White's Lumber & Supply Co. v. Collins, 191 So. 105

659 counterbalancing that other and show testee could permitted wrongs irregularities in behalf had been the contestant. particular therefore, that whether The result is, presented by the contestant issue or issues are duty the Executive Committee to it is contestee, upon and its or refusal then them, action, act, act scope inquiry either the comes within the which may peti- present, by proper contestee contestant or the special judicial, tri- tion and answer before thereto, provisions out under the bunal called cited statute. Affirmed. Supply Co. et al v. Collins. & Lumber

White’s 2, (In 1939.) Banc. Oct. So. 105. No.

[191 33546.] McGowen, dissenting part. JJ., McGehee appellant, for & White’s Cameron, Meridian, Gilbert Supply Lumber & Co.

664 Gipson,

J. V. of Meridian, Green, Green & Jackson, appellant, Temple. for Jackson, Fred D. Gipson, appel- for V. Green & Jackson Green, J. Temple, suggestion of error. Fred D. lant, Strange, Riddell & Williamson, E. Riddell, T. R. appellee. Holmes, all of for Meridan, M.

669 Argued orally by appellant, Forrest B. Jackson, for appel- Nate A. Williamson and Riddell, S. J. for lee.

Per Curiam Three members the Court are of opinion that there is no error far as reversible so con- appellant, Temple, cerns him wherefore as judgment appellant corpora- will be affirmed. As to the opinion two members of the tion, are of the Court peremptory was entitled to a while three instruction, including peremp- voting members, one of those for the tory judg- have instruction, concluded that the entire opinion, ment should be reversed, their because, against great weight reasonably verdict is be- lievable evidence. The result is that there are four votes appellant corporation, to reverse as the to and must be so ordered. Temple;

Affirmed as to reversed and as to remanded Supply Company. the & White’s Lumber opinion. Griffith, J., delivered an ’ Appellant corporation supplies, is a dealer in builders appellee and is a contractor in who had become arrears corporation. Appellant’s in his account with the resident manager, having failed to obtain a in settlement, called general manager, according appellee’s the and, to ver- Sunday morning, these sion, two on 13, June went 1937, together appellee having to the home him of and induced get pro- to in their automobile, drove him, over his country, about mile test, into there demanded sign that he a deed of trust to cover the as- debt and so, him when he do saulted refused to 672 part peremp- requested corporation its

Appellant on assigns on error, as tory thereof charge, refusal employer alleged held cannot ground that any prohibits work Code 1930, 1131, Sec. liable because necessity Sunday except or employment works of on or charity managers consequence the that like; or the Sunday to employed a debt or to collect not be could security; in further conse- negotiate collection its respect point managers, law and in quence employes Sunday, this were not mentioned, the matter liability upon nothing which there was therefore and that respondeat superior corporation by way against rest. could superior respondeat basis in has its

The doctrine right supervise employer has that the the fact employe performance in all work his of the direct right with it the correlative carries this details, its obligation shall be committed it that no torts to see to performance employe in the course appointed employe was which the of work character responsi- p. in view of this And L., 18 C. 783. do. B. employer right bility, to fix the within has the hours performed, and he will not be lia- to be the work is which except during the fixed his servant the conduct of ble for period fringe during additional time, such an unreasonably disconnected from authorized is not period. Gulfport Agency, v. Sec. Primos 233;

1 Best. Cleaning Laundry Co., 770, & 157 Miss. So. 507. privilege employer lawful of an within the But it is any employe subject to call at all hours, make his employe supervisory powers may give an of a or he continuing property constantly over nature or over employer’s department business, and the fact employer has elected not to retain the or means superintendence practical power, as of over the matter, performance the servant of the work so entrusted, employer’s rule to the ultimate alter the as lia- does not bility. and illustrations the comment under See Section Agency. 233 in 1 Best. already in this ease,

As the tort was committed stated, general manager if of the em- committed at all, ployer corporation conjunction with the local in direct manager. corporation any long So has considerable as property any long so as has which is to and business natural preserved kept going, person and some must duty continuously supervisory controlling be on in a position respect all to the and at times even business throughout Sundays. position This is the which the general manager manager occupy. and the local Their subject duties are such them as to make to call, and even day night, if it be at their own at all instance, times, through every twenty-four day hours of seven week. They superintendents are the constant all the work, every eventuality, superintendents and of their and are the perhaps during work,

own the actual ses- —save sions of the board of directors. managers

It follows therefore that what the do in the employer going furtherance business as a supervision employer, is concern under the manager for tort therein committed or man- agers employer though even liable, done on Sunday. admissibly It is not to be said that because the prohibits ordinary employment Sunday, statute manager general manager employe or cannot be an day. expressly excepts The statute works of neces- emergencies. sity, obviously which include It is a matter necessity, already pointed manager out, that the or general manager always subject duty shall be to the upon decision action, his own call, even on Sun- day; and while the collection or settlement of a debt is necessity emergency, no work of save in rare instances of which the case here was not one, nevertheless, and for relationship employer the reason stated, and em- ploye corporation could and did exist between the managers Sunday; on this question, and without collection or settlement of a corporation debt due the

n 674 their employment

within of which the character work embraced. en

The the the law managers by fact that violated being the gaging in a work statute for time prohibited present does not relieve as there were master, the so long oc the two that then there (1) elements servant and cupied the of the conduct (2) status an employe, within of the duties scope appointed of the servant. 1 14a 1489; Rest. sec. 39 sec. Agency, 231; 1294, C. J., p. C. J., p. sec. 2832. The 770, employer prohibited is law to time an employ person any to commit at assault if in the furtherance of the battery; yet business the master as an performance incident emloyed duties of the character which he or kind battery, assault and perform, servant commits an liable. employer Peugh, is Wise Miss. v. 140 479,106 So. L. N. 81; 569, Gill v. Dantzler Lbr. 153 Co., Miss. 559, 121 It So. 153. would that a appear, therefore, sufficient test of is whether liability the tort was under committed the actual or potential not supervision master, whether the employer could have legally authorized to be either as to time or done, manner.

