by his mother which Mrs. Owens with her family was occupying at the time, having acquired possession thereof with the permission of a real estate agent, representing Mrs. Hahn, either as a tenant or as a caretaker of the property. The amount of rent appellee was to pay therefor was apparently insignificant. On the following day, Tuesday, Jack Hahn, Jr., requested appellee to vacate and surrender the premises by Thursday, to which she agreed, but complained that the time was short. She did not vacate the premises on Thursday, and, according to her testimony, and that of her witnesses, Jack Hahn, Jr., instituted a series of annoyances such as pulling out fuses so that the lights would not function; locking the door while the family was out so they could not re-enter, and on Sunday morning, when appellee desired to build a fire, she found her wood had been stored in an outhouse, and Jack Hahn, Jr., being present, notified her that she could not take this wood. She did not undertake, at that time, so to do, but at eleven o'clock on the same day she determined to secure wood to build a fire, and, thereupon, according to her contention, when she and Jack Hahn, Jr., were struggling for possession of the wood, he assaulted and beat her, as a consequence thereof, she was bruised in many places. She was corroborated by two witnesses, her daughter and daughter-in-law, who claimed to have seen the whole difficulty. Another witness, a man called in by the daughter to protect her mother, did not see any blows struck, but heard the argument. Appellee did not report this assault and battery to the police.
It is alleged that Jack Hahn, Jr., at some time during this controversy, procured some kind of writ issued by a justice of the peace to serve upon appellee. The nature of this writ is not shown.
Jack Hahn, Jr., stoutly denied that there was any such difficulty; that he did not interfere with the wood, and did not assault appellee. He was corroborated by a lady he is alleged to have been visiting at the time.
There is other evidence unnecessary to detail here.
The appellant assigns two grounds for reversal: (1) That the decree of the chancellor is manifestly wrong, because the evidence offered on behalf of the appellee was unreasonable, and the conduct of the parties was unnatural and unreasonable, and (2) that the act of Jack Hahn, Jr., if he did assault appellee, was not within the scope of his employment or agency.
We deem it unnecessary to pass upon the first ground urged for reversal, and immediately address ourselves to the second which will dispose of the case.
The record is entirely silent on the question of agency, or the duties of Jack Hahn, Jr., except as set forth in the above statement from the pleadings on that subject, and the only light shed upon the scope of Jack Hahn's employment by his mother is to be found in the answer that he was directed and instructed to ascertain the condition of the house and lot and the care taken thereof by appellee, and to request her removal, in his discretion, if he deemed it advisable.
On the facts of this case, while it may be said that the course pursued by Jack Hahn, Jr., might be a way of furthering the master's business or interest, the serious question presented is whether or not it was within the scope of his employment.
It will be observed that the prime duty imposed upon Jack Hahn, Jr., was to request, in his discretion, the appellee to remove from the premises of the master. Can it be said that this limited, designated authority from a principal to an agent is an implied agency to beat a tenant severely, or even strike her at all, or that the master should be held liable therefor, if that is done? We are of the opinion that the doctrine of respondeat superior, on the facts of this case, did not warrant the court below in holding that assault and battery was within the scope of Jack Hahn, Jr.'s, employment (or agency).
We have here pleadings carefully drawn, according to which Jack Hahn, Jr., was not invested with authority to procure an eviction of appellee from his mother's premises. Another case might be presented if he had been given such authority, and in an effort to evict had resorted to forcible means, even to the extent of committing a crime, since, in such a case, he might be held to have been acting within the scope of his employment or agency; but his agency in the case at bar was an exceedingly limited one, his duties being definitely prescribed. A principal or master may be held liable for the acts of an agent within the scope of his employment, although such acts may be consciously criminal or tortious. See Restatement of Law, Agency, section 231. But, even in that event, there are limitations unnecessary to be here discussed.
In the case at bar, it is a matter of degree, the question being whether or not the conduct is so unlike that authorized that it is substantially different. Restatement of Law, Comment, section 231; Loper v. Yazoo M.V.R. Co., 166 Miss. 79, 145 So. 743. In this last-mentioned case the court said that the term "scope of employment" has no fixed, legal meaning, and that the ultimate question is whether it is just that the loss resulting from the servant's acts should be considered one of the normal risks of the business in which the servant is employed, which that business should bear. American Law Institute Restatement, Agency, section 454.
Jack Hahn, Jr., was not a general agent of the appellant, and the fact that he is her son does not add to the scope of his employment, and, from the facts of this record, it would be most unfair to hold that the mother, as a reasonably prudent person, should have had reason to anticipate that her son would commit an act of violent and vicious assault and battery upon a woman, and certainly it would not be one of the normal risks a person would take in requesting another to do, or not to do, a particular thing. The rule of liability cannot be extended to an unreasonable degree. In Miller v. Teche Lines, Inc. (Miss.), 167 So. 52, 53, it was held that, "It is not enough that the act done may bear some relation to the authorized duties, Natchez, C. M.R. Co. v. Boyd, 141 Miss. 593, 600, 107 So. 1, but the incidental connection should be so close and definite that it can be safely said that the damage resulting from the servant's act may be justly imposed upon the master as one of the normal risks which the business should bear, and that the act complained of was one which the master or principal could have reasonably anticipated as probable in view of the terms of the employment and the general situation, known to the master or principal or of which he had an adequate opportunity to know. Hand v. Industrial Life, etc., Co. (Miss.), 165 So. 616."
In the case at bar, it will be noted that the appellant had no other property in Vicksburg than this house and lot, and had no general course of business there and no general agency. Her son, Jack Hahn, Jr., was simply invested with the power to request the appellee to vacate the premises. To commit an assault and battery is, to say the least of it, a most unusual method of making a simple request, and Jack Hahn, Jr., acted, in so doing, in such an unusual way, and so different from that which he was authorized to do, that his act constituted an entirely different thing. An instruction to an agent to request a tenant to vacate is so unlike the conduct of Jack Hahn, Jr., in committing the assault and battery, if he did, that it is substantially different and cannot be said to be incidental thereto.
We conclude, therefore, that Jack Hahn, Jr.'s acts were not within the scope of his employment, and that the appellee could not recover from his principal or master.
Reversed and decree here for the appellant.