Very deferentially and very respectfully I dissent from the conclusions of the controlling opinion in this case, as to liability. In my judgment the appellant was entitled to and should have been granted a peremptory instruction. The negro Burley perpetrated the acts resulting proximately in the fire, not as the agent of appellant but as the agent and by the assistance directly of appellee, so that liability for such extraneous acts beyond his appointed powers should and could not in good reason and fairness be imposed upon appellant.
It is contended that because the linoleum had to be warmed it was necessary to leave the gas fixtures in operation for a time, although it could have been warmed in the bathroom. It was argued that its disconnection and removal was as a consequence a mere incident to the laying of the linoleum, and hence it was dealt with in the scope of employment of appellant's servant. As I understand the word "incident" or "incidental," the meaning is something appertaining to a purpose. Webster defines it thus: "Something necessarily appertaining to or depending on another, which is termed the principal."
In the conversation between Mrs. Creekmore and the salesman of appellant, she merely purchased the linoleum and the service of laying it on the kitchen floor, a simple operation, to which appellant agreed. There was nothing in the conversation to the effect that the kitchen fixtures involved a system employing the highly dangerous and volatile gas, butane. There was nothing said about this fixed equipment having to be disconnected and removed and replaced. Certainly, in my judgment, this hazardous operation was not incidental to the laying of the linoleum. These appliances were rigidly affixed, and appellant's servant was not a plumber, carried no tools suitable to disconnecting and refixing these fixtures, and hence it cannot be maintained that such a situation was in contemplation *Page 66 of appellant when the trade was made with Mrs. Creekmore. It cannot be successfully maintained moreover in my opinion, that disconnecting and reconnecting these highly hazardous fixtures for the use of this explosive element of butane gas was an incident or necessarily appertaining to the laying of linoleum on a floor.
Suppose, when this negro reached the home of Dr. Creekmore, he had found a plank missing in the floor of the kitchen, or one that was warped out of position so that it had to be ripped out and realigned and evened with the rest of the floor before the linoleum could be laid — can it be successfully argued that this negro layer of linoleum, as an incident to the laying, would have to do the carpenter's work involved before laying the floor covering? That is the work of a carpenter, just as the extraneous and difficult work of removing and replacing the fixtures here was the work of a plumber. These articles were fixtures, not loose pieces of furniture that could be easily shifted from place to place in the kitchen as the work progressed. It is no answer, I think, that the quarter rounds had to be removed so the uneven edges of the linoleum could be concealed by their replacement, as a matter of common knowledge it is customarily necessary to a workmanlike job of laying the linoleum, and a part of it. But disconnecting and reconnecting plumbing fixtures containing highly volatile and explosive gas from and to their firmly fixed metallic connections is another thing, and difficult and requiring special skill not represented by appellant to have been possessed by this negro.
In my opinion, therefore, this extraordinary additional service, the co-labor of both appellee and appellant's servant, cannot be said reasonably to be one which might have been contemplated by a reasonable person as incidental to the service of laying linoleum, when only the sale and laying of the linoleum was asked and promised by the respective contracting parties. *Page 67
It follows that it is pertinent to inquire whose agent was this negro in his handling of these fixtures and this butane gas, highly hazardous if released from its confinement in pipes and containers? He demurred to doing it, but with the assistance of Dr. Creekmore, from whom he borrowed the necessary tools, he undertook to do it, because, as he stated, he did not want to vex appellee, or words to that effect. Dr. Creekmore's wife was in a hurry to have the work completed ahead of the arrival of guests, and this negro was aided by Dr. Creekmore in proceeding with work beyond the laying of linoleum, and for which the doctor furnished the tools, all of which in the subsequent course of events led to the burning of Dr. Creekmore's house. Had the negro's reasonable protest been heeded, there is nothing in the record to support any conjecture otherwise than that the house would not have burned. In my judgment, this negro was doing work not necessarily incident to laying linoleum, and acting, therefore, beyond the scope of his employment; and was aiding in the joint doing thereof by appellee, so that in the doing, he was the agent of appellee, and not of appellant, and hence the latter is not liable. In this connection, the maxim, "qui facit per alium facit per se" is applicable, I think, to the actions of appellee on this occasion in his dealing with this negro.
The testimony of the negro, Burley, as to what happened is:
"Q. Who got the tools with which to unhook the pipe? A. Doctor got them. I didn't have a pipe wrench. We had some, I don't remember not the whole story of it, we had some objection about the stove. I didn't show any contempt being up here. It is my will to try the best I can to satisfy people. I knowed the stove was out of my place to take out. I said to Doctor, `If you have got a pipe wrench I will take the stove out, provided if you will help me.' He said, `I will help.' Me, I may not have said provided you give me help."
Dr. Creekmore also said he helped him. *Page 68
It is elemental, as held by this Court in Davis v. Price,133 Miss. 236, 97 So. 557, that a master cannot be held responsible for a tort committed in furtherance of his business, unless it is shown to have also been committed in the course of the appointed duties of the tort feasor. This negro's will was permitted in this case to extend his own services, for his own reasons, but did not co-extensively enlarge the liability of appellant for such additional services. They were the decision of the negro, carried out with the help of the appellee, and not appointed by the appellant or anticipated. The negro's judgment should not be permitted in this matter to enlarge the scope of his employment by appellant. He was cooperating with appellee, to avoid showing him contempt, as he said, or to accommodate him.
In Shell Petroleum Corp. et al. v. Kennedy, 167 Miss. 305,141 So. 335, we held that the judgment of an employee could not extend the liability of his employer beyond the appointed scope of his employment, even where, if success had attended employee's judgment it eventually might have in a degree furthered the master's business.
I think here clearly the negro Burley was not acting in discharge of his appointed duties to appellant, but was acting as the agent of appellee, in doing the precise and particular things proximately resulting in the fire which destroyed the house, and I therefore respectfully dissent accordingly.
Griffith, J., and Sidney Smith, C.J., concur in this dissent. *Page 69