But if it thought be the relation of master servant agent or principal must be a legal valid rela- tion very at the time of the commission of the tort, there can be no such on relationship' Sunday except as confined to works of necessity or emergency, same result this case by reached approaching the problem from the viewpoint participation in the tort by way procurement incitement. Undoubtedly a natural per- son is him responsible as much for torts committed on Sunday as on other day; and in- undoubtedly if, stead the tort committing himself, he employ another to do he Sunday it on be would liable, basis of but contract, because he would in- procurer, criminis. citer, particeps — The powers general of a manager of a corporation, insofar as persons concerns third without notice

675 going carrying contrary, on as with the are coextensive company. Allen Gravel concern of all the business R. etc., Shore, 244. Lake 809, 129 Miss. 93 So. Nix, Co. v. Ed. L. 261, 37 114, Co. 147 U. S. S. Ct. Prentice, 101, v. powers, stated, his so had 103. In view of broad 97, general manager Sunday employed person go corporation and had embraced collect for the a debt engaged person engagement in to the so the the direction battery if deemed to commit on the debtor an assault and corporation necessary accomplish the collection, to any validity virtue of such be not liable, would pro- corporation been but because the had contract, particeps crim- tort, curer or the inciter of, to, —was agent may properly appoint an therein. One inis illegal if criminal but the one act, commit a or otherwise per- perform the act the act directed, directed to does may responsible civilly directing if him a tort son Agency, Rest. sec. a. And 19, committed. I Comment stronger liability when the for the there would be reason, managers go instead themselves out and commit the tort, Sunday. though inciting another even on it, to do painstaking any square

A has to find case search failed may ly point: following be of some interest: in but Thompson, App. (2d) (2d) v. 30 Cal. 675, Sullivan 87 P. Kelley, App. (2d) 14 N. E. 622, Raduenz v. 295 Ill. 62; Ludwig 140, v. Floral 252 Pa. 97 A. 509; Co., Williams Garage v. Rambler 149 Wis. 206; Co., and Gerretson (N. S.), L. 136 N. W. 40 R. A. 457. have 528, 186, We obliged principle point resort to been to decide the analogy, which we have as a result of concluded corporation liability employer was not relieved Sunday corporation and that Statute, peremptory account requested not entitled to the instruction was by it. Ethridge, JJ., Smith, J.,

Anderson and O'. concur opinion. foregoing in the opinion. dissenting

McGeh.ee,J., delivered necessary majority I it find view dissent from holding corporate that the defendant not entitled was peremptory requested to the instruction in the be- court hence I low, concur the refusal of to affirm the Court judgment appealed against appel- from the said as corporation. lant charged, necessary

The declaration and was for the proof Temple, appellant, D. show, Fred acting scope authority employ- within the of his agent appellant corporation, ment, as in commit- ting alleged upon appellee. assault The record dis- complained place, closes that the conduct tortious of took Sunday, proof if at at a time all, when the is silent as perform day to whether had duties to on that appellant corporation for and on behalf of the its agent employment. under Owing virtue his the nature and character of the business in which the cor- poration engaged operating a retail lumber —that yard presumption is that he had no duties whatso- —the perform day employment ever to on that under his unless necessary preservation it had become to act for the of property employer, the emergency. of his or in case of an suspended The law agency day the relation of on that except under only the above circumstances stated. Not require, prohibited did his fail to duties but the statute rendering contemplated by the of the employ- services his except, ment necessary as heretofore stated, where for preservation property the manage- of the entrusted to his operation, emergency ment and within the or in arising case of an

meaning of the statute. No case has been called to our attention, nor an in- has vestigation any the by disclosed statement of rule the by any or employer textwriters has decision court where an employee

been except held liable for the tort of an scope where it has been committed ap- within the of the pointed express implied, either duties, or which the em- ployee lawfully perform. reports The our own could holding an em- other abound with decisions states employ- ployer damages caused the liable for torts each instance ees committed in violation of the but in law, employee at the of the time commission was, subject employer engaged the control tort, contemplated performance in and about the of duties necessary employment. his that course, Of is employer em- should authorize the criminal act of the ployee complained in order but it neces- is liable, employer sary expressly impliedly au- shall performance thorize the of the acts in connection with which the tort It that the is committed. is not contended employer expressly in the case at bar authorized the serv- alleged Temple ice have been undertaken Day, impliedly Sabbath nor can it that it au- be said was proof ever thorized, since the fails to show that he had any usage, theretofore performance under custom or undertaken, acquies- day of similar acts on that with the approval employer. cence or urged employer participated it is that the itself But, complained Gilbert, in the conduct here in that L. C. of, general manager yards of this and other lumber be- longing appellant aiding corporation, present, to the alleged abetting in tort in an effort to obtain a corporation Sunday. deed of trust for In the first place, only charges Temple however, declaration accompanied by question. on the in Gilbert occasion charged participated It is not the declaration that he alleged sought manner in the assault or that he in trust in any way to obtain execution of the deed day. question on that The declaration silent as to acquiesced protested against whether Gilbert in or alleged effort and conduct of in that behalf. To permit recovery theory appellant on the that the cor- poration participated through permit Gilbert would be to separate recovery theory on a and distinct than that place, on. In the sued second Gilbert could not ap- except ego corporation the real or within alter of the employ- parent scope appointed his under his duties of operation management of and was the which ment, permitted yards it law. Can within the time lumber acting within even real, be said that was within he employ- appointed apparent, scope of his of the duties undertaking general manager to ment if resent and as Sunday, and a homestead, obtain a of trust on deed sought joining if he had without the wife even therein, to do so without violence or duress? Since Gilbert vice-president corporate president, of- not the or other appellant occupied company, the relation ficial of the but employee- of an he could not be source instead, authority. corporation itself was necessar- his own The may any authority ily had, he have the source of that corporation only ego he was therefore alter engaged performance the duties when in about the .of apparent scope employment within the real or of his Day manager, so far as the is con- which, Sabbath positive expressly limited law to the cerned, were preservation property corporation, of the emergency. to other cases of

