121 So. 141 | Miss. | 1929
The facts as shown by the evidence for the appellant were substantially as follows: The appellant was a student at Mississippi College, and with his wife resided at Clinton, Mississippi, while his friend and neighbor, Dyer Runnels, was employed by the appellee as an automobile salesman. The appellant had placed an order with a Ford dealer for a Ford automobile, but the time when this automobile could be delivered was uncertain. Runnels, as the agent and salesman of the appellee, undertook to interest the appellant in the purchase of a Whippet automobile; but the appellant informed him that he preferred a Ford and had already placed an order to be delivered as soon as the new Fords were on the market. Finally, however, Runnels induced the appellant to accompany him to the office and show rooms of the appellee, where he was shown what Runnels represented to be the corresponding parts of the Whippet and Ford automobiles. By comparison, he attempted to convince the appellant that the Whippet parts were larger and superior to the Ford parts. The appellant testified that he informed Runnels that he knew nothing about the merits of the different parts, and that Runnels replied, "I could not afford to lie to you knowing you as I do, and if you catch me in any misrepresentation, we will give you a new Whippet automobile." Appellant further testified that, after inspecting these alleged parts, he practically decided to purchase a Whippet; that he then went into the office of the manager of the appellee company and discussed the merits of the automobile for some time with him, and then closed the deal for the purchase thereof, paying cash therefor, and the automobile was delivered.
On the day after the appellant purchased this automobile, he was informed by the Ford dealer that the Ford for which he had placed an order was ready for delivery; *456 and he also received information which led him to believe that Runnels had misrepresented the automobile when he showed him the alleged parts. Conceiving that he was obligated to take the Ford, he approached Runnels with a view of procuring a rescission of the sale of the Whippet. Runnels informed him that he had sold the automobile and had nothing further to do with it, and that he would have to take that matter up with the manager of the company, which the appellant said he would do. Two days later the appellant interviewed the manager in the office of the appellee, and informed him that he was obligated to purchase the Ford and requested that appellee rescind the trade. As a further inducement to the rescission of the trade, he informed the manager, in the presence of Runnels, that his salesman, Runnels, had misrepresented the parts of the two automobiles. Runnels denied the misrepresentation. The manager informed the appellant that the automobile would then necessarily be classed as secondhand, and that the company could not rescind the trade except at a discount of twenty per cent of the purchase price. Thereupon the appellant told the manager that he would like to consider the matter until the following day, and left the manager's office. As he was on his way out of the building and had reached a point near the front door of the building, he met Runnels and there engaged in conversation with him with reference to the automobile. The appellant testified that he said to Runnels that he wished he had never seen a Whippet, and Runnels replied, "Why Wells, you are getting the best car on the market for the price." The appellant then charged Runnels with having misrepresented the parts of these automobiles, and Runnels replied, "Don't call me a liar." The appellant persisted in his claims of misrepresentations, and Runnels warned him three times not to call him a liar, and then picked up the alleged connecting rod of the Ford and struck appellant one *457 blow on the head, inflicting a cut or wound one and one-half or two inches long.
The evidence shows that Runnels was only a salesman, and that the sale of the automobile had been negotiated by him, but finally closed by appellee's manager after a lengthy conference between this manager and the appellant. The sale had been consummated, the purchase price paid, and the automobile delivered. The proof shows that when the appellant approached Runnels to inquire about the possible rescission of the sale, he was informed by Runnels that he was only authorized to sell automobiles and that he would have to take the matter of cancellation up with Mr. Fyke, the manager. Acting upon this information, he, two days later, went to the office of the appellee and had an interview with the manager in reference to the rescission of the sale and received from him the only terms upon which the rescission of the sale would be considered. Appellant then requested the privilege of considering these terms for one day before finally deciding what action he would take. Having concluded his business with the appellee company, he was leaving the building, when he suddenly met Runnels and engaged him in conversation in which he accused Runnels of misrepresentations made when he was attempting to sell him the automobile.
At that time, appellant had no further business with the appellee, and the conversation which ensued was a private matter between him and his former friend and neighbor; and Runnels' resentment against the charge of unfairness and misrepresentation, which finally resulted in the blow being struck, was a matter entirely personal to himself, and in assaulting the appellant Runnels was acting wholly without the scope of his authority and employment, and consequently the appellee was not liable for this unauthorized act of its employee unless such act was ratified by its subsequent conduct. *458 American Ry. Express Co. v. Wright,
The appellant contends, however, that if it should be held that the act of this agent was not within the real or apparent scope of his authority, still the appellee is liable for the reason that it ratified the act by retaining this salesman in its employ; and, in support of this contention, he relies upon the case of Pullman Co. v. Alexander,
It follows from the views herein expressed that no error was committed in granting the appellee a peremptory instruction, and therefore the judgment of the court below will be affirmed.
Affirmed.