Walters v. Stonewall Cotton Mills

Anderson, J., delivered the opinion of the court. Appellant, E. E. Walters, sued appellee, Stonewall Cotton Mills, a corporation, in the circuit court of Clarke county for damages for an injury received by him at the hands of one Nicholson, alleged to be an employee of appellee, and acting within the scope of his employment when the injury was inflicted. At the conclusion of the evidence for appellant, on motion of appellee the evi — 370 — deuce was excluded and a verdict directed for the latter, from ydiich appellant prosecutes this appeal. Appellant alleged in his declaration ahd undertook to prove that <7. P. Nicholson was a servant of appellee, employed about its cotton mill plant at Stonewall to- protect the plant, from depredations of trespassers and to arrest and prosecute violators of the criminal laws of the state ; that in furtherance of such employment Nicholson assaulted, beat, bruised, and wounded appellant most painfully and seriously. Appellee defénded on two- grounds, namely: That Nicholson, when he committed the assault and battery on appellant,- was .acting as deputy sheriff of Clarke county and was not the servant of appellee; and that, if he was the servant of appellee, the latter was not responsible for the assault and battery committed on appellant, because in doing so Nicholson was not acting in furtherance of his employment, but was serving his own ends. In passing on the propriety of a directed verdict, every fact proven, or which the evidence tends to prove either directly or by reasonable inference, should be treated as proven as against the party in whose favor the verdict is rendered. So construing" the evidence- offered on behalf of appellant, the following case was made: Appellee was the owner of a larg'e cotton mill factory at Stonewall in Clarke county and had been for many years. Stonewall is ,a, mere village; it is unincorporated. Appellee’s cotton mill plant and the activities connected therewith was about all there was at Stonewall. Appellee owned, as a part of its plant, the homes in which its officers and a large number of1 employees resided. It owned the larger part at least of all the property in the little village; 'the streets and alleys were laid out on appellee’s property. There was a moving picture show there, which was on appellee’s, property; there was also a village prison located on appellee’s property, where persons charged with crime and under arrest were confined while awaiting their trial. It had at one time the — 371 — larger part or all of the village fenced, with a gate entering the inclosure. Stonewall, being unincorporated, had no municipal government. The community had to look to the officers of the county, sheriff, constable, and justice of the peace, to preserve order and enforce the criminal laws of the state. It seems from the evidence, that the only semblance of local government was furnished through the very laudable efforts of appellee in this manner : Nicholson was paid seventy-five dollars a. month by appellee to arrest and prosecute violators of the law in the village. There was a justice of the peace, who was paid a salary by appellee, and there was an old negro who took care of the streets and alleys, who was paid a salary by appellee. Nicholson’s famity worked in appellee’s cotton mill, and he with his family occupied one of the residences owned by appellee. Appellant in order to make out his case, 'put Nicholson on the witness stand. He was plainly unfriendly to appellant and friendly to appellee. He testified on direct examination in substance that some time in 192,0 Mr. Wainwright general manager of appellee’s cotton mill, told him he would have the sheriff of Clarke county to appoint him deputy sheriff for1 the purpose of arresting and prosecuting violations of the criminal laws of the state, taking place in and around Stonewall; that appellee would make his bond as such deputy sheriff and pay the necessary premium charged by the surety company for making the bond; and in order to supplement any fees he (Nicholson) might make as such deputy sheriff, appellee would pay him, seventy-five dollars per month. Nicholson said that he accepted that proposition, and from that time, which was some time in 1920, up to and after appellant’s injuries, which were inflicted some time in April, 1922,, he had served under that arrangement. He testified that he was employed to make arrests and “to prosecute anything unlawful,” and, besides his fees allowed by the court in each case of conviction, appellee paid him the seventy-five dollars so that he could have — 372 — sufficient to live on. When Nicholson was turned over to the attorneys for appellee, he very willingly and positively stated that he was employed alone by the sheriff of Clarke county as deputy sheriff; that appellee had nothing" to do with his employment, except its manager, Mr. Wainwright, had him appointed deputy sheriff and agreed for appellee to pay him a salary of seventy-five dollars per month and pay the premium on his official bond; that appellee did not control his services, in fact, had nothing to do with his services; that he acted alone for the sheriff of Clarke county; and that he was so acting at the time of the injuries for which appellant sued. The injury sued for came about in this way, according to appellant’s evidence: He with some of his friends went to a picture show in Stonewall. They went at night. They remained only a short time. As they came down the steps from, the picture show, they met Nicholson, who ordered them to leave town; they went on to where their horses were hitched. In a, very short time Nicholson followed them and came up to where they were standing at the place where their horses were hitched. Nicholson, without any provocation, assaulted and beat appellant most unmercifully. He knocked out some of appellant’s teeth with a pistol and with the same instrument beat appellant over the head.and face, and kicked him with his foot. Nicholson testified that there was no truth in what appellant and his witnesses said about the altercation ; that the truth was that appellant was drinking;, and, when he (Nicholson) approached appellant about it, demanding that he leave Stonewall or submit to arrest, appellant made an assault on him with a knife; and, iii self-defense, he struck appellant. Appellant, after being wounded by Nicholson, was taken to the village prison located on the property of appellee and owned by appellee, and there kept for some hours. Appellant showed by the chancery clerk of Clarke county that the records in his office revealed neither an appointment by the sheriff of Nicholson as deputy sheriff — 373 — nor oath of office or bond by Nicholson as such deputy sheriff. The only evidence that Nicholson was deputy sheriff was simply his statement that appellee’s general manager, Wainwrigiit, had agreed in 1920 to have him appointed deputy sheriff, and that since that time he had been acting .as such. There is diversity of authority as to the liability of natural persons and corporations for the wrongful acts of police officers who have been commissioned by public officials. Some courts have held that, although the defendant procured the appointment of such police officer and paid him for his services in connection with defendant’s property, still there can be no recovery; that such officer acts for the state and not for the defendant. However, the weight and better reasoned modern opinion is that, udiere persons, natural, or artificial, with the consent of the state, employ police officers of the state to represent them in protecting and preserving their property and maintaining order on their premises, and such officers are engaged in the furtherance of their duties, acting within the general scope of their powers, they become and are servants of and employees of such private persons and corporations, and, for -any negligent or wanton acts committed by them in the line of their duties to the injury of others, their masters or employers are liable. 