Having physical no control of services and activ- Day, ities of either Gilbert or on the Sabbath principal agent relation of not exist could except they day, subject to the extent that were call, duty preservation prop- or owed the act for erty emergency. or in case of other agency conception, idea

The fundamental its has something person may delega- lawful that a of a do, person power lawfully tion such to another of the thing. principal responsible, do that The is of course, agent manner for the unlawful in which the does an au- difficulty pre- thorized act. seems me that the But, apply sented in the case at bar when we undertake to this liability principle alleged agents were not performance engaged any duty which employer day employ- owed to their on that under their

679 in They performing act an authorized were not ment. they alleged contrary, are unlawful but on the manner, an complained while under- of tort committed the to have taking only unauthor- not which was render a service to employment, day which, but their under ized on that prohibited attempted service an heretofore stated, by law. manager to a of a fact that the relation

In view the of employ- necessarily corporation of a contract on based a cannot be true that there it is also and since ment, any Sunday employment or to work on of to do contract alleged any been to have of the nature transact business Temple rep- undertaken then how could Gilbert here, corporation on the occasion render the liable resent and superior?' respondeat question principle under the of in physical were in no manner Their conduct and activities corporation supervision subject control of the to or beyond assuredly, day. it would be that most And, manager employer contemplation a or that of Sunday employee con- undertake to obtain other would peaceably non- or otherwise. Such useless tract, being within venture cannot considered as sensical Certainly anybody’s employment. manager scope no suppose acting he to that would be so foolish as employer’s undertaking when furtherance of his business sign point at of a knife to a deed of to force a debtor trust they Sunday. It be remembered that should purpose collecting* go not for the account did They money. question. knew he didn’t have the The they appellee theory trying* that were to induce to come sign day trust the next in point. deed of is beside the signing His case is that he was assaulted for not it supposed it then and there. Can be officials di- corporation rectors of would have or con- authorized Sunday going get to these men out on sented deed of they thought signed, if even had trust such an un- object accomplished could have been heard without the necessity using say nothing force or violence, employed? it was

means heretofore while stated, As necessary corporation for the have authorized alleged liability, assault seem as condition of does me that must have under all of the authorities the assault employed to act occurred at a time when were these men corporation engaged for the about and while were scope required day within the duties on that them employment. of their employer

It seems to be well settled that the has right fix ta the hours which to be within the work is performed; that he is not liable for the conduct of except period during servant the fixed addi- and such unreasonably tional time as not from disconnected period “fringe fixed—known aas of time.” This recognized Agency, rule is in 1 Rest. section Primos 233; Gulfport Laundry Cleaning v. 128 Co., 770, & 157 Miss. Examples application So. 507. given of the of the rule are Agency, supra, in 1 Rest. sec. 233, as where a truck- man is forbidden to make deliveries after five o’clock and scope one made a few minutes later within the is deemed employment; of the where clerk is directed .likewise keeps open long to lock a store at six o’clock and he it enough thereafter to wait on the customers who enter just before that etc. time, the case at But, bar is no “fringe appreciable time of case.” An time had inter- closing yard’s opera- vened since the down of the lumber day tion opening on before, and the time for another alleged week’s business had arrived. Moreover, employer prohibited effort to serve the occurred at a time positive right law. There existed no control or of part appellant corporation control on the over the Temple time or Sunday. conduct of Gilbert and on that They perform corporation had no duties to for the on day. they that it Hence, would seem to follow were act- ing beyond scope authority employment of their they day when went out on that on the mission com- plained of. the authorities search of

It is that a careful conceded point; squarely in case that there is a failed to reveal has point by obliged a resort are to decide this that we plaintiff: analogy. being principle true, That imposed proof himon have met burden should subject Temple showing were that Gilbert law Sunday alleged employer that their the control of performance engaged they of the duties in the were also employment contemplated by required to be their performed day. complained on week had occurred

If the incident appellee day, the burden not have had then the would acting proving within were that Gilbert and scope employment. fact would have been their Such positions presumed, which because of character proof they respectively disclosed when the But, held. alleged Sunday, then the to have occurred on that was appellee prove upon cast burden was scope required acting of the duties within the were employment. day This was true under their them on that prevented the law of the state reason of the fact that day. undertaking There such service on that was their appellee attempt part meet on the to this burden. no ordinarily it not do to that It is true that would hold against corporation prove plaintiff the a suit a must a manager authority ques- the act on the occasion in to entirely presented is an different situation tion, but prohibits the it a criminal offense where law makes manager engage to in the service in connection for the presumed his tort committed. It that he with which is is engage in a service in violation of the law, would not authority employer anyone he has no from his that being requirement that true, This then the else so to do. prove manager plaintiff that the the was author- should Sunday corporation merely the is act on for ized to plaintiff application well rule settled that must prove every presumed. material fact which not is is It corporation presumed that an individual or has never agent day prohibited authorized an to render service on by authority presumed, nec- it law. If such not then is essarily proved, that it must since its existence follows be respondeat superior. is the sole basis of doctrine of fol- If the then it hereinbefore stated are correct, views peremptory requested by the instruction lows appellant granted. corporation should have been by opinion,

I am other also of the two of the shared judges, that the case should be reversed and remanded as Temple, individual for the defendant, reason weight against overwhelming the verdict is testimony. believable

