American Ry. Exp. Co. v. Wright

91 So. 342 | Miss. | 1922

Sykes, J.,

delivered the opinion of the court.

The appellee sued the appellant express company for actual and punitory damages growing out of the following state of facts as testified to by appellee (plaintiff) : On or about the 12th day of May, 1920, the appellee wished to send two packages by express over the line of the appellant company. She went to the office of this company in Shaw, Miss., and there found in charge of the office the wife of the agent of the express company, Avho was also an employee of the company. When she tendered the packages for shipment to this employee, she Avas told that it might be necessary for them to be rewrapped, and she Avould prefer to Avait until her husband came in before accepting them. The appellee then asked her if* she might leave her fur and umbrella in the office for a feAV minutes Avhile she went to the post office, and Avas told that she could. She then left the two packages she desired shipped, her fur, and umbrella upon a counter in the office and went out. As she Avas leaving the office she looked back either through the door or Avindow and saAV this employee pick up her fur. In a feAV .minutes she returned to the office and found that the agent had returned. Whereupon she was issued a receipt for the two packages she wished to send by express. She inquired for her fur and umbrella, and Avas told by the woman employee that she did not leave her fur, but Avas given her umbrella. She then left the office and came back tAvice more Avithin a short time, making inquiry for the fur on each of these trips. Upon the last trip she stated that when she asked for the fur the lady employee of the express company abused and mistreated her. She testified that the value of the fur ivas four hundred and fifty dollars.

Without setting forth in detail the testimony introduced on behalf of the appellant (defendant in the lower court), it is sufficient to say that there was a material conflict in the testimony as to whether or not the fur was left in the office of the appellant company and as to whether or not this employee abused and mistreated the appellee (plaintiff). The ease Avas submitted to the jury, and a verdict for nine hundred dollars Avas returned in favor of the plaintiff, upon AAdfich verdict a judgment in accordance thereAvith Avas entered by the court, and from Avhicb judgment this appeal is here prosecuted.

At the conclusion of the introduction of the testimony for the plaintiff in the court beloAV, the defendant made a motion to exclude the testimony, and for a peremptory instruction. At the conclusion of all the testimony for both sides a peremptory instruction Avas asked and refused for the defendant.

There Avas also introduced by the defendant a rule of the defendant company under AAdiicli rule agents and employees are forbidden to receive for safe-keeping any matter AAdiich has no relation to the business of the company, or to transact in-the company's name any business that.does not pertain to the express and forwarding business. It was shoAvn that a copy of this rule is in the hands of all of the agents of the defendant company.

While there are several assignments of error, it is only necessary for us to deal with the question of Avhether or not the defendant in the loAver court Avas entitled to a peremptory instruction.

Under section 195 of the Constitution, an express company in this state is made a common carrier in its respective line of business, and subject to liability as such. A very good definition of an express company is:

“A firm or corporation (usually a corporation) engaged in the business of transporting parcels or other movable property, in the capacity of common carriers, and especially undertaking the safe carriage and speedy delivery of small but valuable packages of goods and money.”

See Alsop v. Southern Exp. Co., 104 N. S. 278, 10 S. E. 297, 6 L. R. A. 271.

It is a well-known fact that practically every town within the United States has within it the office of some express company for the transmission of packages. The business of an express company is well known and understood throughout the entire United States. It is well known and understood that its business is the transmission and delivery of packages, for which it receives a compensation. It is in no sense of the word engaged in the business of a warehouseman, or bailee for hire. Though it is possible in some instances, where packages intended for transmission are temporarily left in the office before the contract of transmission is consummated, that as to them the relation of bailor and bailee may arise. In the case at bar the plaintiff went to the office of the express company to send two express packages, and as a matter of fact these packages were finally accepted for transmission by the company. She did not go there, however, to send either her umbrella or fur by express; she merely took these articles with her. For her own convenience, before she had finished her business of sending the two packages by express, she asked and was granted permission by this employee to leave her fur and umbrella upon the counter in the office of the defendant company while she Avent elsewhere. Her business with the express company was to send the tAvo packages by express. Leaving her fur and umbrella in the office of the company Avas no part of her business transaction with the company. It was not within the real or apparent scope of this employee’s business to make the express company a gratuitous bailee of this fur and umbrella. The leaving of the fur and umbrella Avas a private. matter Avholly between the plaintiff and the employee of the express company in her individual capacity, and in no sense was sbe acting in this matter for tbe express company, but ber act was plainly outside of her line of duty as an employee of the company. 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 duty of the servant.” Richberger v. Express Co., 73 Miss. 170, 18 So. 922, 31 L. R. A. 390, 55 Am. St. Rep. 522.

In the language of this court in the case of Railway Co. v. McAfee, 71 Miss. 70, 14 So. 260:

“The whole thing was an unauthorized arrangement to suit the views of the participants, and not to serve the company, and it is not responsible for Avhat happened by design or accident.”

See, also, Railroad Co. v. Latham, 72 Miss. 34, 16 So. 757; Express Co. v. Fitzner, 59 Miss. 581, 42 Am. Rep. 379.

Neither is the express company liable for damages for any abusive or insulting conduct o.f this lady employee to the appellee. At the time this altercation is alleged to have taken place the appellee was not in the office of the company to transact business with the company. Her business with the company had been completed on her second visit to this office. Her last trip to the office was made solely for the purpose of transacting her private business, namely, attempting to get this fur. The altercation is therefore not so connected with her business with the company as to become a part of one transaction, therefore a part of the res gestae, as Avere the cases of Richberg er v. Express Co., supra, and Railroad Co. v. May, 104 Miss. 422, 61 So. 449, 44 L. R. A. (N. S.) 1138.

In this case the express company is neither liable for the value of the fur nor for damages because of the alleged conduct of its employee toAvard the plaintiff. The peremptory instruction requested by the plaintiff should have been given. The judgment of the lower court is reversed, and judgment will be entered here for the appellant.

Reversed, and judgment here for appellant.

Reversed.