28 R. C. L. 786, section 246, and cases in notes. Our court held in King v. Illinois Central R. Co., 69 Miss. 245, 10 So. 42, that the Act of February 22, 1890 (Laws of 1890, p. 106), constituting railroad depot agents in this state conservators of the peace with authority to preserve order in waiting rooms and power to make arrests, did not make them officers of the state, but merely enlarged and defined their duties as agents of the railroad companies; that for the unlawful exercise of this authority the railroad companies were responsible; and that, where a depot agent made an ar-rest of one not guilty of any offense or otherwise liable to arrest under said statute, the railroad company was liable for false — 374 — imprisonment, although the agent had no express instructions. from the railroad company to make arrests and supposed he was acting" as an officer of the state. The facts of that case, it is true, are different from the facts of this, but it seems the case is in point here in this: The court held in that case that the railroad company could not hide behind the'fact that its depot agent was a public officer authorized to make arrests; that in truth and in fact the depot agent in making; the arrest was primarily serving the railroad company and, that that was the purpose of the statute. Appellant’s evidence tends to show that, primarily and mainly, appellant was employed and paid by appellee to serve its purposes, which was the general welfare of this little community, so far as the same could be promoted by him,. Appellee promised they would have him clothed with the necessary official authority, and Nicholson testified that he acted as deputy sheriff. But conceding that he was a deputy sheriff, appellant’s evidence tends to show, as stated, that the main consideration was to serve appellee. We hold under the evidence in this case that it was a question for the jury as to who was Nicholson’s master; as to whom he looked and had a right to look as his employer. , If it was a fact that appellee merely paid Nicholson seventy-five dollars a month in order to promote the public welfare by having the law enforced, without any authority or control whatever over his. actions in that respect, then clearly appellee would not be liable for his misdeeds. On the other hand if, in acting; as deputy sheriff, it was only sought to clothe him with official authority, and that primarily he was employed by appellee to serve it, even though in doing so the public welfare would be promoted, then appellee would be liable for the injury done by him, if done in the line of his employment. Appellee seeks to justify the action of the trial court in directing a verdict in its favor on the ground that, even though it be conceded that Nicholson was the serv — 375 — ant of appellee, still at the time of the injuries complained of he was acting without the scope of his authority, and therefore appellee is not liable. In order to hold a master liable for the act of his servant it is not necessary to show that the act in question was either expressly or impliedly authorized by the master. If the servant at the time of the wrongful act was engaged for the master in the general scope of his employment, though acting contrary to- the express instructions of the master, still the latter is liable. Or putting the same principle another way, if the servant, when he committed the wrongful act, was acting in furtherance of the master’s business for which he was employed, the master is liable, although the servant in the doing of the act has, contrary to the instruction of the master, stepped beyond his authority. Appellant’s evidence tends to show that Nicholson was employed by appellee to arrest and prosecute violations of the law, and that, when the - injuries complained of were inflicted, lie was acting in furtherance of that employment. We hold, therefore, that the evidence was sufficient to go to the jury on the proposition whether1 Nicholson was acting within the scope of his employment when he inflicted the injuries complained of on appellant. Waterford Lumber Co. v. Jacobs, 132 Miss. 638, 97 So. 187. Appellee contends further that appellant wass bound by the evidence given by Nicholson, whom appellant put on the witness stand; that appellant will not be heard to question the truth of Nicholson’s evidence after making- him his witness; that under that principle Nicholson’s evidence should be taken most strongly against appellant, and so taken it was plainly'- shown that Nicholson was not employed by appellee. Nicholson’s evidence is somewhat •in this attitude: - On direct examination by appellant’s attorney, his evidence tended to make out a case for appellant ; on cross-examination by the attorney for appellee, he denied the existence of every fact which would — 376 — make out a case for appellant. This is not a case of the impeachment of a witness hy the party offering him; it is a case where the evidence of a witness is susceptible to two interpretations, one favorable to the party offering him, the other unfavorable. Under such circumstances the party offering the witness is not barred from the use of his evidence, even though unfavorable to such party; he has the right to have the evidence go to the jury, who will determine which of the witness’ statements is true. Appellee invokes the principle that neither the agency nor the scope of the agent can he proven by the declarations alone of the agent. Certainly by numerous- adjudications of this court that has been determined. But that simply means that the declarations of the agent off of the witness stand cannot be testified to hy others in order to show his agency and. the scope of it. It does not mean that the agent cannot be put on the witness stand and be permitted to testify as any other witness to his agency as well as the scope of his agency. Therefore the evidence of Nicholson, which established or tended to- establish that he was the servant of appellee and in the scope of his employment, was competent. The evidence, offered by appellant and ruled out hy the court, tending to show the extent of the authority exercised by appellee in and about the property and affairs of the village of Stonewall, should have been admitted as bearing, on the question of whether Nicholson was the servant of appellee. It was clearly pertinent. We find no merit in the other questions raised, and we do not deem them of sufficient importance to require discussion. Reversed and remanded.