McG-owen,J., in this concurs dissent as the White’s Supply Company. Lumber & Ethridge, sug- opinion J., delivered court on n

gestion of error. brought against J. M. suit Lumber & Collins White’s Supply Company manager Temple, D. Fred company Mississippi, at Meridian, also stockholder being alleged therein, the action for a tort been to have acting committed while for and on behalf trying company, said or secure collect an account owing claimed to decided here M. J. Collins. The case its merits on October 2, 1939, reported suggestion in 191 So. 105; of error been has Templé, filed on behalf of Fred D. but none on behalf of plaintiff, company. behalf or on of the lumber opinion In the former were facts with discussed particularly Temple, per reference to Fred D. curiam opinion merely stating judgment the result to him, against being equally him affirmed an court, divided judgment against while the company the lumber opinion reversed and It remanded. is, and was, affirming Judges that the evidence was sufficient to sus- liability Temple. tain sharp of Fred D. There was a testimony plaintiff tbe and conflict in the offered actually regard tbe in to what occurred defendant alleged day wrong claims. Collins, of tbe done to as be suggestion earnestly is In tbe of error it contended Temple, judgment and be as should also reversed between tbe that no distinction could be made sound proof in in tbe offered him, offered case as to and that regard company. to the lumber dispute tbe evi-

Questions of and of in fact, matters advantage jury, are for which tbe dence, tbe has appellate determining questions veracity in of and court giving tbe witnesses are seen beard while fact, since advantages testimony, possessed their with other not appellate tbe tbe court. when verdict of Furthermore, jury challenged being against weight tbe is as tbe of tbe bring judgment tbe trial court must to bear its evidence, power in tbe it has tbe same this Court matter, and as jury. judge to set aside tbe verdict of tbe trial also Tbe advantage seeing bearing tbe witnesses, has them of tbe testify, may observe demeanor, and knows .their something standing community their tbe where tbe cause action arises. joint liability in torts tbe course,

Of is several, may against a verdict rendered one of tbe tort feasors, against not so far as tbe law another, is concerned. Tbe Court here is reluctant to disturb tbe verdict tbe jury, approved by judge, ground tbe trial on tbe that it weight contrary especially of tbe evidence. That is true where more than one witness testifies on behalf of parties directly one of tbe who is not interested in the re- right sult of tbe case. This Court has not tbe to set aside contrary weight a verdict tbe of the evidence where testimony improbable there is not face, its and where testifying impeached tbe witnesses so have not been tbe manner known to tbe law, and reasonable men could depending upon arrive at different conclusions, their judgment capacity veracity tbe tbe witness, and bis willingness respond to tbe truth. We do crave

684

such, judgment jury power, of and defer to the and preponderance the trial of the evidence unless court, against passion, great is indicate verdict so as to prejudice corruption its rendition. or entered into testimony say, parties of all to J. The —that general Temple M. D. E. L. Collins, Gilbert, and Fred the lumber manager company was there —showed dispute controversy between M. Collins J. owing company lumber by about an to account claimed company. building Collins to the J. M. was a Collins supplies he contractor, and had obtained of materials for buildings & construction from Lumber White’s Supply Company. days prior alleged,

Several to the on misconduct, part Temple there had been a Gilbert, discussion by Temple pay- of this and efforts to secure its account, mortgage upon property ment, or a or deed trust owned, or claimed to be owned Collins, to secure debt. would Collins not admit the correctness of the according Temple, agreed account; but, he to se- had according agreed cure it; while he had not Collins, agreed secure the nor he account, had to the correctness thereof. Temple prepared had a note of trust deed for

signature of Collins and his the note dated wife, 7th, June describing and the deed of trust the debt as evidenced bearing having the note said date, the deed of trust itself signature space blank date, blank and blank acknowl- edgment space. Monday preceding The 7th was Sunday wrongs which claimed the suit were perpetrated upon by Temple Collins and Gilbert. On Wednesday preceding Sunday this there had also been Temple discussion signing between Collins about testimony deed of trust and note. Their differs toas permitted what occurred state that the this date. Collins was unpleasant, go discussion was but not to Temple into details; while denied that the discussion was unpleasant. appears testimony It from the of Collins property sign, in- that he declined to also that having cluded in the of trust which he did not own, deed already disposed There been fur- thereof. seems to have Saturday day upon preceding ther discussion on the alleged wrong which the on which date committed; Chancery went to the Collins and office regard property, Clerk to examine records to the ownership and it was then discovered thereof; Temple assignment that a transfer or had been made According Temple, requested Collins. to he to Collins eight Sunday morning, meet him at office at his o’clock to the matter with him and discuss who was the Gilbert, general manager Supply Company, of White’s Lumber & corporations; agreed other and also of and that he allied Sunday morning, reaching to do came so. Gilbert over past eight, ap- Meridian about half pear. but did not Collins agreed having Temple He denied to meet and past at the officeof the Gilbert former. About half ten having or eleven o’clock, Collins to the office, come Temple and went Gilbert to his several blocks residence, upon distant from the to office, see and came him him, conversing neigh- near his with Ben home, one, Harris, a hap- bor. There a difference in their versions of what pened. testimony

According Temple to the and Gilbert, they get might they invited Collins to in their car, driving point the matter; discuss to a about half a ’ place they highway, mile from Collins left the main place turned into a where there was a side entrance to but which road, seems not to have been or road highway' one of the witnesses described as a —what according Temple lane;” “lover’s to there, and Gil- they bert, discussed matter with Collins at some length. sign Collins refused to the note and deed of prepared as trust, stated above. He had secured from company building the lumber for materials which was being completed, and had contracted for another build- ing; he and when to refused secure the debt claimed to company, they proposed owing Mm to the lumber company the lumber his contracts for

that he transfer to appoint- buildings; constructing and made an the said attorney ment to meet them at officeof the for Collins company following morning, on the to for lumber assignments. testimony make the The of Gilbert and Temple indicated no force, use of threat of violence or merely way, effort in but to coerce Collins a confer- seeking adjust matter, and secure ence, execution of the of trust

deed mentioned. testimony part by The Collins, corroborated other Temple to the effect that and Gilbert witnesses, place up talking drove to a near his where home, he get neighbor, with a Ben asked him to Harris, and they their suggested wanted to talk with car, as that Harris him; comply. Collins he should not Collins up went his on to home, and Gilbert drove going in front of his home and called to him; on his get out him to in the car invited in order to discuss whereupon they which he matter, did; closed the rapidly away, protest, refusing door and drove over his get point away himlet him out, carried to a from highway passers-by; pro- the cure his and and there undertook to

signature to thé note and deed of trust, assault- ing using’threatening' language g’estures. him, part, relates

