Sunflower Compress Co. v. Clark , 165 Miss. 219 ( 1932 )

The judgment of the court below herein was reversed on a former day of the present term, and a full statement of the case will be found in the opinion then rendered. 114 So. 477, 478.

The appellee now suggests that we erred in holding that the first count of the declaration stated a prima facie case of negligence on his part in failing to collect the check that was given him by the appellant. The suggestion of error proceeds on the theory that we based the appellee's liability on section 2842, Code of 1930, and the opinion is susceptible of that interpretation. The damages for which the appellee is here liable, if any, are not such as that statute imposes, but are such only as are allowed at common law. This appears in the opinion in connection with the citation therein of 2 C.J. 722, and Moore v. Gholson, 34 Miss. 372.

When the appellee received the check he thereby assumed an obligation to collect it and apply the proceeds to the payment of the taxes due by the appellant, becoming thereby the appellant's agent for that purpose. This agency was something more than a mere gratuitous one, for the appellee himself had an interest in the purpose to be thereby accomplished. Moreover the appellant, after delivering the check to the appellee, became thereby obligated morally, if not legally, as to which we express no opinion, not to withdraw the money from the bank but to leave it there subject to the check. Had the appellee declined to accept the check, all the appellant would have had to do would have been to itself withdraw the money from the bank and apply it to the payment of its taxes. But even should we hold that the appellee was a mere gratuitous agent, nevertheless he will be liable to the appellant if it lost its money because of a failure by the appellee to exercise that degree of care and diligence to collect the check that he should have exercised. This is in accord with practically all of the authorities which hold, in effect, as set forth in section 599, A.L.I. Rest. Agency, Tentative Draft No. 7, that: "One who by a gratuitous promise or other conduct which he should realize will cause another reasonably to rely upon the performance of definite acts of service by him as the other's agent, causes the other to refrain from having such acts done by other available means, is subject to a duty to use care to perform such service or, while other means are available, to give notice that he will not perform." 2 C.J. 722, section 384; Lampley v. Scott, 24 Miss. 528; Moore v. Gholson, 34 Miss. 372; Richardson v. Futrell, 42 Miss. 525.

The only difference between the liability of a gratuitous agent and one for hire is, as set forth in our former opinion, that a gratuitous agent is not held to the same degree of care and diligence that an agent for hire is. Authorities, supra. Moore v. Gholson is controlling here, for the agency there, as here, was for the collection of a debt due the principal. This conclusion is in accord with that reached by the Missouri court in Chouteau v. Rowse, 56 Mo. 65, and State ex rel. Clark v. Gates, 67 Mo. 139. But the question is so elementary that the citation of authority is unnecessary therefor.

The fact that we are deciding this case on the sufficiency of the facts alleged in the declaration to constitute negligence, and not on a request for a directed verdict either way on evidence disclosing such facts only as the declaration alleges, must not be overlooked. Negligence is an inference to be drawn from the facts in each case. If the facts are such that only one reasonable inference can be drawn therefrom, the question is for the decision of the judge; but if more than one reasonable inference can be drawn therefrom, it is for the decision of the jury under proper instructions. All we here decide is that, on the facts alleged in the declaration, it cannot be said as matter of law that no reasonable inference can be drawn therefrom other than that the appellee was not guilty of such negligence as rendered him liable to the appellant for the damages flowing to it therefrom. Whether the contrary inference, that is, that the appellee was guilty of such negligence, appears so clearly from the facts alleged as not to require its submission to the jury is not necessarily before us, and we express no opinion thereon.

The expression in our former opinion, that "in default of which [presentment of the check for payment within a reasonable time the drawee must bear the loss occasioned thereby," may not be a correct interpretation of section 2842, Code of 1930, and should not have been used, for, as hereinbefore stated, the appellee's liability is that which the common law imposes.

The suggestion of error presents and argues a question not referred to, or in any way raised, on the former hearing, and that is that, conceding the personal liability of the appellee, Clark, his conduct was not such as renders his official bond liable therefor, and consequently the court below was correct in sustaining the demurrer as to his bondsman. As pointed out in the original opinion, only one demurrer was filed; both of the defendants joining therein. This demurrer contains no language submitting to the court the separate liability of the appellee and of his bondsman, and the rule in such cases is, that if the pleading demurred to is good as to one of the demurrants, the demurrer should be overruled as to both. Wherry v. Latimer,103 Miss. 524, 60 So. 563, 642; 49 C.J. 433. We, of course, express no opinion on the separate liability of the appellee's bondsman.

Suggestion of error overruled.