Southern Ry. Co. v. Garrett

101 So. 348 | Miss. | 1924

Sykes, P. J.,

delivered the opinion of the court.

The appellee, Mrs. Garrett, sued the appellant railway company for damages. The alleged cause of action, as laid- in the declaration, is as follows:

“That on the 7th day of January, 1923, plaintiff came to the depot of said defendant in the town of Iuka, Miss., where the general public is invited by said defendant to transact business and to meet and accompany friends g'oing out on defendant’s trains, to assist her father in boarding said defendant company’s cars; plaintiff says that as soon as she and her husband, J. E. Garrett, had assisted plaintiff’s father on said cars, plaintiff, in company with her husband, J. E. Garrett, started walking up and on the walkway provided by said defendant company, when said train began to leave the station, but while crossing the main street in the town of luka, Miss., without any warning to plaintiff, the baggage master, the employee of said defendant company, then and there in broad daylight at high noon wilfully, grossly, and maliciously exposed his private parts in the presence of plaintiff, and, before plaintiff could move or in any manner get out of the way, urinated upon the clothing- and person of plaintiff, to the great humiliation, anguish, miental pain, mortification, and nervous strain, to the great damage of plaintiff. Wherefore plaintiff brings this suit and demands judgment against the defendant in the sum of twenty-five thousand dollars.”

A demurrer was overruled to the declaration, whereupon the defendant pleaded the general issue, and gave notice thereunder that the alleged act of the^ baggage master was not within the scope of his employment and not in furtherance of the master’s business, nor in performance of duties assigned to him when he committed the acts alleged against him in the declaration. We will assume that the testimony of plaintiff was, in substance, in "accord with the allegation of the declaration.

Among other things the baggage master who testified as a witness for the defendant denied that he was guilty of this very reprehensible conduct. At the conclusion of all the testimony the defendant asked for and was refused a peremptory instruction. There was a verdict and judgment thereupon in favor of the plaintiff in the lower court for one thousand and fortjr dollars from which judgment this appeal is here prosecuted.

The peremptory instruction requested by the defendant should have been given. Assuming that the baggage master either negligently, willfully, or recklessly committed the act charged, yet it was in its very nature purely a personal- act upon his part, not in any way connected with the business, of the master, and done entirely outside of and disconnected with the master’s business. The rule of liability of the master for the act of. his, servant is thus laid down in the opinion of this court in the case of I. C. R. R. Co. v. Green, 130 Miss. 622, 94 So. 793.

“The rule is well settled in this state that the master is not liable for the acts of the servant when done outside of the scope of his employment and not in furtherance of the master’s business, ’ unless such act be directed’to be done by the master or ratified by him,.”

The judgment of the lower court is reversed, and judgment will be entered here in favor of appellant.

Reversed, and judgment for appellant.