American Ry. Express Co. v. Davis
| Decision Date | 27 February 1922 |
| Docket Number | (No. 181.) |
| Citation | 238 S.W. 50 |
| Parties | AMERICAN RY. EXPRESS CO. v. DAVIS et al. |
| Court | Arkansas Supreme Court |
Appeal from Circuit Court, Little River County; James S. Steel, Judge.
Action by Ella Davis and others against the American Railway Express Company. Judgment for plaintiffs, and defendant appeals. Reversed and remanded.
Cottingham, Hayes, Green & McInnis, of Oklahoma City, Okl., and June R. Morrell, of Ashdown, for appellant.
Stephenson & Holloway, of Hugo, Okl., and Reynolds & Steel, of Ashdown, for appellees.
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, Okl.; the shot being accidentally fired from a revolver in the hands of Glyde 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, 27 Sup. Ct. 150, 51 L. Ed. 264, 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, 235 S. W. 995.
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 uptown, 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 caliber 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 uptown during the morning and rode together down to the station, and just before noon they lunched at a nearby 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 for the arrival of a passenger train was approaching, and after the play had progressed for a while Garrison desired to bring it to an end and went to his office, where he occupied a desk, and told Davis to "line up the trucks." Garrison went to his room and sat down at his desk to make out some bills, but Davis persisted in carrying on the frolic. There was a window partially raised in front of Garrison's desk, and Davis procured a rug, rolled it up, and was pushing it through the window at Garrison.
Garrison testified that he knew that Davis was afraid of pistols, and could be easily frightened with one; so, in order to end the play and cause Davis to go to his work, he took the pistol from the place where it lay on the top of the safe, and after unbreeching it and revolving the cylinder, so as to make the hammer rest, as he thought, on an empty cylinder, he presented the pistol at the window and it was accidentally fired while in his hand. Garrison could not say whether he pulled the trigger or not, and was not sure whether he had raised the hammer of the pistol. His testimony was vague and uncertain on this point, but it is clear and undisputed that he took the pistol and presented it toward the window where Davis stood in mimic offensive, and that it was in some way accidentally discharged. There can be no doubt but what he inadvertently left the pistol cocked and pulled the trigger, for he did not drop the pistol, and there was no other way in which the hammer could have been brought in contact with the shell. The statement of Garrison in his testimony was that he knew Davis was afraid of a gun, "so I just raised the gun up at the window, so as to scare him and let him go on with his work." When the pistol was discharged, Davis cried out in fright and pain, and on examination it was found that the bullet had struck him in the side. He lived a few days, and died from the effects of the wound.
The case was submitted to the jury on instructions given at the instance of the plaintiff, over the objections of the defendant, which told the jury, in substance, that if the defendant furnished the pistol to its agent, Garrison, for use in connection with the performance of his duties, and that Garrison, while in the station or express office, was guilty of negligence in handling the pistol, and thereby caused the...
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