Mr. Collins occurrences, as follows: ‘‘ jury happening Q. Just tell the what there, Temple says, what was said?” Mr. “Well, ‘Mr. Gilbert got up morning way this and drove all the over here you from Jackson to talk to about this little matter,’ you says, he ‘It seems and me can’t settle it I and want you just talk him says, to with a little bit about it.’ I right, glad you, mighty glad. ‘All I will be to talk to be you glad are you, just I believe a fair to talk man, with just you suggestions, go whatever want to ask, ahead says, staying up; with it.’ I ‘I don’t feel like I am sick morning. just get this I been down to some medicine, get together, you but if we can’t I believe me and can.’ ‘ ’ says, get He was- Get here. I to in that door. It tried open. got n’t I come started around to I in and side. they to sit down. I sit down started.” Time they they “Q. Did start slow?” started sir: “No, get due north. I I fast, couldn’t, tried to out and Well, grabbed and this fellow Gilbert me down. me and shoved glass Then he held around the door. The down. they northeasterly mile And drove about a in a direction they on the old Marion left the road. Then road and went north about a hundred around in behind some feet, go bushes far as with an at could automobile parked. says, that time, and he I ‘Well, And God reckon, ”—you’ damn “(Interposing) Temple. said Who that?'” He “Mr. says, you surprised.’ you, I ‘Well, are reckon, God damn yes says, says, you I no.’ ‘Well, He ‘Just what do says, you, mean that?’ I ‘I am not at but I am at Mr. you says, your Gilbert.’ he And can leave ‘Well, wife, you your boy, you your you can leave can leave home, everything can leave in the world but Miller Collins.’ says, got morning.’ he have Miller ‘We this Collins says, going you you go- he and ing ‘We are tell to what are you ought not what do, to to and better but we do, do you going you morning going are to tell this what are to began says, do.’ He to talk to Mr. Gilbert. He ‘Mr. Gil- sign mortgage him I have asked bert, little on his place.’ says, sign says, He ‘He has refused it.’ I ‘Yes, put I and I refused to do it I have, because haven’t money contracting paid my in that. I for it with bonus give money, you going mortgage and I am not you says, going give mortgage it.’ He are ‘Yes, me a says, you it.’ I ‘Mr.'Gilbert, look like a fair man.’ says, thing only I ‘Let’s take this to law. That’s the fair way.’ says, go get lawyer ‘I will I me down, haven’t —I got go get just but I will one, down and one, and I would ’ say like to hear what twelve men and the law about this. you just something. jumped well Well, as hit him or He pulled opened his car, coat off, looked, out the door, says, me in the He . . ‘God damn the . face, law,’ says, gut ‘You haven’t twelve men in Lauderdale county against because all owe and as far us, us, lawyer you gut aas haven’t one concerned, worth a ’’ ’ getting paid by you get. damn not all can month, ‘‘ “ ?'” What did Mr. then He do turned around back of the seat, turned around on his fac- knees, ing me direct in back of seat. I was in the back steering seat of car. He was under the wheel. He facing turned from under He it, me, laid this same deed mortgage my lap, grabbed in trust over and he me says, in the and he come over with collar, and he knife, you sign tapping ‘Now it,’ and he started over the me head with that knife in his hand. this And man Gilbert ” says, you sign ‘Now it.’ you point he

“Did strike with the of the knife?” “No, sir.’’ catching you, you your say,

“What in addition to as lay you bosom here collar . . . heDid hands on place?” at other sir.” “Yes, lay you?” top

“Where did he hands on “On because I head, had slid far so down in the seat was only way get he could me.” what he do?” “Well, did “Tie hit me over the head with of his back with a hand, downward like blow, ’’ that.

Objection testimony court made, ruled that the striking go charges would have to out under the of the declaration. testimony

The of witnesses for Collins was to the ef- gut fect that when he moving the car and started off, ’ nearby, Ben who Harris, went to the door of Collins failing get response home to inform Mrs. Collins, but place his went on to knock, another where he was to take dinner with a friend. Mrs. Collins seems to have gut apprehensive, become in her car and started to fol- she low, but, as failed to testified, locate her husband, Temple and Gilbert. then She went for Mr. Harris,

689 joined whereupon they proceeded he in her, the direction parties They gone. in which the had where the found car had off until turned the Marion and followed it road, they got were near. Mr. that Harris testified he out Pryor, went and car of a who come had also Mr.. along, gun. if he to see he had a testified that saw Harris Temple brandishing Upon knife in Mr. front of Collins. according the testimony of arrival Mrs. Harris, Collins and Collins’ of Mrs. Collins himself, witnesses— got Temple Ben and and Gilbert into car their Harris — rapidly and drove toward town. parties up, Mr. Collins testified that when these came they Mr. “Let’s take said, Gilbert him to the office, they there,” can’t that come and in went the direction city, of the followed Mrs. Collins and that Harris; and they just sped before Collins’ Mrs. reached home Collins by them in her car and blocked the road in front they then home, let and Collins out car. These disputed by Temple, are statements Gilbert and who they stopped claim that drove in back, front of Mr. Col- they let out; lins’ and him house, denied that Mrs. Col- sped way. of lins in front them and blocked the threatening There also evidence Collins as to by Temple statements made Gilbert, which are denied appears It from Gilbert. evidence on that following Temple morning and Collins went to the office attorney Supply of for White’s Lumber and Com- pany, assignment and there executed an of the contract foregoing for the accounts two mentioned in statement; nothing and that there was said in the officein reference preceding day. to the matters Temple testified he that took Collins in his car to this they together; went office—that and that volun- Collins tarily signed assignments of the said contracts. sharp dispute There was between Collins on one Temple hand, and Gilbert other, as to whether or not the note and deed trust in were at car place to which testifying carried Collins; Collins they produced them

that the note deed of trust, laid they deny lap, sign, on his tried to force him to while having' Temple trust there states all, deed at possession Collins was the note and deed prior trust to that. Monday,

