
    Alabama & Vicksburg Railway Company et al. v. Joseph Harz.
    [42 South. Rep., 201.]
    1. Master and Servant. Railroads. Servant’s torts. , Master’s liability. Assattlt and battery.
    
    A railway company is not liable for an assault and battery committed within its depot grounds by the chief clerk of its superintendent upon a former employe whose discharge he had procured three days before.
    2. Same. Testimony as to facts about which the altercation arose.
    
    Where on the trial of a civil action for an assault and battery it appeared that a dispute between the parties arose three days before the altercation wherein defendant asserted that he had. paid money to plaintiff, and plaintiff denied the statement, it was not error to exclude the testimony of a third person that he saw the payment made.
    3. Same. Evidence. Rejected but afterwards admitted.
    
    Reversible error cannot be predicated of the exclusion of evidence when first offered, if it be afterwards introduced.
    From the circuit court of Warren county.
    Hon. John N. Bush, Judge.
    Harz, the appellee, was plaintiff in the court below; tbe railway company and IVIoncure Dabney, appellants, were defendants there. Tbe action was trespass for an assault and battery committed by Dabney, who was the chief clerk of tbe railway company’s superintendent, upon plaintiff. From a judgment for $1,000 in plaintiff’s favor against both defendants they appealed to tbe supreme court.
    Harz was a stenographer and clerk in tbe office of tbe superintendent of tbe Alabama & Vicksburg Railway, and Dabney was chief clerk in tbe same office. A small sum of money had been collected from a passenger for damage to a window, and, when it reached the superintendent’s office, Dabney, in the course of his duties, dictated a letter to Harz as stenographer, to the company’s treasurer, stating that he was remitting the money. The treasurer replied that he did not receive the money. Dabney then told Harz that he had delivered it to him at the time he dictated the letter. Harz denied ever having received the money. Dabney then called upon Harz as stenographer to take down a letter to the treasurer to the effect that he had delivered the money to his stenographer. When this point in the letter was reached, Harz refused to write, giving as his reason that such was not the fact. After some words had passed, Dabney told him that he would either write the letter or be discharged. Harz refused to write, and Dabney, after seeing the superintendent, ordered him discharged. Three days later Dabney met Harz on the depot platform of the railway company, and assaulted and struck him. Harz brought suit against the railway company and Dabney, alleging in his declaration that the assault was unwarranted and without provocation, and committed by an employe of the railway company while about his master’s business. On the trial the court permitted evidence to be introduced as to the dispute between Harz and Dabney, and of the discharge- of the plaintiff on that account. Witnesses testified to the language used in the dispute by Harz, which Dabney claimed to be insulting and the provocation for the assault. The court at first refused to permit Dabney to testify whether he was acting for himself or for the company in committing the assault, but afterwards permitted him to testify on this point, and in answer to the question he stated that he “was acting-on his own personal account.” The defendant attempted to show by a witness that he had seen Dabney give Harz the money, but this proffered testimony was excluded as being immaterial to the issue.
    
      
      McWillie & Thompson, for appellants.
    This court has laid down the law applicable to the case in an able and elaborate opinion. Bichberger v. Express Oo., 13 Miss., 169 (s.c., 18 South. Rep., 922).
    The assault made by Dabney was not in his master’s business, being wholly separated in time and by the attendant circumstances from the business he had with ITarz about the company’s little affair. Mr. Dabney was not employed to beat people and drive them away from the depot.
    The verdict was against both the company and Dabney for $1,000, and on the motion for a new trial should have been set aside as contrary to both the law and the evidence, so far as the company was concerned, on the ground of non-liability, and so far as Dabney was concerned for excess in amount.
    Dabney was asked on direct examination whether he was acting for himself or for the company when he struck the plaintiff. On plaintiff’s objection the court refused to allow him to answer the question. The question went to intent on his part, it is true, and there are some cases holding that testimony as to one’s intent is inadmissible, but there is much authority to the contrary, and an able text writer on evidence makes the matter too plain for doubt. 1 Wigmore on Evidence, sec. 681.
    The defendants sought to prove by'Mr. Day, one of the clerks in the Yicksburg office, that he saw Mr. Dabney hand the money to Harz, but, on objection of plaintiff, the court refused to allow the witness to testify. This was clearly erroneous. While it had no bearing on the question of the liability, it certainly was admissible in mitigation of damages, for it went strongly to show that Harz had falsely and brazenly persisted in denying the truth of Dabney’s statement and impeaching his integrity — conduct well calculated to incense him. Even if liability be admitted, the verdict is excessive, and might have been much less had the jury heard the testimony of Day. The company was equally interested in having the damages mitigated, for the plaintiff was not entitled in a suit against both master and servant to recover against tbe master any greater amount of damages than it was entitled to recover against the servant whose acts constituted tbe sole ground of complaint.
    Tbe characterization of Dabney’s statement as a lie was provocation for an assault. In Mississippi “it is regarded as tbe first lick,” and tbe whole evidence shows that it was a sense of this indignity that led Dabney to make tbe assault.
    If tbe party claims damages not merely for tbe naked assault, but for bis wounded feelings, and seeks to inflame tbe jurors by showing that be bad been publicly insulted by opprobrious language used with tbe evident intent to degrade him in tbe eyes of bis fellow citizens, may not tbe defendant be allowed to show that tbe complainant bad himself been guilty of using like words, or by bis conduct, and by insults and provocations, bad really been tbe cause of tbe assault? Tbe plaintiff may have been passive and silent at tbe moment of tbe assault, while tbe defendant Avas violent and denunciatory; and if no facts can be shoAvn beyond those transpiring at that meeting, tbe plaintiff would present a case, apparently calling for exemplary damages, while,' if tbe Avbole truth was brought out, tbe defendant would appear tbe least in fault, so far as regards provocation.
    There is an instinct, or if not quite that, a dictate of common sense, which is neither AAdse nor hardly possible for tbe laAV to disregard, that a man should not have pecuniary recompense for injured feelings or public degradation Avhen be has himself outraged tbe feelings of another, or so conducted himself as justly to excite public odium by open contempt of tbe decencies of life. Tbe law Avill protect tbe band from actual violence upon it, although it may sadly need ablution, but beyond this Avill require “a shoAV of bands” before it will adjudge damages for an alleged defilement. Prentiss v. Shaw, 96 Am. Dec., 415 (56 Me., 421).
    
