Patton v. Southern States Tran ( 1998 )

UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
NO. 96-60547
Summary Calendar
CLEM NEADHAM PATTON, III
Plaintiff-Appellant,
BIEDENHARN BOTTLING GROUP
Intervenor-Plaintiff-Appellant,
VERSUS
SOUTHERN STATES TRANSPORTS, INC.
Defendant-Intervenor Defendant-Appellee,
TOMMY NASH
Defendant-Appellee
Appeal from the United States District Court
For the Southern District of Mississippi
(3:95-CV751BN)
January 20, 1998
Before JOLLY, BENAVIDES and PARKER, Circuit Judges.
PER CURIAM:*
I.
*
Pursuant to 5TH CIR. R. 47.5, the Court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
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FACTS & PROCEDURAL HISTORY
Appellant, Clem “Jim” Patton, III, appeals from the dismissal
with prejudice of his claim against Southern States Transports,
Inc. (hereinafter “Southern”) for ratification of the tortious acts
of its agent, Tommy Nash, and for his negligent employment.
Viewing the evidence in the light most favorable to Appellant,
as we must when reviewing a grant of summary judgment against the
appellant, Fields v. City of Houston, Texas, 922 F.2d 1183, 1187
(5th Cir. 1991), it appears that Patton was assaulted by Nash
without cause, while Patton was at work at the Coca-Cola Bottling
Company in Jackson, Mississippi. Nash was on the bottling
company’s premises in his capacity as a driver for Southern.
Patton sued Nash in the Circuit Court for the First Judicial
District of Hinds County, Mississippi. Thereafter, Biedenharn
Bottling Group, owner of the Coca-Cola Bottling Company in Jackson,
Mississippi, intervened as plaintiff, and Southern intervened as
defendant. Southern then removed the action to the Federal
District Court for the Southern District of Mississippi on the
basis of diversity jurisdiction. Patton joined claims against
Southern under the doctrine of respondeat superior, claiming that
Southern had ratified Nash’s conduct, and for negligent employment,
claiming that Southern negligently failed to investigate Nash’s
criminal history, which purportedly revealed a propensity for
violent behavior.
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II.
LAW & ANALYSIS
A.
Standard of Review
This Court reviews a district court decision to grant summary
judgment de novo, applying the same standard as the district court.
Wynn v. Washington National Insurance Company, 122 F.3d 266, 268
(5th Cir. 1997), citing Bodenheimer v. PPG Indus., Inc., 5 F.3d
955, 956 (5th Cir. 1993).
B.
Negligent Employment
The negligent employment claim was properly dismissed, because
Nash’s criminal record did not show a propensity for violent
behavior. That criminal record was composed of only non-violent
offenses and was the sole evidence upon which Patton’s claim of
negligent employment relied. Indeed the Washington Court of
Appeals case relied upon by Patton, unlike this case, involved an
employee whose criminal record revealed a charge of robbery, a
violent crime. See Carlsen v. Wackenhut Corp., 868 P.2d 882, 888
(1994)(employer was liable for negligent employment of rock concert
usher who assaulted concert-goer, where employer should have known
of usher’s criminal history, which included charge of robbery).
While the presence of a violent crime in an employee’s
criminal history may support the contention that the employee had
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a propensity for violence of which the employer should have been
aware, the lack of any violent crime in the employee’s criminal
history makes the criminal history non-probative of the employee’s
alleged violent propensity. Since the criminal history in this
case lacked any violent criminal charge or conviction, and since it
was the sole evidence relied upon to demonstrate a violent
propensity, Patton’s claim for negligent employment cannot be
supported by the evidence in this case.
C.
Ratification
Under Mississippi law, ratification is “the affirmance by a
person of a prior act which did not bind him but which was done or
professedly done on his account, whereby the act, as to some or all
persons is given affect as if originally authorized by him.” Gulf
Refining Co. v. Travis, 201 Miss. 336, 381, 30 So. 2d 398, 399-400
(Miss. 1947), quoting 1 Restatement, Agency, Sec. 82. The
Mississippi Supreme Court explained that the law of ratification
did not apply to the facts of Gulf Refining, because the employee
“did not claim to be acting as the agent of any one” but rather
acted “in his own name and of his own right.” Id. at 400. By this
the court simply stated the obvious, i.e., the definition of
ratification was not satisfied, because the employee’s actions were
not “done or professedly done on [the employers] account”. This
realization comports with the understanding that ratification is
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limited to cases where the employee objectively acted beyond the
scope of his employment but acted on behalf of or in defense of the
employee’s perception of his master’s interests. In such a case,
though not bound to, the employer may ratify the employee’s actions
and thereby make them the employer’s own.
In the present case, it is conceded that Nash acted outside
the scope of his employment, and it appears beyond peradventure
that he acted on his own behalf, for what interest of his employer
could be served by his assault on Patton? Indeed, Patton does not
argue that Nash assaulted him in defense of Southern’s interests.
Rather, Patton would have this Court conclude that an employer may
ratify any unauthorized act of its employee, whether done on the
employee’s own behalf or that of the employer. Yet, this
contention is inapposite the definition of ratification adopted by
the Mississippi Supreme Court in Gulf Refining, which limits its
application to actions “done or professedly done on [the
employer’s] account”. 30 So. 2d at 399-400. Given the limitation
expressed in the First Restatement as adopted by the Mississippi
Supreme Court in Gulf Refining, we must affirm the summary judgment
against Patton on this point of error.
III.
CONCLUSION
Finding no error in the district court’s grant of summary
judgment in favor of Southern, we affirm.
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AFFIRMED.
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