Mrs. Collins testified or at some timey shortly Sunday question, Temple her after the called telephone, on the her to have return asked Collins the note and of trust him. This deed to denies. anything He he that did not the testified know about complained by by matters or him; testified Collins, to Sunday about tort committed said until he was part September served with summons in the latter connection with this suit. appears Supply It that also Lumber the White and Company against a suit filed Collins about the time of process against the service of in the suit the com- lumber pany Temple. and pertinent

It is, of difficult all course, to state the testimony voluminous foregoing in a of this suit the but kind, represents gravamen testimony. the arguments When the cause came on for trial, and the night jury were the Circuit it was near fall. finished, The retired, judge notify directed the sheriff him to if jury during the night, a returned when verdict, later, the jury report,

the came into court, or asked to judge jury Circuit was recalled to the court room, the brought judge was they in and asked if had ar- jurors rived at a verdict. Several of the their shook Bidgood, according Mr. heads, one, to some of the judge, evidence, asked “Can verdict —” where- upon judge directed them to return to their room for further deliberation. company represented by

The lumber was a firm of lawyers, Temple having lawyer; another but all seems to- joint have been being conducted as a effort, suit joint suit. A representing member of the firm White’s Supply Company present Lumber was in the court & happened, state- the above when testified that this juror he that ment he recollected, was what request made no of the court at that time. present. representing Gipson, Temple, He

Mr. was not telephone jury deputy him if the asked a had reported, sheriff to oversight through No was not done. but this request judge but effect, that was made Circuit to customary testimony was shown his that it ready jury notify were to such cases to counsel when the attorneys partici- report; that he observed that one of the present. pating in the cause was agreed Bidgood, jury

According juror, had request the court to inform them if return could against against company, lumber not verdict Temple; and his recollection was that he asked Cir- judge cuit for further the court instructions, and directed them return to their rooms—that he could give them further words effect. instructions, Judge The ception made a that it his Circuit statement con- give that he in- of the law at the time could not jury after he structions retired —that was not re- quested anything to do in the matter. And he overruled a motion for a new trial. testimony juror, Bidgood,.

The was to the effect judge return, that after the them to soon as directed they cigarette, verdict, he re-wrote the return- smoked ing against testimony both the defendants in incompetent. cause. The juror jury A of this was member of the impeach testify verdict, cannot its own nor can he to that matters which show the verdict returned was not jury. pre- verdict of the the No reversible error can be upon judge anything the the dicated failure of to do at given jury ample the instructions the time; the were for guidance; judge given their the could not have additional instructions under the statutes of this without state, requested being parties to do so the or their attor- neys; and this was not done. study testimony, the in

We as disclosed think in the record, the and as contained statement, above ample verdict as evidence to sustain the to would show responsible Temple, who for own was, course, his acting whether himself or for Lumber for White’s acts, & Company. jury right Supply to The had a believe plaintiff. right testimony They for the also had they testimony accept, if believed it to on true, be entirely behalf jury It a case for the supposed defendants. conflicting proof. jury A settle, good composed intelligence, judg- to be men of sound attorneys participating fair character; ment and having practiced in suit are this veterans of the Bar, county many years, planning for wise in and skillful tongues possessing in trials and well trained the art persuasion. They may have assumed to been ac- jurors parties quainted with the to the suit, and to knowledge brought have had of all facts out. It is difficult believe on the facts that, of this record, the jury good question did not act in faith. The would de- pend largely upon standing of the witnesses in the community, say in the court and are unable we prejudice passion influencing there or bias, jury. suggestion It is also contended, of error, granted the court should have an instruction to the de- that if fendants, did believe the note and deed present place of trust were at the where the above-men- Sunday, they discussion tioned occurred on should have controlling found for the defendant; fact is not present; whether the note or deed of trust were but sought whether abused and to coerce or intimi- signing paper; date into Collins and whether he and were threatening Gilbert hostile in their attitude question him. The toward as to whether not -the note actually present of trust deed were would, of course, upon veracity have its effect of the witnesses; but the

693 tort could have on the whether committed, facts, been note deed of trust were there or not. suggestion

The is of error overruled.

Suggestion of error overruled. opinion, dissenting’ Sug- McGehee, J., delivered a gestion of Error. appear opinions, will the former this from cause

As against reversed remanded for trial a new as appellant, Supply Company, Lumber & White’s appellant Temple, was affirmed as Fred D. but only judges three which affirmance concurred. upon facts of The the case which the affirmance as to predicated is have not been judgment heretofore stated, my opinion they will not sustain the testimony affirmance for the reason that the on behalf of plaintiff appellee, wholly in the below, as court is contending unreasonable and unbelievable. In that a judgment, upon jury based the verdict of a on a contro issue of verted fact, should reversed and a new trial granted, my I feel that I should state reasons for so do ing. In the former dissent, from the affirmance as to appellant merely my Temple, position, I stated brief ly, [191 opinion, 110]: as follows So. ££Iam also judges, shared two of the other case should be reversed and as to the defendant, remanded individual Temple, against for the reason that the verdict overwhelming weight testimony.” of the believable taking position inherently