      McLaurin & Thames, and J. D. Thames, for appellee.
    Tbe true test of tbe liability of tbe railroad company is, as laid down in Bichberger v. Express Co., 73 Miss., 161 (s.c., 18 South. Rep., 922), whether at the time the assault was committed, Dabney was about his master’s business. That being the law, and it also being the law laid down in the same case, that a corporation is liable for torts of its servants, and another case says: “A corporation is liable for the torts of its servants in the same cases and in the same manner and form of action as other masters.” Central, ele., B. B. Co. v. Brown, 109 Gra., 250, and numerous other cases that it is unnecessary to mention, that it is a matter of fact for the jury to pass upon all the surrounding facts and circumstances, whether or not Dabney was about his master’s business at the time the assault was committed.
    “Whether a particular act of a servant was or was not done in the line of his duty is, in most cases, a question of fact to be determined by 'the jury from the surrounding facts and circumstances.” St. Louis, etc., B. B. Co. v. Hendricks, 3 Am. St. Rep., 220; Bitchie v. Waller, 38 Am. St. Rep., 361; Bahn v. Singer Mfg. Co., 26 Red. Rep., 912.
    Whether a servant did a tortious act with a view to his master’s service, or to serve a purpose of his own, is a question of fact for the jury. Dooley v. Town of Sullivan, 2 Am. St. Rep., 212; Chickering v. Basiress, 17 Am. St. Rep., 312.
    The court below was clearly right in sustaining the objection of appellee’s counsel to the question, “Were you acting for yourself or for the railroad when you hit him ?” This was a question of his intent, and was clearly inadmissible, as it was for the jury and not for the witness to say who he was acting for.
    The court was right in not allowing the witness, Day, to testify, because it is not now, nor never has heen proper, to allow one witness to contradict another on an immaterial point.
   Whitfield, C. J.,

delivered the opinion of the court.

The case of Richberger v. Express Company, 73 Miss., 161 (18 South. Rep., 922; 31 L. R. A., 390; 55 Am. St. Rep., 522), is decisive against liability on tbe part of tbe railroad company on the facts in this record.

On behalf of appellant, Dabney, it is said that the court erred in not allowing Dabney to state whether he was acting for himself-or the company in committing the assault. It is true that the court did first so refuse to let him testify, but in less than ten lines below the record shows that he was allowed to testify on this point. There is no merit, therefore, in this objection.

The testimony of the witnesses, Robinson and Dourshay, was allowed to go to the jury in full by the court. The defendant, Dabney, thus got the full benefit of the alleged provocation, although the provocation had been given three days before.

The ingenious argument of counsel to show that the witness, Day, should have been permitted to testify that he saw Dabney hand the money to Harz is clearly seen, in its last analysis, to be fallacious. The learned counsel for appellant relies on the case of Prentiss v. Shaw, 96 Am. Dec., 475, and it must be admitted that it fully sustains their contention to the effect that such testimony is competent to mitigate the damages which the jury may impose by way of punishment, although not competent to mitigate actual damages. Our own court, in Martin v. Minor, 50 Miss., 42, has laid down the correct doctrine on this subject, which we now reaffirm. The case of Prentiss v. Shaw, supra, is a remarkable case of judicial special pleading, and strikes us as a very ingenious, but thoroughly unsound, effort to change a settled rule of evidence to suit the political exigencies of a very unique case. It is not supported by any authority whatever.

It results from, this that the judgment of the court below is reversed as to the railroad company, and the suit as against the railroad company is dismissed, and judgment as against appellant Dabney is affirmed.  