Adams v. St. Louis-San Francisco Ry. Co.

• Decision Date: 10 May 1923
• Docket Number: No. 3142.,3142.
• Citation: 251 S.W. 124
• Parties: ADAMS v. ST. LOUIS-SAN FRANCISCO RY. CO.
• Court: Missouri Court of Appeals

251 S.W. 124

ADAMS v. ST. LOUIS-SAN FRANCISCO RY. CO.

No. 3142.

Springfield Court of Appeals. Missouri.

May 10, 1923.

Appeal from Circuit Court, Phelps County; L. B. Woodside, Judge.

Action by Harry Adams, by next friend, against the St. Louis-San Francisco Railway Company. From judgment for plaintiff, defendant appeals. Affirmed on condition of remittitur.

W. T. Evans and E. T. Miller, both of St. Louis, Mann & Mann, of Springfield, and Frank Farris, of Rolla, for appellant.

S. N. Lorts and Crites, both of Rolla, for respondent.

COX, P. J.

Action for damages for personal. Injuries caused by an assault upon plaintiff by a servant of defendant. Judgment for plaintiff for $5,000, and defendant appealed.

The plaintiff sued by next friend, and defendant contends the judgment should be reversed because the next friend was not properly appointee . The petition alleged that the next friend I ad been appointed by the court, while in fact he was appointed by the clerk of the court in vacation, and appellant insists that this if a fatal variance. We do not think that contention sound, and rule that point against appellant.

The application for the appointment of a next friend, his consent to act, and the order of the clerk making the appointment were lost. The court heard evidence and permitted these papers to be supplied by filing copies thereof. The evidence was sufficient to sustain the court's action, and there is no question that the court had the inherent power to permit these papers to be supplied. St. L., C. G. & Ft. S. Ry. Co. v. Holloday, 131 Mo. 440, 33 S. W. 40.

The merits of this case rest upon the following facts: It was stipulated that James F. Cassidy was on the 29th and 30th days of July, 1921, in the employ of the defendant as a special officer, and that his duties were to "watch, guard, and police the yards, tracks, depots, trains, cars, and property of defendant and to protect same from trespassers as well as to watch, guard, and protect the merchandise, goods, and wares consigned and intrusted to the defendant for shipment as a common carrier." Plaintiff's testimony tended to show that Cassidy was watching tracks, trains, and property of defendant at Rolla, Moe on the night of July 20. 1921, and when a passenger train arrived from the east, and as he passed along the train, the plaintiff, who had been riding between the tender and the first coach, got off and said to Cassidy, "You are going on, are you?" supposing that Cassidy was heating his way on the train also; that Cassidy then took hold of plain.. tiff, and a scuffle ensued, and they moved some distance until they may have passed beyond the line of the right of way of defendant, though the distance they moved is not clearly shown. Plaintiff says that, while he was trying to get loose from Cassidy, Cassidy said he intended to find out who plaintiff was, and, while he was still trying to free himself from the grip of Cassidy, that Cassidy shot him twice, and caused the injuries of which complaint is made in this action. Defendant's evidence tended to show that the shooting was done in self-defense.

Appellant contends that the demurrer to the testimony should have been sustained because, if plaintiff's testimony be true, the act of Cassidy in shooting plaintiff was a felony, and hence the act could not be authorized by defendant nor could it be within the scope of his employment, and therefore defendant could not be held liable for Cassidy's act in shooting plaintiff.

The law is well settled in this state that, to hold the master liable for the trespass of the servant, the act of the servant must be performed while he is engaged in performing the service for which he was employed, and it must be done in...