In that an incredible story by being is not made credible sworn to, and that it should not be allowed serve as foundation for amply supported I am verdict, the former decisions Court, this announced in the cases Teche Lines, v. Inc., Bounds, 182 Miss. 179 638, 747; So. Yazoo & M. v. V. R. Co. et al., Lamensdorf 180 Miss. 426, 50, So. 80; Davis, 178 So. Director General of Railroads v. Tem ple, 129 Miss. 916, 689; So. & Yazoo M. V. R. Co. Skaggs, 181

v. Miss. 150, 179So. 274, numerous other

694 emphasized approved view was cases. This case of Teche supra, it wherein Inc., Bounds, v. Lines, [182 : “Courts are 750] 638, said Miss. 179 So. contrary required human ex to to believe which they judicially perience which nature, or laws although may . . . there know to be incredible support tending- it.” evidence to kidnaped, Appellee’s story having- fantastic been experienced men, business abducted assaulted two important respon years held who have for several supply managers positions retail lumber and sible compel yards, and a drawn in an to him threats effort Sunday, sign homestead, knife to on on a trust, deed of then vested title known them to be to which was to present join therein, to his who was not wife, acknowledg when available take the no officer was to wholly my unbe ment, is to lievable, and mind so unreasonable and contrary weight overwhelming to testimony re the credible in the case that it should not ceive the sanction of court. It is obvious that a mere statement of such a contention carries its own refutation; is ridiculous and absurd re should argument. quire no appellant corporation against

The held a claim appellee approximately covering for an indebted- $1,800' alleged building to be it for lumber and other ness materials due building

furnished him as a contractor. The manager appellant corporation, Temple, as local security sought to obtain for account, which past long making due, before further A advances. deed prepared Monday of trust was and delivered to him on prior alleged to the abduction and assault. theOn fol- appellee lowing Saturday, appel- made it known to the Temple lant that he not execute the could deed of trust property for the that it reason embraced some that he no longer for the further owned, and reason that neither he give willing security nor his wife were home- recently conveyed stead which he had to her. There- descrip- upon, went to the courthouse check the Temple appellee tion, then that the discovered had assignment conveyance property made an of all his prevailed to his he wife. testified that then appellee agree following the day to meet him on the Sun- appellant corporation

morning at the officeof for regard a conference in indebtedness, the status of this general at a time when L. C. Gilbert Jackson, manager yards ap- of the several lumber owned pellant corporation, present. appellee could be The de- having agreed testimony nied the to but conference, the dispute early showed without that Gilbert left Jackson Sunday morning and the at reached office Meridian appointed at the about 8 o’clock and that he time, M.,A. appellant Temple nearly the and remained there three waiting appellee keep engage- hours for the to such an ment. The note and deed of trust still remained the possession appellee according testimony the to of Temple. They finally ap- drove out to the home of the pellee, him near found the house, and induced him to get they might in the with car them in order that discuss appellee’s the status of the indebtedness reach some and regard conclusion in future to advances. From the they evidently pur- house drove down the the road, for pose discussing pres- of the matter with him out of the hearing family, stopped ence and the car some appellee little from distance where the house, claims that the assault occurred. He then claims that while he appellant was on the seated rear seat the car, of Temple placed lap, the deed -of trust in his drew knife cut at him “an within or inch an inch half” sign of his face and commanded that he then and there it. you Picture if can of one these two business men, years experience managers several of retail lumber yards, suggesting Sunday morning, to the other on that yard at office having lumber at Meridian, after appellee keep engagement, waited for for hours his that the deed trust be out taken his home for the compelling intimidating purpose it, him execute necessarily they not he worth knew it would when paper for numerous reasons. it was written, on which agreeing appellee picture you at the if can also Then, alleged town that he come to assault would time of the assignment morning of a build- execute an the next ing corporation agreed appellant had which the contract going imagine him to the and then him, to finance for attorney morning with the oil the next office of a local appellant assignment Temple, waited for the where freely regard prepared, to the trans- he conversed assignment with- was executed, action before appellee being made to the at- mention out regard alleged torney anyone else in to the ma- or to day on the before. licious assault evidently jury not believe that itself did The appellee, for we this record assaulted find had hearing a motion for new trial that discloses on against appel- rendering the verdict both of the before open jury court to further lants the come into seek had appellant Temple’s at- at a time when the instructions, torney agreement deputy absent under an with a jury ready that he notified when bailiff was to be report, hearing the from which motion for a object appears jury new trial it that the of the in seek- ing further was to ascertain the instructions whether exonerating Temple or not could render a verdict ag’ainst corporation. finding appears the It and that a verdict to that effect further prepared been

had and would jury, if the have been returned could a have obtained right, instruction to its as favorable as rather to its appears power, jury In other it words, to do so. that the unwilling against appellant to render a verdict the was Temple jurors until after the were directed to return to being given their without further room, instructions. appears jury in this record that the either Thus did story appellee’s believe the as to the conduct of the jury appellant Temple, willing was or that the to render regard against corporation a verdict alone without Temple guilty complained whether had been tort theory corporation protected on the that the of, liability improperly insurance —an issue which had been injected appellee. into the case behalf In ei- ther were entitled to a new trial. event, defendants If I then should be mistaken in the view above stated, presented there is the further that the dam- consideration ages largely, altogether, punitive awarded were if not approximately' in and the verdict character, $3,000' probability highly in all would be excessive to the appellant Temple, employee appellant as salaried corporation, since it would doubtless amount to a com- plete any may confiscation of all assets that he own. always permissible It is the financial show worth of punitive damages a in defendant cases where are to be although sufficiently allowed, record discloses may against that the verdict not be excessive as a cor- poration yards, that owns several retail lumber still it permitted against should not to stand as the individ- proof ual defendant without some of its reasonableness punishment, light as a in the of his financial circumstan- especially jury in view the ces, fact that the would punishment not have a administered so if at severe, against appellant Temple, all, if it had known of its power returning exonerate him without likewise corporation. verdict in favor predicated by since the suit Moreover, the dec alleged appellee laration on an assault of the an in to then effort and there signing coerce him into complained deed of trust on the occasion of, and since the testimony appellee sought on behalf of to establish such appellants contention, were entitled to the refused ‘£ following instruction charges words The Court jury for the proof defendants that the burden of upon plaintiff this case is to show to the satisfaction jury by preponderance of the evidence that the note deed and of trust testified about was handed over to by Temple, the plaintiff,

