Milton v. Missouri Pacific Railway Company

Decision Date24 January 1906
PartiesHARRY E. MILTON v. MISSOURI PACIFIC RAILWAY COMPANY, Appellant
CourtMissouri Supreme Court

Appeal from Clay Circuit Court. -- Hon. E. J. Broaddus, Judge.

Reversed.

Elijah Robinson for appellant.

(1) Neither Furlong nor any one acting under him had any authority to make arrests or cause arrests to be made; and the defendant's demurrer to the evidence should therefore have been sustained. Fire Ass'n v. Fleming, 78 Ga. 734; Pinkerton v. Gilbert, 22 Ill.App. 568; Railroad v. Epperson, 26 Ill.App. 79; Travis v Ins. Co., 86 Mich. 288; Flora v. Russell, 136 Ind. 153; Stevenson v. Railroad, 93 Cal. 558; Stone v. Hills, 45 Conn. 44; Railroad v Douglass, 69 Miss. 723; Ritchie v. Waller, 63 Conn. 158; Merritt v. Hepenstal, 25 Can. S. C. 150; Smith v. Railroad, 78 Hun 524; Georgia R. & B Co. v. Wood, 94 Ga. 124; Marli v. Lord, 39 N.Y. 381; Railroad v. Harrison, 48 Miss. 112; Gilliam v. Railroad, 70 Ala. 268; Flower v. Railroad, 68 Pa. 210; Graham v. Railroad, 47 La. Ann. 1656; Dyer v. Rieley, 28 La. Ann. 6; Walton v. Car. Co., 139 Mass. 556; Ryan v. Railroad, 1 Jones & S. 139; Wilpse v. Bridge Co., 63 Mich. 639; Baker v. Kinsey, 38 Cal. 631; Keating v. Railroad, 97 Mich. 154; Golden v. Newbrand, 52 Ia. 59; Goodloe v. Railroad, 107 Ala. 233; McCauley v. F. & C. Co., 38 N.Y. 773; Smith v. Spitz, 156 Mass. 319; Marsh v. S. C. Co., 56 Ga. 274; Mulligan v. Railroad, 129 N.Y. 506; McKenzie v. McLeod, 10 Bing. 385; Goodman v. Kennell, 3 Car. & P. 167; Porter v. Railroad, 41 Ia. 358; Fairchild v. Railroad, 60 Miss. 931. In order to render the master liable for the negligent or tortious act of his servant, the act of the servant must be done in the course of his employment. It must pertain to the duties which he was employed to perform. Jones v. Packet Co., 43 Mo.App. 398; Farber v. Railroad, 32 Mo.App. 378; McKeon v. Railroad, 42 Mo. 83; Snyder v. Railroad, 60 Mo. 419; Jackson v. Railroad, 87 Mo. 30; Walker v. Railroad, 121 Mo. 575; Burger v. Railroad, 123 Mo. 679. The master himself has a right to determine, and assign to his servants their duties, and no assumption by a servant of duties not assigned to him will bring those duties in the course of his employment, as defined by the master. Sherman v. Railroad, 72 Mo. 62; Cunningham v. Railroad, 31 Upper Can. Q. B. 350; Railroad v. Keighron, 74 Pa. 316; Marion v. Railroad, 59 Ia. 428. (2) Defendant's superintendent employed Furlong to procure information as to the robbery and report the same to him. Furlong was engaged in an independent employment, and the defendant had no right or power to control his means or manner of accomplishing the result. In these matters he was entirely independent of the defendant, and it can not be held liable for any act of his or any act of anyone employed by him in the performance of the work. For this reason also the demurrer should have been sustained. Mechem on Agency, sec. 747; Burns v. McDonald, 57 Mo.App. 559.

Frank P. Walsh, Wm. H. Wallace and T. B. Wallace for respondent.

