auctioneer, and the auction duty. Mitchell v. Hayne (1824) 2 Sim. & Stu. 63, 57 Eng. Reprint, 268, 25 Revised Rep. 151. In Deller v. Prickett (1850) 15 Q. B. 1081, 117 Eng. Reprint, 769, 15 Jur. 168, 20 L. J. Q. B. N. S. 151, where an auctioneer against whom an action was brought by the vendee to recover the deposit on a sale of real estate, upon the ground that the vendor's title was defective, applied for an interpleader rule, and it appeared that the vendor had no other property except that of which the title was disputed, the court refused the application unless the defendant should give security for costs; and refused to allow the defendant his costs of the application out of the deposit. III. Miscellaneous. In Ferrier v. Dods (1865) 3 Sc. Sess. Cas. 3d series, 561, 37 Scot. Jur. 270, where an auctioneer sold a horse at auction, not disclosing the name of the owner, and the buyer returned the horse to the seller as unsound, A purchaser of real estate at an auction, who has obtained a judgment against the vendor for the return of his earnest money on account of the latter's failure to make good title, which judgment has been satisfied, cannot recover interest from the auctioneer, even though, in the action against the vendor, he did not recover interest, owing to a failure to prove a demand, and which defect was supplied in the action against the auctioneer. Cockcroft v. Muller (1877) 71 N. Y. 367. In McClean v. Stansberry (1911) 151 Iowa, 312, 35 L.R.A. (N.S.) 481, 131 N. W. 15, it was held that an action against the clerk of an auction will lie to compel the return of money paid on a bid, without an order from the seller, where the article purchased does not comply with the seller's warranty, and the sale is rescinded, and the article returned to and accepted by the seller. B. B. B. AMERICAN RAILWAY EXPRESS COMPANY, Appt., V. MRS. EULALIE WRIGHT. Mississippi Supreme Court (In Banc) — April 10, 1922. (128 Miss. 593, 91 So. 342.) Master and servant-loss of package left with servant-liability. 1. Where a person went to the office of an express company for the purpose of shipping two express packages, and was requested by the servant of the express company to wait until the agent in charge of the office came back to see whether or not the packages were properly wrapped, whereupon the person requested the employee to be allowed to leave a fur and umbrella in the office until her return, which permission was granted, and upon her return perfected the shipping of the two packages by express, and asked the employee for her fur and umbrella, and was given the umbrella and told that she had not left the fur there, when she left the office and later returned and asked again for the fur, and was then insulted and abused by the servant of the express company, in a suit for actual damages for the value of the fur and for punitory damages, held, that the leaving of the fur in the office was not a part of the master's Headnotes by SYKES, J. business, that it was not within the real or apparent scope of the authority of the employee to allow it to be left there, and that the alleged abusive and insulting language was not used when the person was in the office transacting her business with the express company; under this state of facts a peremptory instruction in favor of the express company should have been given. [See note on this question beginning on page 131.] Definition "express company." 2. An "express company" is a firm or corporation engaged in the business of transporting parcels or other movable property in the capacity of a common carrier. [4 R. C. L. 556, 557; 1 R. C. L. Supp. 1163.] ant which are outside of the line of duty of the servant. [See 18 R. C. L. 793 et seq.; 3 R. C. L. Supp. 849.] -insult to customer master's 5. When the plaintiff had completed the sending of the express packages, and left the office, and returned at a later period and demanded the return of her fur from the employee of the express company, whereupon the employee abused and insulted her, at this time her business with the master had been completed, and her return to the office was upon her private business, disconnected from her business with the company, and the altercation did not arise during the transaction of the master's business, for which the master is not responsible. [See 18 R. C. L. 793 et seq.; 3 R. C. L. Supp. 848.] APPEAL by defendant from a judgment of the Circuit Court for Sunflower County (Davis, J.) in favor of plaintiff in an action brought to recover damages for the loss of her furs alleged to have been left with a servant of the defendant company, and for mistreatment and abuse by the servant. Reversed. The facts are stated in the opinion Messrs. Moody & Williams, for appellant: Defendant's servant had no authority to bind the company, as bailee or otherwise, for the care of the furs. 10 .C. J. 216, 228; Alabama & V. R. Co. v. McAfee, 71 Miss. 73, 14 So. 260; Alabama G. S. R. Co. v. Harris, 71 Miss. 74, 14 So. 263; Illinois C. R. Co. v. Latham, 72 Miss. 32, 16 So. 757; Andrews v. Yazoo & M. Valley R. Co. 86 Miss. 129, 38 So. 773, 18 Am. Neg. Rep. 525. Defendant was not an insurer of the fur. 3 R. C. L. 93; Archer v. Sinclair, 49 Miss. 346; Caldwell v. Hall, 60 Miss. 330, 45 Am. Rep. 410, 1 Am. Neg. Cas. 803; Scarborough v. Webb, 59 Miss. 449; Batesville Gin Co. v. Whitten, 96 Miss. 210, 50 So. 695; Meridian of the court. Fair & Exposition Asso. v. North Birmingham Street R. Co. 70 Miss. 808, 12 So. 555. In the case of gratuitous bailees. which is