Opinion
No. 32194.
April 6, 1936.
1. PRINCIPAL AND AGENT.
Principal is liable for tortious acts of agent when tort has been committed in furtherance of business of principal and within scope of employment of agent.
2. PRINCIPAL AND AGENT.
Tortious act of agent, to be within scope of his agency so as to render principal liable, must be committed in course of agent's appointed duties, or be of the same general nature as those authorized or incidental to the authorized conduct.
3. PRINCIPAL AND AGENT.
Incidental connection between tortious act of agent and his authorized duties must be so close and definite that the damage resulting from agent's act may be justly charged to normal risk of the business and the principal could reasonably have anticipated agent's act as probable in view of the terms of agency.
4. CARRIERS.
Where agent for motor carrier was employed as a ticket and express agent only, act of agent in shifting bus stop sign from place next to curb to center of street when the parking space was so shifted held beyond scope of his agency, so that carrier was not liable for injuries suffered by passenger when school truck collided with sign.
APPEAL from circuit court of Pearl River county. HON. HARVEY McGEHEE, Judge.
Grayson B. Keaton, of Picayune, and J.M. Morse, of Poplarville, for appellant.
Every material allegation in the declaration was supported by ample testimony to carry the case to the jury, and it was error on the part of the court below to give a peremptory instruction, or to sustain a motion to exclude the evidence, as the declaration stated a cause of action and the testimony supported the declaration.
Anderson v. Telephone Co., 86 Miss. 341, 38 So. 786.
A peremptory instruction will be error unless the evidence considering it to be absolutely true discloses no legal right in the party against whom the instruction is given.
Fore v. A. V. Ry., 87 Miss. 211, 39 So. 493, 690.
It is error to give a peremptory instruction on a point which the testimony is conflicting.
Bell v. So. Ry., 94 Miss. 440, 49 So. 120; Skipworth v. McDonald, 95 Miss. 50, 48 So. 964; Byers v. McDonald, 99 Miss. 42, 54 So. 664; Romano v. Vicksburg Ry., 39 So. 781; Bonner v. N.O. N.E. Ry., 40 So. 65; Elledge v. Gray, 41 So. 2; Bryant v. Enochs Lbr. Mfg. Co., 94 Miss. 454, 49 So. 113; Bowling v. Red Snapper Sauce Co., 97 Miss. 785, 53 So. 394; Dodge v. Cutrer, 101 Miss. 844, 58 So. 208; Hardy v. Masonic Benefit Assn., 103 Miss. 108, 58 So. 48; Walker v. L.N. Dantzler Lbr. Co., 103 Miss. 826, 60 So. 1013; M. O. Ry. v. Carpenter, 104 Miss. 706, 61 So. 693; Offut v. Barrett, 106 Miss. 31, 63 So. 333; Waldrop v. Crittended Co., 107 Miss. 595, 66 So. 644; National Life Acc. Ins. Co. v. DeVance, 110 Miss. 196, 70 So. 83; Jones v. Knotts, 110 Miss. 590, 70 So. 701.
The court goes still further and holds that everything must be considered as proven which the evidence established, either directly or by reasonable inference, against the party who asked for the exclusion of the evidence and a peremptory instruction.
Dean v. Brannon, 139 Miss. 312, 104 So. 175; McKinnon v. Braddock, 139 Miss. 424, 104 So. 154; Wise v. Peugh, 140 Miss. 479, 106 So. 81; N.O. N.E. Ry. v. Jackson, 140 Miss. 375, 105 So. 770; N.O. N.E. Ry. v. Martin, 140 Miss. 864; St. Louis S.F. Ry. v. Nixon Phillips, 141 Miss. 677, 105 So. 478; Yates v. Houston Murray, 141 Miss. 881, 106 So. 110; G. S.I. Ry. v. Hales, 140 Miss. 829, 105 So. 458.
