Alden Mills v. Pendergraft , 149 Miss. 595 ( 1928 )

^* Corpus Juris-Cyc. References: Master and Servant, 39CJ, p. 548, n. 93; p. 1174, n. 2; p. 1285, n. 10; On liability of master for assault by employee acting within scope of his employment, see annotation in 24 A.L.R. 538; 40 A.L.R. 1209; 18 R.C.L. 807; 3 R.C.L. Supp. 851; 4 R.C.L. Supp. 1209; 5 R.C.L. Supp. 1003; 6 R.C.L. Supp. 1086. The appellant is a corporation operating a hosiery mill which runs both night and day. J. Samuel Goldman is its day foreman, and Alpha E. Burt is its night foreman. Both Goldman and Burt are authorized to employ and discharge laborers, and Goldman, but not Burt, is authorized to determine their wages. Pendergraft was an employee of the mill, working on the night shift. On the night of the 7th of October, 1926, Pendergraft and several other of the appellant's employees decided to, and informed Burt that they would, leave the appellant's employ unless their wages were raised. Burt advised them that he had no authority to raise their wages, but for them to return to work, and that the matter would be referred to Goldman the next day, who would then determine whether or not their request would be granted. They accepted Burt's advice and worked during the remainder of the night. Pendergraft returned to the mill the next afternoon at 5:30, a short time before the change from the day to the night shift. The declaration alleges that "he did not report for work," and it is stated in the brief of counsel for the appellant that, "according to plaintiff's own testimony, . . . he was not an employee of the Alden Mills when the assault was made upon him."

According to Pendergraft's evidence, he was in a restaurant near the mill at 5:30, when he was approached by Goldman, who told him that he and Burt wished to see him (Pendergraft) in the office; that he went into the mill, where he was assaulted and beaten by Burt in Goldman's presence, Goldman, at the time stating, "I will learn the son of a bitch how to make up a strike."

According to the evidence for the appellant, what Goldman did when he saw Pendergraft was to discharge him and tell him to report at the office, where he would be paid what the appellant owed him for services theretofore rendered, and that Burt thereafter struck Pendergraft under such circumstances as to impose no liability therefor on the appellant.

The purpose for which the declaration alleges that Goldman and Burt assaulted Pendergraft was "in order to further their master's business of securing labor as cheaply as possible, and in order to prevent any attempt on the part of the employees to band themselves together, or an attempt to secure an increase in wages, and in order to intimidate all of said employees so that they could control them more easily, unlawfully and willfully entered into a conspiracy to entice the plaintiff back to said mill and unlawfully beat and batter him."

The appellant contends that it was entitled to a directed verdict for two reasons: (1) The overwhelming weight of the testimony supports Goldman's version of the assault; and (2) that if the assault was made on Pendergraft as claimed by him, that Goldman and Burt in making it, were not acting in the course of their employment, and in furtherance of the appellant's business.

Pendergraft's version of the manner and circumstances under which the assault on him was made was supported by evidence sufficient to require its submission to the jury, so we come, at once, to the appellant's second contention.

Burt's relation to the appellant will be here left out of view, and the liability vel non of the appellant will be determined in the light of Goldman's relation to it.

There was necessarily included in Goldman's duty to employ and discharge the appellant's laborers, and to fix the amount of their wages, the further duty to employ laborers for such wages as would enable the appellant to realize a just profit on its investment. One method of doing this would be to induce or prevent these laborers from demanding, or, after demanding, from insisting on, an increase in wages over that fixed by Goldman, and for which they had agreed to work. If the assault on Pendergraft was participated in by Goldman, and was for the purpose of intimidating the appellant's employees, and thereby prevent them from demanding an increase in wages, or prevent those who had demanded an increase in wages from insisting thereon, which questions were for the determination of the jury, then the assault was made in the course of, and as a means to, the accomplishment of one of the purposes of Goldman's employment, and therefore in the course of and in furtherance of his master's business.

It does not appear that the appellant specifically authorized Goldman to employ violence in inducing the laborers to be content with their wages; nevertheless, the appellant is liable for the use which the jury here found was made by him of violence for that purpose. If the act complained of was in furtherance of the master's business, and within the course of the servant's employment, the master will be liable therefor, although it was in excess of the authority conferred by the master on the servant (39 C.J. 1285) and was wilfully and maliciously done (Richberger v. Exp. Co., 73 Miss. 161, 18 So. 922, 31 L.R.A. 390, 55 Am. St. Rep. 522). Compare Natchez,C. M.R.R. Co. v. Boyd, 141 Miss. 593, 107 So. 1; Hines v.Green, 125 Miss. 476, 87 So. 649; Davis v. Green,260 U.S. 349, 43 S.Ct. 123, 67 L.Ed. 299.

Affirmed.