the most that can be claimed on the part of the appellee, the bailor must show gross negligence before there is any liability on the part of the bailee. Foster v. Essex Bank, 17 Mass. 479, 9 Am. Dec. 168, 1 Am. Neg. Cas. 502; Lloyd v. West Branch Bank, 15 Pa. 172, 53 Am. Dec. 581, 1 Am. Neg. Cas. 574; Gerrish v. Muskegon Sav. Bank. 138 Mich. 46, 100 N. W. 1000, 4 Ann. Cas. 1083, 17 Am. Neg. Rep. 81; Cheshire v. Bailey [1905] 1 K. B. 237, 4 B. R. C. 553, 74 L. J. K. B. N. S. 176, 53 Week. Rep. 322, 92 L. T. N. S. 142, 21 Times L. R. 130, 1 Ann. Cas. 94; (128 Miss. 593, 91 So. 842.) Alabama & V. R. Co. v. Harz, 88 Miss. 681, 42 So. 201. A master is not liable for the act of his servant unless it was done for the purpose, and as a means, of doing what he was employed to do. Goodloe v. Memphis & C. R. Co. 107 Ala. 233, 29 L.R.A. 729, 54 Am. St. Rep. 67, 18 So. 166. Mr. Frank E. Everett, for appellee: Defendant was liable for the mistreatment of plaintiff by its serv ant. Yazoo & M. Valley R. Co. v. May, 104 Miss. 422, 44 L.R.A. (N.S.) 1138, 61 So. 449; Yazoo & M. Valley R. Co. v. Mattingly, Miss., 37 So. 709; Barmore v. Vicksburg, S. & P. R. Co. 85 Miss. 441, 70 L.R.A. 627, 38 So. 210, 3 Ann. Cas. 594; Richberger v. American Exp. Co. 73 Miss. 171, 31 L.R.A. 390, 55 Am. St. Rep. 522, 18 So. 922. If the fur was left by permission of the agent of defendant only as a gratuitous bailee, it would be liable. 3 R. C. L. 92; Jenkins v. Bacon, 111 Mass. 373, 15 Am. Rep. 33, 1 Am. Neg. Cas. 781; Robinson v. Threadgill, 35 N. C. (13 Ired. L.) 39; Rutgers v. Lucet, 2 Johns. Cas. 92; Smedes v. Bank of Utica, 20 Johns. 373; 1 Parsons, Contr. 5th ed. 447; 2 Parsons, Contr. 99; 1 Chitty, Contr. 10th Am. ed. 38-40; Kowing v. Manly, 49 N. Y. 192, 10 Am. Rep. 346; Stewart v. Frazier, 5 Ala. 114; Batesville Gin Co. v. Whitten, 96 Miss. 210, 50 So. 695. The principal is liable for acts. committed by the agent while about his master's business. House v. Davis, 124 Miss. 485, 86 So. 849. Sykes, J., delivered the opinion of the court: The appellee sued the appellant express company for actual and punitory damages growing out of the following state of facts as testified to by appellee (plaintiff): On or about the 12th day of May, 1920, the appellee wished to send two packages by express over the line of the appellant company. She went to the office of this company in Shaw, Mississippi, and there found in charge of the office the wife of the agent of the express company, who was also an employee of the company. When she tendered the 23 A.L.R.-9. packages for shipment to this employee, she was told that it might be necessary for them to be rewrapped, and she would prefer to wait until her husband came in before accepting them. The appellee then asked her if she might leave her fur and umbrella in the office for a few minutes while she went to the postoffice, and was told that she could. She then left the two packages she desired shipped, her fur, and umbrella upon a counter in the office and went out. As she was leaving the office she looked back, either through the door or window, and saw this employee pick up her fur. In a few minutes she returned to the office and found that the agent had returned. Whereupon she was issued a receipt for the two packages she wished to send by express. She inquired for her fur and umbrella, and was told by the woman employee that she did not leave her fur, but was given her umbrella. She then left the office and came back twice more within a short time, making inquiry for the fur on each of these trips. Upon the last trip she stated that when she asked for the fur the lady employee of the express company abused and mistreated her. She testified that the value of the fur was $450. Without setting forth in detail the testimony introduced on behalf of the appellant (defendant in the lower court), it is sufficient to say that there was a material conflict in the testimony as to whether or not the fur was left in the office of the appellant company, and as to whether or not this employee abused and mistreated the appellee (plaintiff). The case was submitted to the jury, and a verdict for $900 was returned in favor of the plaintiff, upon which verdict a judgment in accordance therewith was entered by the court, and from which judgment this appeal is here prosecuted. At the conclusion of the introduction of the testimony for the plaintiff in the court below, the defendant made a motion to exclude the testimony, and for a peremptory instruction. At the conclusion of all the testimony for both sides a peremptory instruction was asked and refused for the defendant. There was also introduced by the defendant a rule of the defendant company under which rule agents and employees are forbidden to receive for safe-keeping any matter which has no relation to the business of the company, or to transact in the company's name any business that does not pertain to the express and forwarding business. It was shown that a copy of this rule is in the hands of all of the agents of the defendant company. While there are several assignments of error, it is only necessary for us to deal with the question of whether or not the defendant in the lower court was entitled to peremptory instruction. Under § 195 of the Constitution, an express company in this state is made a common carrier in its respective line of business, and subject to liability as such. A very good definition of an express company is: "A firm or corporation (usually a corporation) engaged in the business of