Can a general agent for the Teche Bus Lines, who maintains their ticket office, handles their freight and express; keeps up with their schedules; when he negligently hurts someone by his official actions while performing some work for the Bus Company in securing a parking space, be held not to be the agent of the company but simply acting as the part of a volunteer?
This question has been passed on so many times by our court and is so well grounded in the general laws that it wholly requires no citations of accounts, however, we respectfully refer to the following citations:
New Orleans, Jackson Great Northern Ry. v. Bailey, 40 Miss. 395; G. S.I. Ry. case, 139 Miss. 497, 104 So. 180; Solberg v. Schlosser, 30 L.R.A. (N.S.) 1111.
If the Teche Lines, Inc., can escape liability for an act of their agent in this kind of a case, then it would be very easy in a case of this kind and character for the agent to claim that he was acting in his capacity as a citizen and not as general agent of the company.
Vicksburg v. Harralson, 136 Miss. 872, 101 So. 713.
Where the bus company put the sign up under authority of the city and created this nuisance, yet the bus company would be liable.
13 R.C.L., Highways, par. 262.
Private corporations or individuals who, either with or without the consent of the municipality, place or maintain obstructions in a street or highway which render it unsafe for public travel, are liable for any injuries resulting directly therefrom.
29 C.J., par. 442; 82 A.L.R. Ann., page 404; 20 L.R.A. (N.S.), page 761; Stern v. International Railroad Co., 2 A.L.R. Ann.
Our courts on many occasions have held the city agents for a railroad company, the man who meets and comes in contact with the public, as being such an agent so as to render the company liable for his actions of omission or commission.
51 C.J., Railroads, page 1082, par. 1116.
Neither at common law nor under statute is it any defense that the railroad's servants or agents, in causing the obstruction, acted contrary to the rules or instructions of the company, provided they were acting within the scope of their employment.
Com. v. New York, etc., Ry., 112 Mass. 412; State v. Louisville Ry., 91 Tenn. 445, 19 S.W. 229.
Everyone is bound by the act of his agent in and about his business, even though such agent exceeds his authority.
39 C.J., Master Servant, pars. 1469, 1472, 1477 and 1478; Barmore v. Vicksburg Railroad Co., 85 Miss. 426, 38 So. 210; 70 L.R.A. 627; 3 Ann. Cas. 594.
Parker Shivers, of Poplarville, and Porteous, Johnson Humphrey, of New Orleans, La., for appellee.
Before this defendant could be responsible for the act of any agent in placing the bus stop sign in the said street of Poplarville, it would become responsible for the acts of its agent only upon the ground that he was in some way either actually authorized to place this sign in the street, and we say this because of the fact that there can be no question in this case of implied authority to this agent. We say this for the reason that conceding (yet not admitting) that E.H. Hyde put the bus stop sign in the center of the street, it was only one act on his part without any proof whatever of the appellee herein, the Teche Lines, Inc., ever having any notice or knowledge of the fact that he had any connection with the placing or controlling the bus stop sign. There is no pretense made of any ratification of this act if we concede that such act occurred, so that before the appellant can recover of the appellee herein it would necessarily have to prove express authority from the bus company to E.H. Hyde to have any dealings with this bus stop sign.
The responsibility of a principal for the acts of his agents rests in all cases upon the ground that he has in some way either actually or apparently authorized or received the benefit thereof.
21 R.C.L., page 904, sec. 81.
The court held here in effect, by the sustaining of the appellee's motion for a peremptory instruction, that the plaintiff had failed to prove that E.H. Hyde was the general agent because there was no evidence of such fact. He was proven to be a special agent, ticket agent. That the town authorities had a right to and did fix the parking localities, and the parking signs. That irrespective of this question altogether, plaintiff's husband knew where the sign was; had known for a great many weeks, and neither charged nor proved that he exercised any care whatever towards seeing the sign. That the streets were lighted both by street lights and by filling station lights, and the court was correct in its holding, and in granting the peremptory instruction.
The proven facts disclosed by this record support and justify the lower court in its ruling, and in its granting of the peremptory instruction in this case.