(1) Neither malice nor want of probable cause need be proven to support an action for false imprisonment. Arrest and imprisonment without process of law is the ground of the action. Boeger v. Langenberg, 97 Mo. 390; Ahern v. Collins, 39 Mo. 149. (2) Any person who is present at the commission of a trespass of this character, aiding, abetting, encouraging or countenancing the act is liable. Cooper v. Johnson, 81 Mo. 483; McMannus v. Lee, 43 Mo. 208; Carson v. De Sau, 142 N.Y. 445. (3) The Furlong Detective Agency was employed by the defendant railway company to find out who committed the robbery. They were instructed to come up to Kansas City to work on the case and report to the general manager of the Missouri Pacific Railway. The detective agency detailed Harbaugh for this work. In an attempt to accomplish the purpose for which he was employed -- to discover who the robbers were -- he had Milton imprisoned. This makes the company liable for his act, notwithstanding that he may have been instructed not to cause any arrests to be made. Garretzen v. Duenckel, 50 Mo. 104; Palmeri v. Railroad, 133 N.Y. 262; Wheeler & Wilson Co. v. Boyce, 36 Kas. 354; Cameron v. Express Co., 48 Mo.App. 99; Forbes v. Railroad, 116 Mo. 92; Story on Agency (9 Ed.), sec. 452; State ex inf. v. Ins. Co., 152 Mo. 38; Milton v. Railroad, 107 Mass. 108; Singer Mfg. Co. v. Rahn, 132 U.S. 518; Railroad v. Bayfield, 37 Mich; Hill v. Morey, 26 Vt. 178; Renick v. Bentley, 90 Wis. 457; Postal Tel. Co. v. Brantley, 107 Ala. 683; Fitzsimmons v. Railroad, 98 Mich. 257; Borden v. Felsh, 109 Mass. 154; McClung v. Dearborne, 134 Pa. 396; Railroad v. Kirk, 102 Ind. 399; Ochenheim v. Shapley, 85 N.Y. 217. Garretzen v. Duenckel, 50 Mo. 104, is the best case to be found in any of the books upon this question, and has been oftener and more generally cited than any other case on the subject, not only in this State, but in other States. In addition to being a model case to illustrate the principle, the opinion is unusually clear and contains an excellent review of the authorities. In that case the plaintiff was injured by the careless discharge of a gun in a gun store. The defendant's salesman had been instructed by defendant, the proprietor, not to load guns in the store, but at the request of a customer and in order to make a sale, he violated the instructions of his principal and loaded the gun, when it was discharged and the plaintiff injured. The principal was held liable. This case is precisely like the one before the court. The detective agency was employed to discover evidence as to the robbery, find out who committed the robbery. In order to accomplish this purpose they imprisoned Milton, and, as said by Judge Wagner, it makes no difference that private instructions were disobeyed. See, also, State ex inf. v. Ins. Co., 152 Mo. 38; Story on Agency (9 Ed.), sec. 452. (4) Something is said in the brief of the appellant about the detective agency exercising an independent employment. But this is not the case where an independent contractor is engaged to perform and complete a specified piece of work for a total price, according to a specified plan, using his own means and material. The detective agency was distinctively an agent and not a contractor. Everything the agency did was done for the railroad company and not for itself. It was paid for the work done by it whether anything was discovered or not, the bills being made out and paid monthly. Nor is it true, as stated by the appellant, that the defendant had no control of the work the detective agency was employed to perform. Furlong, the superintendent of the agency, was instructed by Clark, the general superintendent of the railroad company, to report to him from time to time, and Furlong made reports both orally and by letter. The true test in these cases is the right of the employer to control the manner and means of doing the work. Mound City Paint Co. v. Conlon, 92 Mo. 229; Speed v. Railroad, 71 Mo. 303; Singer Mfg. Co. v. Rahn, 132 U.S. 523. The right of control on the part of the employer will make the person employed a servant or agent, even where he exercises an independent employment and undertakes to do the work by the job. Borg v. Bansfield, 65 Minn. 355; Tutrix v. Sellers, 39 La. Ann. 1011.

MARSHALL, J. Brace, C. J., Gantt, Burgess, Fox and Lamm, JJ., concur; Valliant, J., dissents.

OPINION

In Banc

MARSHALL J. --

This is an action for false imprisonment. The plaintiff recovered a judgment for $ 10,000 in the circuit court of Clay county, and the defendant appealed.

The petition alleges that on the 4th of October, 1898, the defendant, acting through its agents and servants, and through certain detectives and officers from Missouri and Kansas, did without any warrant or other legal process, and without probable cause, falsely, wantonly, maliciously, illegally and unlawfully imprison plaintiff in a certain jail in the western part of Kansas City, Missouri; did keep him there for about four days and nights, and denied him access to his relatives and friends and the benefit of counsel, for which the plaintiff claimed $ 15,000 compensatory damages and $ 15,000 punitive damages.

The answer is a general denial.

The case made is this:

On the 23rd of September, 1898, one of the defendant's passenger trains was held up and robbed near Leeds, in the southern part of Kansas City. A day or two afterwards H. G. Clark, the defendant's general superintendent, sent for Thomas Furlong, the president of the Furlong Secret Service Company, a corporation, engaged in the detective business, and when Furlong arrived Clark said to him: "I suppose you have read and heard about this train robbery up near Kansas City?" He said: "Yes, sir." Clark then said: "I want you to go up there and find out who committed this robbery and report."

Furlong states the matter in this way: "Mr. Clark said a train had been held up at Leeds the night before and that he wished that I would go up there and ascertain the facts pertaining to the robbery, if I could, as to who the parties were that held up the train."

The foregoing is all the evidence in the case as to the employment of Furlong by the defendant, and that evidence was adduced by the plaintiff; accordingly Furlong went to Kansas City, and had two of his employees, Dickson and Harbaugh, to go there also.

Prior to Furlong's reaching Kansas City, John Hays, the chief of the police department of that city, with his detectives force, had been investigating the matter, and had obtained information that convinced them that one Lowe was implicated therein, but they had been unable to locate him. After Harbaugh's arrival, he succeeded in finding him, and he was arrested by the police department...

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