American Railway Express Company v. Davis

• Decision Date: 27 February 1922
• Docket Number: 181
• Parties: AMERICAN RAILWAY EXPRESS COMPANY v. DAVIS
• Court: Arkansas Supreme Court

238 S.W. 50

152 Ark. 258

AMERICAN RAILWAY EXPRESS COMPANY v. DAVIS

No. 181

Supreme Court of Arkansas

February 27, 1922

Appeal from Little River Circuit Court, James S. Steel, Judge reversed.

Judgment reversed, and cause remanded.

Cottingham Hawes, Green & McInnis, and June R. Morrell, for appellant.

1. On appellant's petition the cause should have been removed to the Federal court. Both parties are non-residents of this State, the jurisdictional amount is involved, and there is a diversity of citizenship between the plaintiff and the defendant. 265 F. 715; 245 Id. 169; 251 Id. 337; 256 Id. 882; 261 Id. 697.

2. Appellant cannot properly be held liable, and the court should so have instructed the jury, if Garrison and Davis, at the time the injury was inflicted, were engaged, not in the service of the master, but in play or sport, since in that case, the act of Garrison in inflicting the injury was not within the scope of his employment. Neither can it be held liable if, while working for the appellant, these parties entered into a frolic or play, and Garrison, in order to bring the play to an end, pointed the pistol in fun to scare Davis and accidentally discharged the same and thereby injured and killed Davis. 115 Ky. 447, 74 S.W. 171; 84 Kan 19, 113 P. 386; 110 A. 540; Sherman & Redfield on Negligence, 6th Ed. by Street, § 148; Clark & Skyles on Law of Agency § 502; 2 Cooley on Torts, 3d Ed. by Lewis, § 627; Wood, Law of Master & Servant, 2d Ed., 585 § 307; Id. p. 586; 185 P. 694.

It was erroneous to instruct the jury to the effect that if the company placed the pistol with Garrison in connection with the performance of his duty, and the latter was carelessly and negligently handling the same, even though not in connection with the performance of any of the duties for which it had been placed with him, and the pistol was accidentally discharged and injured Davis, the company would be liable. 77 Ark. 606, 92 S.W. 861; 230 S.W. 598; 84 Ark. 193; 93 Id. 397; 111 Id. 208; 115 Id. 288; 132 Id. 282; 100 Tex. 136, 96 S.W. 1073.

3. There is no proof to sustain the allegations of the complaint that the servant, Garrison, was lacking in maturity of judgment, and that he was of a more than ordinarily playful and prankish nature and unsafe on that account. The evidence wholly fails to show negligence on the part of the company in this respect, or that it was the proximate cause of the injury. 91 Ark. 260; 120 S.W. 984; 255 F. 665; 92 Ark. 138; 122 S.W. 113.

Stephenson & Holloway and Reynolds & Steel, for appellee.

1. Garrison, as custodian of the pistol, a dangerous instrumentality, owed the same duty to Davis in using it, as he would in using it for the purpose for which it was placed with him by the company, and his default in that respect was the default of the master. Labatt, Master & Servant, § 2503; 8 L. R. A. 464; 60 L. R. A. 158; 56 L. R. A. 748 and cases cited; 70 L. R. A. 503; 85 Miss. 426 and cases cited. A pistol is a dangerous instrumentality. 18 R. C. L. 790; 70 L. R. A. 503; 10 L. R. A. (N. S.) 375, note; 110 Ark. 495.

2. The case was not removable to the Federal court. 51 Law. Ed. 264; 209 U.S. 440; 52 Law. Ed. 990; 219 U.S. 363; 55 Law. Ed. 252.

3. The right to maintain an action to recover for acts causing death or bodily injury is to be determined by the statutes and judicial decisions where the cause of action arose. 62 Ark. 254; 79 Id. 488; 82 Id. 96; 54 S.W. 865; 154 U.S. 190, 38 Law. Ed. 958.

4. The character and measure of damages recoverable in an action for tort are governed by the law of the State in which the cause of action arose, and not by the law of the forum. 5 R. C. L. 1041; 56 L. R. A. 312, note; 40 L. R. A. (N. S.) 1097; 50 Ark. 155; 154 U.S. 190; 38 Law. Ed. 958; 54 S.W. 865.

Under time Oklahoma decisions, where this case originated, a plaintiff may recover for damages that might be suffered beyond the majority of a minor child. 41 Okla. 454. See also, for construction of Oklahoma statutes adopted from Kansas, 86 P. 391; 6 L. R. A. (N. S.) 861; 48 L. R. A. (N. S.) 688, note, and Kansas cases there cited. See also 55 Okla. 287 and cases cited; 48 Ark. 833.

