Action by Frank Maniaci against the Interurban Express Company. From a judgment for defendant rendered after sustaining a demurrer to the petition, plaintiff appeals. Reversed and remanded, with directions.
The above action was commenced in the circuit court aforesaid on March 16, 1912; and afterwards on the 18th day of October, 1912, and during the October term of said court, an amended petition in two counts was filed in said cause, which, without caption and signatures, reads as follows:
"Plaintiff states that defendant is and was at all times hereinafter mentioned a corporation duly incorporated under the laws of the state of Illinois and doing business in the state of Missouri; that on and about the 1st day of February, 1911, defendant was engaged in and carrying on an express business as a common carrier of freight; that defendant had and maintained an office in the city of Edwardsville, Ill.; that said office was in charge of one Harry Joiner, who was the agent and servant of defendant; that plaintiff was at said time a merchant in said city of Edwardsville; that several days previous to the said 1st day of February, 1911, defendant in its capacity as a common carrier delivered to plaintiff a consignment of fruit, and plaintiff refused to sign a receipt for same until the said Harry Joiner, the agent and servant of defendant, had agreed to present plaintiff's claim for an allowance for a shortage in the consignment; that upon the said 1st day of February, 1911, the said Harry Joiner, defendant's agent and servant, telephoned to plaintiff to come to the office of defendant for the purpose of discussing a settlement of the matter, and, in response to said message, plaintiff started to defendant's office as requested by defendant's servant; that near the office plaintiff met defendant's servant, the said Joiner, who demanded that plaintiff then and there sign a receipt for the said consignment of fruit; that plaintiff under protest started to comply with said demand, and was in the very act of signing the receipt when the said Harry Joiner, being at the time the employé, agent, and servant of the defendant company, and acting within the scope of his employment as such agent and servant, did suddenly and without warning draw a pistol and without just cause or provocation wantonly, maliciously, and unlawfully shoot plaintiff twice, wounding him in the breast and shoulder.
"Plaintiff states that, as a direct result of said injuries and assault, he suffered great bodily and mental pain, and was confined to a hospital by reason thereof for a long period of time, to wit, for the period of about one month, and thereafter was confined at his home to his bed and room for the period of about one month; that by reason of said injuries he was disabled and prevented from attending to his business and affairs for the space of about seven months; that he has suffered, and will continue to suffer, great bodily pain, annoyance, inconvenience, and expense; that as a direct result of said injuries and assault he was compelled to procure, and did procure, necessary medical attention and treatment, which were then necessary, and still are, and will continue to be, necessary for an indefinite period; and that on account of said services alone he has been put to the expense of about the sum of $300.
"Plaintiff states that, by virtue of the premises, he has been injured and damaged in body, mind, health, pain, and suffering, and loss of time and necessary expenses, in the sum of $10,000 actual damages, and $10,000 punitive damages, for both of which amounts, together with the costs in this behalf expended, plaintiff prays judgment.
"2. For a second cause of action, plaintiff states that defendant is, and was at all times hereinafter mentioned, a corporation duly incorporated under the laws of the state of Illinois and doing business in the state of Missouri; that defendant on or about the 1st day of February, 1911, was engaged in the express business and was acting as a common carrier of freight; that for the purposes of its business
it maintained an office in the city of Edwardsville, Ill.; that defendant had as an agent and servant in charge and control of said office one Harry Joiner; that said Harry Joiner was a person of violent temper, quarrelsome disposition, and without control over his passions; that said Harry Joiner was a dangerous and unfit person to place in such a position; that said Joiner's dangerous and unfit character and disposition were well known to defendant; that on and previous to said 1st day of February, 1911, plaintiff was engaged in the city of Edwardsville, Ill.; that a dispute having arisen between plaintiff and defendant's servant and said Joiner, because plaintiff refused to sign a receipt of a consignment of fruit delivered to him by defendant, said Harry Joiner upon February 1, 1911, telephoned to plaintiff to come to the office of defendant in the city of Edwardsville; that plaintiff, in response to said request, started to said office, and when near there was intercepted by said Joiner, who demanded that plaintiff immediately sign a receipt for the said consignment of fruit; that plaintiff, under protest, started to sign said receipt, and, while he was so engaged, the said Joiner, the agent and servant of said defendant, acting within the scope of his employment as such agent and servant, did suddenly and without warning give way to a fit of passion and draw a pistol and without just cause or provocation wantonly, willfully, maliciously, and unlawfully shoot plaintiff twice, wounding him in and about the left breast and left shoulder.