transporting parcels Definition-"ex or other movable press company," property, in the capacity of common cariers, and especially undertaking the safe carriage and speedy delivery of small but valuable packages of goods and money." See Alsop v. Southern Exp. Co. 104 N. C. 278, 6 L.R.A. 271, 10 S. E. 297. It is a well-known fact that practically every town within the United States has within it the office of some express company for the transmission of packages. The business of an express company is well known and understood throughout the entire United States. It is well known and understood that its business is the transmission and delivery of packages, for which it re ceives a compensation. It is in no sense of the word Warehouseman engaged in the busi- -express comness of a ware pany as. houseman, or bailee for hire, though it is possible in some instances, where packages intended for transmission are temporarily left in the office before the contract of transmission is consummated, that as to them the relation of bailor and bailee may arise. In the case at bar the plaintiff went to the office of the express company to send two express packages, and as a matter of fact these packages were finally accepted for transmission by the company. She did not go there, however, to send either her umbrella or fur by express; she merely took these articles with her. For her own convenience, before she had finished her business of sending the two packages by express, she asked and was granted permission by this employee to leave her fur and umbrella upon the counter in the office of the defendant company while she went elsewhere. Her business with the express company was to send the two packages by express. Leaving her fur and umbrella in the office of the company was no part of her business transaction with the company. It was not within the real or apparent scope of this employee's business to make the express company a gratuitous bailee of this fur and umbrella. The leaving of the fur and umbrella was a private matter wholly between the plaintiff and the employee of the express company in her individual capacity, and in no sense was she acting in this matter for the express company, but her act was plainly outside of her line of duty as an employee of the company. The authorities in this state, as well as elsewhere, are practically unanimous that the master is not responsible for Master and servthe acts of his servant-liability for ant which are “outside the line of duty of the servant." Richberger v. American Exp. Co. 73 act of servant. (128 Miss. 593, 91 So. 342.) Miss. 170, 31 L.R.A. 390, 55 Am. St. In the language of this court in the case of Alabama & V. R. Co. v. McAfee, 71 Miss. 70, 14 So. 260: "The whole thing was an unauthorized arrangement to suit the views of the participants, and not to serve the company, and it is not responsible for what happened by design or accident." See also Illinois C. R. Co. v. Latham, 72 Miss. 34, 16 So. 757; Southern Exp. Co. v. Fitzner, 59 Miss. 581, 42 Am. Rep. 379. Neither is the express company liable for damages for any abusive or insulting conduct of this lady employee to the appellee. At the time this altercation is alleged to have taken place the appellee was not in the office of the company to transact business with the company. business with the company had been completed on her second visit to this office. Her last trip to the office was made solely for the pur Her business. pose of transacting her private In this case the express company ant-liability. re its employee toward the plaintiff. The peremptory instruction quested by the plaintiff should have been given. The judgment of the lower court is reversed, and judgment will be entered here for the appellant. Reversed, and judgment here for appellant. ANNOTATION. Liability of employer growing out of unauthorized act of employee in taking charge of property as accommodation. The few cases which have passed on the question hold that an employer is not liable for the loss of property which his employee, without authority, assumes to take care of at his place of employment as a favor to a patron of the employer's business. In the reported case (AMERICAN R. EXP. Co. v. WRIGHT, ante, 127) i appeared that a woman went to an express office to send a package, and was told to return later because the agent in charge was absent. She requested permission to leave her fur at the office until her return, and was given permission to do so. On her return, the fur could not be found. It is held that such an accommodation was outside the scope of the employment of the person in charge of the office, and that the company was not liable. In Chesley v. Woods Motor Vehi cle Co. (1909) 147 Ill. App. 588, the facts were stated as follows: "Plaintiff prosecuted his employment by traveling around Chicago in an automobile of his employer, which was kept at the garage of defendant. It seems that plaintiff had a case of samples, which he carried with him in his daily journeyings, and was in the habit of giving the sample case at night to the porter of defendant, who received and cared for the automobile, and who placed such sample case in the garage office. Plaintiff received the sample case from the porter each morning when he called for the automobile. On or about February 1, 1906, plaintiff took the automobile to be repaired and left his sample case with the defendant's porter, saying to him that he would return for it later. Plaintiff did not call for his sample case until more |