MCCULLOCH, C. J. SMITH, J. concurs. HUMPHREYS, J., dissenting.

OPINION

MCCULLOCH, C. J.

Elmer Davis, a boy 16 years old, the plaintiff's son, was shot and killed on the premises of the defendant express company at Hugo, Oklahoma, the shot being accidentally fired from a revolver in the hands of Clyde Garrison, one of the employees of the company. Elmer Davis was himself an employee of the company at that time. This is an action instituted in the circuit court of Little River County against the company by the next of kin of Elmer Davis to recover damages resulting to them from the loss of the services of said decedent.

It is alleged in the complaint that Garrison was employed by the company as station agent or money clerk at Hugo, and that he had been furnished with a pistol for use in the course of his employment to protect the money and other valuables of the company; that Elmer Davis was employed by the company to serve at said station of Hugo under the direction and supervision of Garrison, and that on May 9, 1920, Garrison, at a time when he was not required by his duties to use or handle said pistol, wrongfully and negligently did so handle the pistol as to cause it to be discharged, and that the load took effect in the body of Elmer Davis and inflicted a wound, from which he shortly thereafter died.

The complaint also contains an allegation that Garrison, on account of his youth and immature years, was lacking in judgment and proper understanding to discharge the duties of his position and to be the custodian of a deadly weapon, and that the company had knowledge of such immature judgment, and was guilty of negligence in putting the pistol in his possession and charge. There was no effort, however, to prove the charge that the company was guilty of negligence in employing an incompetent or negligent servant, and this feature of the case seems to have passed out in the trial below.

The company answered the complaint, denying any act of negligence on its part or on the part of its agent while in the discharge of his duty, and alleged that the accidental killing of young Davis occurred while Garrison was using the pistol for his own purposes, outside of and beyond the line of his duties.

The case was tried before a jury, and the verdict was in favor of the plaintiff for the recovery of damages in the sum of $ 15,000. The defendant in apt time presented its petition and bond for removal to the Federal court on account of diversity of citizenship. The court overruled this petition, and this ruling is the subject-matter of the first assignment of error, on this appeal. The case in that respect falls within the decision of the Supreme Court of the United States in Ex parte Wisner, 203 U.S. 449, 51 L.Ed. 264, 27 S.Ct. 150, to the effect that an action instituted in a Federal district other than that of the residence of either the plaintiff or defendant cannot be removed on the ground of diversity of citizenship. We have followed that rule in numerous cases. See the recent case of C. R. I. & P. Ry. Co. v. Cobbs, 151 Ark. 207.

There is little, if any, conflict in the testimony of the witnesses. The killing was accidental, and it was caused by the negligent act of Garrison, committed, however, without any bad motive or ill feeling. The two young men were good friends, and were in play with each other immediately before and at the time of the accidental killing. The testimony of Garrison tends to show that he had the pistol in his hand for the purpose of bringing the play to a close at the time the pistol was accidentally discharged. Garrison and Davis were nearly the same age, and were both employed by the express company at Hugo. Garrison had been working there about two years, and Davis had been working there four or five months. Garrison occupied the position designated as depot agent and also as "money clerk," and Davis was employed to fill the position of "platform man," his duties being to line-up the trucks for the arrival of trains, to help unload the express matter on trucks and drive the delivery wagons in gathering and distributing the express matter. The office was under the general management of Mr. Talkington, who had an office up town and usually visited the office at the depot every day for the purpose of giving general directions in the operations of the business at that office. There was another man--Snow-- filling the same position at the station as Garrison filled, and they worked in shifts. They had charge of the station in the absence of Talkington and handled money and other valuables received for transportation, and there was evidence tending to show that Davis worked under the direction of the one of these station agents on duty at the time.

The company furnished the depot agent with a pistol to use while on duty in the protection of valuables, and the pistol was used by the agent in meeting trains and in transporting valuable matter about the city for the purposes of delivery. The pistol furnished on this occasion was a .45 calibre Smith & Wesson, and printed instructions were given to the agents with respect to careful use of the weapon.

The killing of young Davis occurred about noon, or just after the noon hour, on Sunday, May 9, 1920. The young men were good friends and met up-town during the morning and rode together down to the station, and just before noon they lunched at a near-by restaurant. As they returned from the restaurant to the railroad station, in which the express office was located, they engaged in play, which continued after they reached the station building. The time...