Louisville & N. R. v. Corlander

Anderson, J., delivered the opinion of the court. The appellee, Mrs. A. B. Coriander, sued the appellant, the Louisville & Nashville Bailroad Company, in the circuit court of Harrison county for an injury alleged to have been done her by appellant through one McDonald, agent of appellant at its station, Creole, and recovered a judgment for a nominal sum, from which appellant prosecutes this appeal, and appellee a cross-appeal. At the conclusion of the testimony áppellant requested the court to direct a verdict in its favor, which request was refused by the court, which action of the court appellant assigns as error. [28] Iii considering- ihe question, whether tlie trial court erred in refusing this instruction, all the evidence proving or tending to prove appellee’s case should be taken as true. Ho treating the evidence, the appellant -made the following case: At the time of the alleged in jury she was engaged with others in loading lumber on a car on appellant’s road near its depot at Creole. Appellant’s depot was across its railroad tracks, some distance from where ap-pellee was engaged in loading lumber. Appellant’s agent McDonald in charge of its said depot, appeared in the floor thereof, and by his conduct offered appellee a gross insult. At the time of the alleged injury appellant’s agent was not engaged about the business of appellant. Appellee was not a. passenger on appellant’s road. Bhe was not inside, but away from appellant’s depot. Tn loading the lumber it Avas not necessary for her to have, and she was not having any business whatever with appellant’s said agent in any wise connected with its business of a cárrier of passengers and freight. According to her own testimony, appellant’s agent McDonald was simply standing in the door of the depot, engaged in no duties for appellant, while appellee was away from the depot some distance — on the other side of the railroad track therefrom — engaged about a matter with which said agent had nothing to do, at least at that particular time, when'the latter offered her the insult complained of. Clearly at the time of the injury appellant’s agent McDonald was not engaged about the business of appellant. He was on a mission of his own, strictly personal to himself and appellee. This court has repeatedly held that the master is not liable for the acts of his servant done without the scope of the latter’s employment. Moore Stave Co. v. Wills, 111 Miss. 796, 72 So. 228; Canton Warehouse Co. v. Poole, 78 Miss. 147, 28 So. 823, 84 Am. St. Rep. 620; A. & V. Ry. Co. v. Hart, 88 Miss. 681, 42 So. 201; A. & V. Ry. Co. v. McAfee, 71 Miss. 70, 14 So. 260. It was stated, however, in the oral argument, although there is no such contention in appellee’s brief, that by vir [29] tue of section 4867, Code of 1906 (section 7652, Hemingway’s Code), it was made the duty of appellant’s agent to protect appellee against insult; and for a. greater reason made it the duty of said agent not to insult appellee. That statute is in this language: “Every railroad shall keep rooms open for the reception of passengers at all passenger stations at least one hour before the arrival, and one-half hour after the departure, of passenger trains; and all reception rooms shall-be made comfortable, and shall be kept in a cleanly and decent condition, and properly heated when necessary, and properly lighted at night. The agent or person in charge shall preserve order, and, if necessary, eject any person whose conduct is boisterous or offensive.” Construing this statute in Andrews v. Y. & M. V. R. Co., 86 Miss. 129, 38 So. 773, the court said: “In our opinion, Code 1892, section 4313, has no application to the facts of the instant case. That section was intended to conserve the convenience and comfort of the traveling public, first, by providing comfortable and cleanly rooms for their reception .and accommodation; and, second, 'by protecting them from boisterous and offensive conduct from others. This section attempts to achieve the desired end by imposing it as a positive duty on all railroad companies at every passenger station to keep open, under the conditions and for the time stated therein, cleanly, Avarm, and properly lighted reception rooms, and by vesting the person in charge of such rooms Avith necessary power as a conservator of the peace. But appellant at the time of the difficulty of Avhich he now complains, though in fact due to his oavu reprehensible language and aggressive conduct, was not in the room so prepared, but in another part of the depot building, into which he had gone in furtherance of his personal ends and in willful disregard of an established rule of the appellee. We hold that every prospective passenger or other person laAvfully entitled to the use of the reception rooms at a passenger station, and Avhose oAvn conduct is not boisterous or offensive, is pro [30] tected in such use by the provisions of the section cited. But that statute cannot be so extended as to cover a difficulty of a. personal nature, not growing out of or connected with the service of the employee or the business of the master, .arising between two individuals not in the reception room even though one of the parties should be an employee of the railroad company owning or controlling the depot.” We have here an altercation purely personal to appellant’s depot agent and appellee, entirely disconnected from the business of appellant as a common carrier of passengers and freight; and which arose between them, not in the reception room of the depot, but while appellee was outside of and away from the depot. The statute cannot be ex-.tended so as to cover such an injury occurring as did ap-pellee’s. We conclude, therefore, that the trial court erred in refusing to direct a verdict for appellant. And this view necessarily disposes of the cross-appeal adversely to appellee. Reversed and judgment here for appellant. Reversed.