Richberger v. American Express Co.

Whitfield, J., delivered the opinion of the court. Plaintiff had been made to pay an overcharge on express matter from Clarksdale to Tutwiler, in this state, by the local agent of appellee, and the general agent had been seen, and stated that the matter would be arranged. Plaintiff saw the local agent about it on December 25, 1894, but was put off. Subsequently, the declaration avers, ‘‘said plaintiff, on or about the first day of January, 1895, went to the office of said express company . . . upon business with said company, when . . . said agent of said company in charge of the office informed plaintiff that he then and there desired to refund to plaintiff the said overcharge, . . . and did then and there pay to plaintiff said overcharge, and required plaintiff then and there to sign a receipt for the same, and, when the said plaintiff signed and delivered said receipt to said agent, the said agent did, then and there, immediately upon the reception of said receipt, and while plaintiff was there in the office of said company, wilfully, wantonly, oppressively and wrongfully curse, abuse, insult and maltreat plaintiff, because plaintiff had demanded and received from said company said overcharge,” etc. The old doctrine of McManus v. Crickett, — 168 — 1 East, 106, that the master is never liable for the wilful or malicious act of his servant — like the early doctrine that a corporation was never so liable, which latter doctrine arose out of the early misconception of the nature of a corporation (see 5 Thomp. Com. on Corp., §§ 6275, 6277, 6280, 6298) — has long since been repudiated. Cowen, J., put the whole argument, for the opposite view, in a single sentence when he said, in Wright v. Wilcox, 19 Wend., 343, that ‘the dividing line was the wilfulness of the act.” But the whole argument against liability on such reasoning is definitely and conclusively answered in Thompson on Corporations, where the whole question is exhaustively treated. Says this author in § 6298: “ The courts which have so ruled have proceeded on the theory that authority from the master to the servant to commit a wilful wrong will not be implied, and that the servant, when so acting, will therein be deemed to act not for his master, but for himself. If he makes use of his master’s property in committing this wrong, he will be deemed, according to the fantastic reasoning of Lord Kenyon in McManus v. Crickett (borrowed from Rolle’s Abridgment), to have acquired, for the time being, a special property therein. The fallacy of this reasoning was that it made a certain mental condition of the servant the test by which to determine whether he was acting about his master’s business or not. Moreover, with respect of all intentional acts done by a servant in the supposed furtherance of his master’s business, it clothed the master with immunity if the act was right, because it was right, and, if it was wrong, it clothed him with a like immunity, because it was wrong. Pie thus got the benefit of all his servant’s acts done for him, whether right or wrong, and escaped the burden of all intentional acts done for him which were wrong. Under the operation of such a rule, it would always be more safe and profitable for a man to conduct his business vicariously than in his own person. He would escape liability for the consequences of many acts connected with his business springing from the imperfection of — 169 — human nature, because done by another, for which he would be responsible if done by himself. Meanwhile, the public, obliged to deal or come in contact with his agents, for intentional injuries done by them, might be left wholly without redress. . A doctrine so fruitful of mischief could not long stand unshaken in an enlightened system of jurisprudence.” And he states that it is repudiated by eminent text writers and the great weight of modern authority, citing quite freely the authorities to date. He then correctly shows the true test to be, not whether the tort was committed in pursuance of orders from the master, or against orders, whether the master ratified or not, whether the tort was wilful and malicious or not, but whether, and solely whether, the act constituting the tort was done in the master’s business. As well said in Railroad Co. v. Young, 21 Ohio St., 518: “If the nature of the injurious act is such as to make the master liable for its consequences, in the absence of the particular intention, it is not perceived how the presence of such intention can be held to excuse the master.” Sections 6299-6316, inclusive. He also clearly points out that the rule is not one of logic, but of public policy and necessity, a view concurred in by Judge Andrews in Higgins v. Watervliet Turnpike Co., 46 N. Y., 27, the reasoning in which case, and in Rounds v. Delaware, etc., R. R. Co., 64 N. Y., 129, is unanswerable. To the same effect see Palmeri v. Manhattan R. R. Co., 30 N. E. Rep., 1001; Cooley on