American Railway Express Co. v. Hicks

• Decision Date: 09 March 1923
• Citation: American Railway Express Co. v. Hicks, 198 Ky. 549, 249 S.W. 342 (Ky. Ct. App. 1923)
• Parties: American Railway Express Company, et al. v. Hicks, et al.
• Court: Kentucky Court of Appeals

Page 549

198 Ky. 549

American Railway Express Company, et al. v. Hicks, et al.

Court of Appeals of Kentucky.

Decided March 9, 1923.

Appeal from Daviess Circuit Court.

SANDIDGE & SANDIDGE for appellants.

T. F. BIRKHEAD and BIRKHEAD & WILSON for appellees.

OPINION OF THE COURT BY JUDGE MOORMAN — Reversing.

E. B. and H. B. Hicks filed this action in the Daviess circuit court to recover $824.55 alleged to have been paid to the American Railway Express Company and J. K. Shannon while under duress. After several preliminary motions filed by defendants had been overruled, they filed answer denying the duress alleged and interposing the affirmative defenses: First, that the money was not paid to them but to Walker D. Hines, Director General of Railroads, in control of and operating the American Railway Express Company; and, second, that the payment was made in satisfaction of a liability due under the employment of H. B. Hicks by the Director General. A trial was had and judgment was rendered in favor of plaintiffs for the amount claimed. The defendants have prosecuted this appeal.

H. B. Hicks, one of the appellees, was employed as platform man, at Owensboro, Kentucky, as appellants claim by the Director General of Railroads but as appellees claim by the American Railway Express Company. On the evening of January 6, 1920, he received some valuable packages from a train arriving at Owensboro and receipted therefor to the train expressman. According to his testimony, he placed the packages in a desk drawer in the office of the express company and continued about his business. Lon Gough, who ordinarily received the valuables from that train, was detained at his home that evening on account of the illness of a member of his family. He came to the depot shortly after the train had gone and was notified by Hicks that the packages had been placed in the desk drawer. Hicks had previously resigned his employment, effective as of that date, and the following morning he began work at another place. About three o'clock that afternoon Gough discovered that the packages containing money had been lost. He at once crossed the street to the place where Hicks was working and asked him where the packages were. Hicks replied that he had left them in the desk drawer, and came back to the office with Gough, but they were unable to find the packages. Hicks denied any knowledge of their whereabouts. J. K. Shannon, superintendent of the express company, and J. P. McKeown, a special agent, came to Owensboro the following day to investigate the loss. They interviewed Hicks and his father several times, telling them that H. B. Hicks was responsible for the money and that they had interviewed the district attorney, who had advised them to issue a warrant, and intimating that if the money was not produced at a given hour the next day they would cause Hicks to be arrested. E. B. Hicks, the father of H. B. Hicks, raised the requisite amount of money and delivered it to J. K. Shannon, who gave him a receipt for it signed "American Railway Express Company by J. K. Shannon, Superintendent." The receipt purports to show that E. B. and H. B. Hicks felt it their personal duty to reimburse the express company for the loss resulting from negligence, and therefore paid the money in full satisfaction of that company's claim against E. B. Hicks.

The denial of appellants' motion to require appellees to elect as between the two causes of action set up in their petition as amended, and the overruling of the motion to make the petition more specific, are the first errors assigned. Both of these contentions rest on the ground that the petition does not allege that appellees jointly owned the $824.55, and it is argued that if they were not joint owners of the money and each of them contributed a part of it, then each had a separate cause of action for the amount contributed by him. The petition alleges that they paid the $824.55 under duress. The cause of action was for wrongful coercion resulting in their paying the money. There were not two causes of action, but one in which two persons were interested; and under section 22 of the Civil Code the two were properly joined as plaintiffs.

Neither was it error to overrule the motion to require appellees to make their petition more specific and to state how much each of them contributed to the sum total. It is undoubtedly true that if the money was wholly paid by one of them the other was not a proper party plaintiff. But the petition alleges that both of them were put in duress and by reason thereof were coerced into paying the money. It is said, however, that the proof shows that E. B. Hicks paid the entire amount, and that fact demonstrates the impropriety of the court's ruling on this motion. It may be conceded that it was improper to allow any recovery on behalf of H. B. Hicks, but it does not follow that the motion to make the petition more specific should have been sustained. That motion was determinable on the averments of the petition and not in the light of subsequent developments. The petition, as we have seen, stated a joint cause of action. Hence it was not error to overrule the motion.

It is earnestly insisted that reversible error was committed in sustaining demurrers to the amended answers, which set up the two affirmative defenses hereinbefore referred to. One of those defenses was that H. B. Hicks was personally liable for the loss of the packages, the liability emanating, as claimed by appellants, from his contract of employment, by which he obligated himself to pay the losses the American Railway Express Company sustained through his failure to perform his duties. It is argued that it was his duty to take a receipt for the packages from Gough, and, having failed to do so, he is liable for the loss of them and cannot recover, even though the money was paid under duress. It seems to be conceded that he was only required, under the terms of his employment, to exercise that degree of care that an ordinarily prudent person would use under like circumstances. Accepting that as the measure of his responsibility, it follows by no means that a proven case of negligence would defeat a recovery in this action. Indeed, in our opinion the extent of its availability was its effect on the contention that the payment was voluntarily made in settlement of a recognized liability — an issue otherwise made. Certainly it was no defense to the cause of action asserted in the petition.

The next question involves a consideration of the primary liability of appellants for the wrongful acts alleged in the petition. The amended answers aver in substance that both Hicks and Shannon were employees of the Director General of Railroads, who, at the time complained of, was in control of and directing the operations of the American Railway Express Company. A copy of the agreement of June 21, 1918, between the Director General of Railroads and the four major express companies of the United States was filed by appellants. Under that agreement the express companies caused to be organized a corporation known as the American Railway Express Company. On June 26, 1918, a contract was made between the Director General and the American Railway Express Company, by which the former employed the express...