Annis v. Postal Telegraph Co.

• Decision Date: 11 January 1944
• Docket Number: 17164.
• Citation: 52 N.E.2d 373,114 Ind.App. 543
• Parties: ANNIS v. POSTAL TELEGRAPH CO. et al.
• Court: Indiana Appellate Court

52 N.E.2d 373

114 Ind.App. 543

ANNIS v. POSTAL TELEGRAPH CO. et al.

No. 17164.

Appellate Court of Indiana, in Banc.

January 11, 1944

Seth S. Ward, of Indianapolis, Gilbert Butler, of Martinsville and Gavin & Gavin, of Indianapolis, for appellant.

Newberger Simon & Davis, Alex L. Asch, and Homer Elliott, all of Indianapolis, for appellees.

CRUMPACKER Chief Judge.

This is an action for damages brought by the appellant Anna L. Annis against the appellees Postal Telegraph Company and the Postal Telegraph-Cable Company of Indiana, in which it is alleged that the appellees had a messenger boy in their employment who was engaged in their behalf in the delivery of a telegram on foot when he negligently collided with the appellant on a public sidewalk whereby she sustained personal injuries. A demurrer to the appellant's complaint was sustained by the court; she refused to plead further, and judgment was entered accordingly. From such judgment this appeal is taken and the sole error assigned is the court's ruling on said demurrer.

We gather from the briefs of counsel and oral argument that the trial court sustained the appellant's demurrer to the complaint solely on the ground that it discloses on its face that the accident in controversy occurred upon a public sidewalk and that the sole means of locomotion used by the messenger boy, upon and over said sidewalk, was his own legs, the negligent use of which was the proximate cause of the accident. That the use of his legs and the use of the sidewalk were both uses in his own right that were not and could not be given or delegated to him by the appellees. That to such a state of facts the doctrine of respondeat superior, upon which the appellant relies for recovery, has no application.

An unbroken chain of authority in this state, extending over a period of many years and repeatedly announced, holds that in determining the question of respondeat superior the real test is whether at the time the employee commits the negligent act, resulting in injury to a third person, he is engaged in performing some duty within the scope of his employment. We are now asked to narrow or limit the application of this doctrine by holding that it is only when a servant uses a vehicle or other instrumentality owned, controlled or directed by his master, as a means of locomotion upon a public highway, that the master can be held liable for the negligence of his servant, which negligence is predicated solely upon the manner of such locomotion.

It has always been the law of this state that when a person hires another to do something for him and the employee so hired does the thing he is employed to do in a negligent manner whereby a third person is injured, the employer is liable to respond in damages. That, in a broad sense, is the doctrine of respondeat superior, and we can find no precedent in Indiana for the limited application the appellees seek. It must be said, however, that the precise question here presented has never been decided in this state and the matter therefore becomes one of first impression.

In support of their position the appellees rely upon two Missouri cases, Phillips v. Western U. Tel. Co., 1917, 270 Mo. 676, 195 S.W. 711, L.R.A.1917F, 489, and Ritchey v. Western Union Telegraph Co., 1931, 227 Mo.App. 754, 41 S.W.2d 628. On its facts the Phillips case is very similar to the one at bar. Phillips was standing on the curb of a public sidewalk waiting to cross the street with the traffic signal. A messenger boy employed by the Western Union Telegraph Company and engaged, for his employer, in the delivery of a telegram came running along the sidewalk, looking backward over his shoulder at a newsboy from whom he had just snatched a paper, and collided with said Phillips with such force that she was knocked down and severely injured. There was trial, verdict and judgment for the plaintiff. The decision of the Supreme Court of Missouri, in reversing such judgment, so clearly states the appellees' position here and so palpably furnishes the reason for the trial court's ruling on the demurrer in the present case that we quote from the same as follows [270 Mo. 676, 195 S.W. 712, L.R.A.1917F, 489]:

"In going into the consideration of this case it is well to have in mind that the boy who caused the injury which is the subject of the suit was not traveling on the street by permission of his codefendant, but in the exercise of a public right valuable to himself as a facility for gaining a livelihood as well as to his employer. Had he not possessed this right his employer could not have conferred it nor taken it away. It went with his services as far as it was necessary to the performance of the duty involved, and no further. In all other respects and for all other purposes it remained his own. It was, like his health and strength, a part of his own equipment for the services in which he was engaged. We cannot arbitrarily assume that by the terms of his employment he was forbidden to seek, while on these trips, his own pleasure or profit in any manner consistent with the performance of his whole conventional duty, nor was the defendant under any obligation to so restrain his liberty of action, in the ordinary use of the public easement, although, should it authorize him to commit a wrong, as by inciting him to dangerous speed in a crowd, it

...