Davis v. Price

97 So. 557 | Miss. | 1923

Smith, C. J.,

delivered the opinion of the court.

This is an appeal from a judgment awarding the ap-pellee damages, because of an injury sustained by him by being struck by an automobile truck Avhich was being driven by one of the appellant’s employees.

The error assigned is tlxe refusal of the court below to direct the jury to return a verdict in favor of the appellant. The appellant owns and operates an ice cream factory at which, according to the record, he employed, at the time the appellee was injured: Crane, whose duty was to malte the cream and pack it ready for delivery; Ness, whose duty it was to superintend the delivery of the cream; and two truck drivers, Avhose duties were to drive two trucks owned by the appellant, and by which the cream was delivered either direct to purchasers or to the railway station for shipment/ The appellant had arranged with a drayman by the name of Crockett to deliver the cream whenever his own trucks were unavailable for that purpose, which fact ivas known both to Ness and to Crane,- and on several occasions Crane had called on Crockett to -make such deliveries. On one or more occasions Crane had driven one of the appellant’s trucks himself, but was directed by the appellant to abstain from so doing and to remain at the factory, where his duties required him to be. On the occasion in question a freezer of cream was due to be delivered at the railroad station for shipment to a customer. Ness was not at the factory, and neither of the appellant’s trucks were available. Crane assumed to attend to the delivery of the cream, and without calling on Crockett to make the delivery borrowed a defective truck from a neighbor for that purpose, loaded the cream on it, and, as its owner was unwilling for the truck to be driven by the appellant’s regular driver, drove it himself to the station, and on the way, because of the defect in the truck, struck and injured the appellee. The evidence is conflicting as to whether or not Crane knew of the defect in the truck.

Though Crane was acting in the furtherance of the appellant’s business in delivering the cream, it is beyond doubt that in so doing he was, not only acting beyond the scope of the duty he was employed by the appellant to discharge, but also he was disobeying the appellant’s express command, and the rule is that — “A master clearly cannot- be held responsible for a tort committed in furtherance of his business, unless it is shown to' have also been committed in the course of the appointed duties of the tort-feasor.” 6 Labatt’s Master & Servant (2d Ed.), p. 6704.

But it is said by counsel for the appellant that Crane delivered the cream himself because of an emergency which might be expected to occur more or less frequently, because of which he might be regarded as having been invested with an implied authority to deal therewith as the interest of the appellant might require. We are not called upon to determine whether there is such an emergency rule, and, if so, what it is, for the reason that no emergency here existed which necessitated the delivery of the cream by means other than that provided by the appellant, which were either by one of his own trucks or by Crockett, the drayman, with whom he had arranged for the delivery of his cream when neither of his trucks were available, which arrangement with Crockett was known to Crane and was acted on by him on former occasions.

Reversed, and judgment here for the appellant.

Reversed.