Torts, 626 (1); Mecham on Agency, §§ 710, 711, and the authorities cited by these writers. Judge Thompson is not alone in his criticism of McManus v. Crickett, supra. Chief Justice Ryan, in Craker v. Chicago, etc., R. R. Co., 36 Wis., 657 (17 Am. Rep., 504), points out the fact that McManus v. Crickett rested on Middleton v. Fowler, the only case cited in its support, and that that case was not a case of malice, but of negligence, and said, with great pertinency and power, that ‘ ‘ one employing another in good — 170 — faith to do his lawful work would be as little likely to authorize negligence as malice, ’ ’ and that ‘ ‘ either would be equally dehors the employment.” See, also, American Ex. Co. v. Patterson, 73 Ind., 430; Southern Ex. Co. v. Fitzner, 59 Miss., 581; Williams v. Planter's Insurance Co., 57 Miss., 759. It thus appears that McManus v. Crickett is not now law. Counsel for appellee relies upon and cites this case, and the cases of McCoy v. McKowen, 26 Miss., 487, and Railroad Co. v. Harrison, 48 Miss., 112. It is true that both these cases are based on McManus v. Crickett. It is also, true that both expressly declare that “it is immaterial whether’ or not the tortious act be committed while the agent is engaged in the rightful business of his employer, which he is attending to by his direction; for if he transcends his authority while so engaged, his acts do not bind his employer unless sanctioned by him; ” thus declaring immaterial that which is the very test of liability in this class of cases. So far as this declaration is concerned, these cases are hereby overruled expressly, that they may not further mislead. They have been practically overruled by repeated subsequent decisions of this court. Williams v. Planters' Ins. Co., 57 Miss., 759. As to Railroad Co. v. Harrison, supra, it is correctly said by Judge Thompson, § 6300, bottom of p. 1929, that “the true reason of the decision was not that the act was wilful or malicious, but that it was plainly outside the line of duty of the servant. ’ ’ But it is urged that however applicable this doctrine may be to carriers of passengers, it is not applicable to an express company. Doubtless there is a difference in the extent of the application of the principle, as between carriers of passengers and express companies, measured exactly by the difference in the things done by them in the discharge of their duties respectively. But the principle applies to both. An express company does not transport passengers, and cannot be made liable as a carrier of passengers might for wilful torts committed by its agents on passengers in their transportation; but it keeps — 171 — offices for the transaction of its proper business, a business calling to its offices every day thousands of citizens, and in its dealing with its customers, in its offices, in its business, it is bound, in Judge Story’s language, “for respectful treatment and for decency of demeanor.” It is impossible to say, on the allegations of this declaration, that the tort committed immediately upon the delivery of the receipt to the agent, and because of the demand for the refunding of what was plaintiff’s conceded due, was so separated in time or logical sequence as not to have been an act done in the master’s business. The whole transaction occurred in the shortest time, and was one continuous and unbroken occurrence. The cursing and abusing and maltreatment were all administered in connection with the taking of the receipt and immediately upon its delivery, and because of the demand for his rights in that matter, and while plaintiff was in appellee’s office to transact, and transacting, this very business. What was said and done thus immediately upon the delivery of the receipt, was part of the res gestee. As well said by Judge Thompson (Com. on Corp., § 6299, top of page 4928): “In this view, even under the modern doctrine, the acts or declarations of the servant or agent tending to show his state of mind at the time of the act complained of, would be admissible in evidence as part of the res gestee.' ’ We have heretofore quoted from the masterly opinion of Judge Andrews in Rounds v. Delaware, etc., R. R. Co., 64 N. Y., 136, in Railroad Co. v. Latham, 72 Miss., 32, to show when, in this character of case, the corporation would not be liable. Complementary to that, we close this opinion with the words of the same great judge in the same case, at page 134, to show here a case of liability: “The master who puts the servant in a place of trust or responsibility, or commits to him the management of his business or care of his property, is justly held responsible when the servant, through lack of judgment or discretion, or from infirmity of temper, or under the influence of passion aroused by the cir — 172 — cumstances and the occasion, goes beyond the strict line of his duty and authority and inflicts an unjustifiable injury upon another.” Reversed, demurrer overruled and cause remanded.