Argued orally by J.M. Morse and Grayson B. Keaton, for appellant, and by H.H. Parker, for appellee.
Main street, in the town of Poplarville, is paved with a material which requires constant use, else the material will deteriorate. For this reason the town authorities manage that the parking spaces for automobiles and trucks shall be shifted every few months from the curb to the center of the street, and back to the curb again, and so on. During 1934, the town authorities determined by resolution to require the marshal to set apart an exclusive parking place or places for passenger busses, and some time thereafter, appellee, which operates a line of busses through said town, sent to its ticket agent in said town, and for the use of the town in the designation of parking places for the bus lines entering the town, a bus stop sign, which was a standard about four feet high affixed to a movable base and at the top of which was a sign containing the words, "Bus Stop."
When this sign was first delivered to the town, it was placed next to the curb and in a position where it was entirely harmless. When thereafter the parking space for cars, trucks, and busses was moved to the center of the street, in accordance with the practice first above mentioned, the bus stop sign was also moved to the center of the street. The declaration avers and we will accept the proof as sufficient to escape a peremptory instruction on that particular ground, that the ticket agent of appellee actually moved the stop sign to a position in the center of the street and to the place which had been designated by the town authorities as that for the accommodation of passenger busses. A month or so after the stop sign had been moved to the center of the street, a school truck, in which appellant was a passenger, collided with this stop sign and appellant was injured.
The proof shows that the ticket agent of appellee, who moved the bus stop sign from the curb to the center of the street, was also the agent of appellee for what we might call an express business, that is, for the purpose of receiving from the busses and also for transportation thereon, small articles of merchandise suitable for carriage on busses, generally in emergency cases, and that he would telephone for reports when busses were late. Other than as above mentioned, it is not shown that the ticket agent had any other duties to perform, and it is shown by the direct evidence of a general officer of appellee corporation that the ticket agent aforesaid was not a general agent of the corporation. We shall assume, but we do not so decide, that the bus stop sign in the center of the street was such an obstruction as to impose liability upon a person or authority who placed it there.
A review of our cases will disclose that this court has endeavoured to uphold the doctrine of respondeat superior in its full integrity, but at the same time has been cautious that the rule be not extended beyond its reasonable and legitimate bounds. The rule is, of course, that the principal or master shall respond in damages for the tortious acts of his agent or servant when, but when only, the tort has been committed in the furtherance of the business of the master and within the scope of the employment of the agent or servant. Not everything done by an agent or servant in the furtherance of his master's business is within the scope of the employment; wherefore, it is laid down that in order to fulfill the latter requirement the act complained of must have been committed in the course of the appointed duties of the tort-feasor, or was of the same general nature as those so authorized, or was incidental to the authorized conduct. Loper v. Yazoo M.V.R. Co., 166 Miss. 79, 145 So. 743.
There is an entire absence of any substantial evidence in this case that the agent here was authorized by his principal to enter upon the streets of the town and to take charge of the parking arrangements of the town or of any part thereof; nor was such conduct of the same general nature as the appointed duties of ticket and express agent. Nor can it reasonably be said to be incidental to the general nature of the appointed duties. 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.
We believe it would be to go beyond the bounds of proper caution and safety to say that a motor transportation company which has employed a ticket and express agent in a town, and which has conferred no general agency upon that person, should be held to an anticipation that this agent would so far transcend his appointed duties as to engage upon and assume the functions which belong only to the duly constituted street authorities of the town, as was the case here. In doing what the ticket agent did here, he not only went beyond his own duties, but actually usurped and entered within the duties and authority which solely belonged to the proper public officers, and beyond that which belonged to any private person, be he principal or agent. If it may be said that the principal should be held to an anticipation of this conduct on the part of its ticket and express agent, then nearly every conceivable possibility having any relation to the business of the principal would be brought within the rule of respondeat superior, and this is not the law. Compare Davis v. Price, 133 Miss. 236, 97 So. 557.
Affirmed.