"Plaintiff states that, as a direct result of said injuries and assault, he suffered great bodily and mental pain, and was confined to a hospital by reason thereof for a long period of time, to wit, for the period of about one month, and thereafter was confined at his home to his bed and room for the period of about one month: that by reason of said injuries he was disabled and prevented from attending to his business and affairs for the space of about seven months; that he suffered, and will continue to suffer, great bodily pain, annoyance, inconvenience, and expense; that, as a direct result of said injuries and assault, he was compelled to procure, and did procure, necessary medical attention and service and treatment, which were then necessary and still are and will continue to be necessary for an indefinite period; and that on account of said services alone he has been put to the expense of about the sum of $300.
"Plaintiff states that by virtue of the premises he has been injured and damaged in body, mind, health, pain, and suffering, and loss of time and necessary expenses in the sum of $10,000 actual damages, and $10,000 punitive damages, for both of which amounts, together with the costs in this behalf expended, plaintiff prays judgment."
On October 21, 1912, respondent filed a demurrer to each count of said amended petition, which said demurrer, without caption and signature, reads as follows:
"(1) Now comes defendant and demurs to the first count of the plaintiff's amended petition on the ground that said count of said amended petition does not state facts sufficient to constitute a cause of action.
"(2) And defendant comes and demurs to the second count of plaintiff's amended petition on the ground that said count of the said amended petition does not state facts sufficient to constitute a cause of action."
At the December term, 1912, and on January 3, 1913, of said term, the demurrer aforesaid was sustained. On January 31, 1913, during said term, plaintiff declined to plead further, and final judgment was rendered on said date, and the cause was duly appealed to this court.
George H. Moore and Frank A. Thompson, both of St. Louis, for appellant. H. R. Small, of St. Louis (Fred Tecklenburg, of Belleville, Ill., of counsel), for respondent.
First Count of Amended Petition.
RAILEY, C. (after stating the facts as above).
Does this count contain facts sufficient at law to constitute a cause of action against defendant?
Turning to the amended petition, and analyzing same, we find that in substance it alleges the following facts: (1) That defendant is a corporation, organized under the laws of Illinois, and doing business in the state of Missouri; (2) that on or about February 1, 1911, defendant was engaged in the express business as a common carrier of freight; (3) that it had and maintained an office in the city of Edwardsville, Ill.; (4) that said office was in charge of one Harry Joiner, who was at the time agent and servant of defendant; (5) that plaintiff was at said time a merchant in said city of Edwardsville; (6) that several days prior to February 1, 1911, defendant in its capacity as a common carrier delivered to plaintiff a consignment of fruit, and the latter refused to sign a receipt therefor, until said Harry Joiner, the agent and servant of defendant aforesaid, had agreed to present plaintiff's claim for a shortage allowance in the consignment; (7) that upon said 1st day of February, 1911, said Harry Joiner, defendant's agent and servant, telephoned plaintiff to come to the office of defendant for the purpose of discussing a settlement of the matter; (8) that in response to said message plaintiff started to defendant's office as requested by defendant's servant; (9) that near the office plaintiff met defendant's servant, the said Joiner, who demanded that plaintiff then and there sign a receipt for the said consignment of fruit; (10) that plaintiff under protest started to comply with said demand, and was in the very act of signing the receipt, when said Harry Joiner, being at the time an employé, agent, and servant of defendant, and acting...