the defendant, the Collins, Temple day then the said 13th of that June, 1937, and plaintiff to force the and there undertook to coerce and sign jury the from instrument and unless believe said preponderance and the that the note said evidence possession the in deed of trust then was and there Temple was unto the said to be and so delivered said Collins signed by there then him,

then and under their jury the will return a verdict for the defendants”. oath, by sought plaintiff’s This was case made the the to be testimony. jury the Unless believed that the note and deed of trust was then there, could believe that Temple placed plaintiff’s lap' it in and that he at struck him with “within a knife an or an inch inch and a half sign. of his face” in an effort him to make It was contention of the defendants in prepared was deed of trust

appellee’s possession day all the while from it was Monday, delivered

and to him on 5th, June day produced until the trial when he it in court. This presented theory instruction their which, case; and any possibility having kidnaped if true, excluded their plaintiff sign in abducted an to force effort him to it day on that the use of force and violence. In other plaintiff’s story words, unless he true, was not fairly entitled to recover, this instruction cor- rectly presented that issue. Except to the extent that Gilbert to went plaintiff Sunday, home of the on that and induced go him (where they down road with them could presence talk with him out of hearing his already wife who was known hostile to re- their quest security) persuade for the in an effort him following day adjust come on the matter, plaintiff’s story is manifest fabricated an effort to defeat claim appellant of $1,800'held corporation against him and on which claim suit was brought days prior filing four to the of this suit him. 179 So. 638, In 182 Miss. Inc., Bounds, v. Lines, Teche. in has demonstrated, it is shown that this Court 747, unwillingness accept years, increasing unrea- recent an testimony it was wherein sonable as a basis for a verdict, thing “If one in the administration said: there gen- upon the texts, of law which the the decisions, opinion agreement, eral are in it is of bench and bar inherently evidence which unbelievable or incredible is is in effect no evidence and is not sufficient to sustain authority overwhelming weight . verdict. . . the throughout country the is that believable or credible evi- civil is the dence in cases that which reconcilable with is probabilities possibilities of the and that bare are case, contrary prob- the sufficient. Where evidence is so weighed light when in knowl- abilities edge, the common experience, common sense that im- common accept partial, reasonable minds cannot it other than as clearly improbability, support an it will not a verdict.” Temple other witness claims to have seen assault

No appellee, or strike undertake to com- otherwise pel sign anyone him to of trust. Nor deed does claim writing to have such an seen instrument of at the scene alleged quarrel regarding of the his refusal to come to — security requested although town and execute the — appeared only others at the is scene; and he corroborated setting story complaint to the as out of which the testimony support seeking arose. Furthermore, inherently story, an essential features of incredible if testimony, there been such had itself would likewise be possessed incredible. No man sufficient common sense experience op- in business affairs to enable him yard pres- erate a retail lumber would undertake, superior ence of his to obtain officer, the execution of a Sunday, deed of trust on husband, a homestead belonging to wife, and in her absence; this too, by the use of threats and a knife. Nor would such su- perior approve officer or condone such nonsensical con- my opinion, judicially That fact, duct. we know. 700: may

Finally, this that the affirmance of be observed appellant re- reversal and and its case as to brings Corporation appellant about an mand as to corporation unique, The if not a situation. anomalous, Judges are three of the is awarded new trial because story appellee’s opinion to what as that the corpora- agent appellant Temple, done overwhelming contrary weight to the tion, Judg- and because another one of believable evidence, opinion corporation liable that the is not es is of ground; as to the whereas, a the case is affirmed different agent corporation is to on the same facts on which the notwithstanding controlling have that trial, a new opinion that no error was committed Court holds Again, against either of them on the former trial. judgment against appellant Temple and the sure- appeal and will have ties on his bond will become final, paid, to be appellant corporation before the mandate of this Court as to

can reach the lower court for try nothing trial, new and there will then be left to as corporate to the there defendant, since is no contribution alleged payment by between tort one ac- feasors, ap- crues to benefit of all. therefore it If, should pear upon judgment against a new trial that the the al- leged Temple paid, tort-feasor has been there could damages, judgment assessment no further no upon corporate could be rendered which the defendant upon company call could the insurance for reimburse- corporation appellant ment. In fact, will not have damaged being required pay judgment. been It already paid appellant will have been litigant sought with his the result that the sureties, punished by jury go Manifestly, to be to is free. if appel- the case to be is reversed and remanded toas corporation it lant likewise be should reversed re- appellant Temple. manded as to the For obvious rea- suggestion sons, no of error is filed former; and opinion my it should be sustained as to the latter. concurring suggestion Anderson, J., that the of error ought giving Temple to he the extent sustained to new trial. agree originally Temple,

I as I now did well as Company, the Lumber new entitled to a trial on the weight very Both, of the evidence. come however, close being entitled to a directed verdict. In the line fact, between demarcation a directed verdict in case, this upon ground appellee’s evidence is so unrea- sonable as be unbelievable, newa trial on the weight My of the evidence is almost invisible. best judgment, however, as stated, is favor of the latter. et al. et v. Williams al.

Lewis (Division 16, Suggestion 27, B. Oct. 1939. of Error Nov. Overruled 1939.)

[191 33797.] 479. So. No.

Case Details

Case Name: White's Lumber & Supply Co. v. Collins

Court Name: Mississippi Supreme Court

Date Published: Oct 2, 1939

Citations: 191 So. 105; 186 Miss. 659; 1939 Miss. LEXIS 231; No. 33546.

Docket Number: No. 33546.

Court Abbreviation: Miss.