22 S.W. 488 (Mo. 1893), Brill v. Eddy,

Citation:22 S.W. 488, 115 Mo. 596
Opinion Judge:Black, P. J.
Party Name:Brill v. Eddy, et al., Appellants
Attorney:Jackson & Montgomery for appellants. W. S. Shirk and Sangree & Lamm for respondent.
Judge Panel:Black, P. J. Barclay, J., absent.
Case Date:May 08, 1893
Court:Supreme Court of Missouri
 
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Page 488

22 S.W. 488 (Mo. 1893)

115 Mo. 596

Brill

v.

Eddy, et al., Appellants

Supreme Court of Missouri, First Division

May 8, 1893

Appeal from Pettis Circuit Court. -- Hon. Richard Field, Judge.

Affirmed.

Jackson & Montgomery for appellants.

(1) Even if McMahan had been guilty of any negligence at the time and place complained of, the defendants cannot be held liable therefor, because McMahan was a special policeman and not the servant of defendants, and his alleged acts were not in the line of any duty as a servant of the defendants. Farber v. Railroad, 32 Mo.App. 378; Tolchester Beach Improvement Co. v. Steinmeier, 20 A. 188; Thornton v. Railroad, 42 Mo.App. 58; 2 Wood's Railway Law, p. 1212; Carter v. Machine Co., 51 Md. 290. He was a de facto officer, and, so far as this case is concerned, his acts had the same effect as though he had been regularly confirmed. 1 Dillon on Municipal Corporations, sec. 215 and note; note to secs. 22 and 256, and sec. 276 and note; 2 Dillon on Municipal Corporations, note to sec. 892 on page 1079. (2) The court erred in permitting the plaintiff to amend his petition after the evidence was in, for the reason that the amendment made changed the cause of action. (3) The court erred in excluding evidence offered by defendants. (4) The plaintiff was a trespasser, and his injury was the result of his trespass and of his own negligence contributing thereto, and for that reason was not entitled to recover. Notwithstanding his minority, the plaintiff by his evidence, showed himself to be of such mental capacity, and to have such an understanding of his conduct and its probable effect, as to render such conduct negligent, and to make him responsible for the same. Hughes v. Railroad, 66 Mo. 325; Turner v. Thomas, 71 Mo. 596; Donoho v. Iron Works, 75 Mo. 401; Duffy v. Railroad, 19 Mo.App. 380; Williams v. Railroad, 96 Mo. 275; Eswin v. Railroad, 96 Mo. 290; Schmidt v. Distilling Co. 90 Mo. 284.

W. S. Shirk and Sangree & Lamm for respondent.

(1) McMahan was the servant of defendants. First. They selected him, they paid him, they controlled him, they prescribed his duties and these duties pertained to their property and benefit and interests, and he was subject to discharge by them. Hence, by every recognized and controlling test and definition, the relation of master and servant existed. Bishop on Non-Contract Law, sec. 599; Sproul v. Hemingway, 14 Pick. 1; Wood's Master and Servant, secs. 1, 317 and note 1, 539; Laugher v. Pointer, 5 B. and C., 547; Cooley on Torts, 531; 1 Parsons on Contracts, 101; 1 Lawson's Rights, Remedies and Practice, sec. 294 and cases cited under notes 1 and 2; Mound City, etc. Co. v. Conlon, 92 Mo. 221. Second. Even if McMahan was a de facto policeman with power to make arrests (which is not at all conceded), yet being in the employ and under the direction and subject to the control and interference of defendants, his services being rendered to them and his duties defined by them, he became thereby their servant and was in no just and accurate sense an independent officer. A police officer may be a civil agent. Gerhardt v. Savings Institution, 38 Mo. 60; Daily v. Bank, 56 Mo. 102; Walker v. Railroad, 39 L. J. C. P., 346; Goff v. Railroad, 3 Ellis & Ellis 672; Wood on Master and Servant, p. 542; Collett v. Foster, 2 Hurl. & N. 356; Bagley v. Railroad, L. R., 7 C. P., 415; Wood on Master and Servant, sec. 459, p. 553; Railroad v. McKee, 99 Ind. 519; Lynch v. Railroad, 90 N.Y. 86; Harris v. Railroad, 35 F. 116; Yates v. Brown, 8 Pick. 23; Patterson's Railway Accident Law, p. 110; Jardine v. Cornell, 14 A. 590; Edwards v. Railroad, 1 American and English Railroad Cases, 571; Griffin v. Railroad, 148 Mass. 143. (2) The acts complained of were within the scope of the employment of McMahan as the servant of defendants and in the line of his prescribed duties while he was about his master's business and furthering his master's ends, and, hence the rule of respondeat superior applies. Whether the master directly authorizes the act or not, or was or was not privy thereto, if he places his agent...

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