Booby v. Postal Telegraph-Cable Co.

• Citation: 217 S.W. 877
• Decision Date: 05 January 1920
• Docket Number: No. 13161.,13161.
• Parties: BOOBY v. POSTAL TELEGRAPH-CABLE CO.
• Court: Court of Appeal of Missouri (US)

217 S.W. 877

BOOBY v. POSTAL TELEGRAPH-CABLE CO.

No. 13161.

Kansas City Court of Appeals. Missouri.

January 5, 1920.

Appeal from Circuit Court, Jackson County; Harris Robinson, Judge.

"Not to be officially published."

Action by Clarence W. Sooby, by his next friend, Nettie Miller, against the Postal Telegraph-Cable Company. Judgment for plaintiff, and defendant appeals. Reversed and remanded.

Sanford B. Ladd and Caleb S. Monroe, both of Kansas City, for appellant.

John O. Nipp, Horace Guffin, and Denzil F. Baltis, all of Kansas City, for respondent.

BLAND, J.

This is an action for damages for personal injuries. Plaintiff recovered a judgment in the sum of $840, and defendant has appealed.

The evidence shows that plaintiff and two other boys, all of the age of 14 years, were messenger boys employed by the defendant at its Mulberry branch office in Kansas City, Mo., to deliver telegraph messages in and about said city. One Tipton was manager of this office. Tipton had authority to direct and control the messenger boys and to discharge them, but had no authority to employ them. There was employed in the office as a telegraph operator one Wechsler, who in Tipton's absence had charge of the boys and office. Plaintiff had worked for defendant but two days when the accident happened. During the morning of the day of the accident the two other boys had been teasing and "jollying" plaintiff. This teasing so harassed plaintiff that at about a quarter after 5 in the afternoon he told Wechsler that he was going home, and he started to so do, but Wechsler told him that he had to work until 6 o'clock. Plaintiff replied that he was not going to stay, so Wechsler told the other boys not to let plaintiff go. Plaintiff started to go, but the other boys grabbed his hat and locked the doors of the room. Plaintiff slipped the bolt of the back door and went out into the alley and ran around to the front of the building, where his bicycle was standing. As he started out the back door, Wechsler told the other boys to go out and get plaintiff and bring him back, and thereupon one of the boys went out the front door and the other one the rear. Before plaintiff could reach his bicycle, the boy who had gone out of the front door secured it and started off with it, plaintiff running after him. Plaintiff recovered the wheel about 60 or 70 feet from the building and started to get on it, having one foot on the pedal and in the act of mounting when one of the boys pushed the bicycle from the rear, throwing plaintiff off and breaking his arm. This occurred about 100 feet from the building.

Defendant's first point is that its demurrer to the evidence should have been sustained, for the reason that as a matter of law it was not within the scope of Wechsler's employment to direct the other boys to bring plaintiff back. As already stated, Wechsler's duties were those of manager in charge of the office during Tipton's absence. It was his duty to tell the boys where to go to deliver messages. He bossed the boys and directed them what to do and what not to do. His duties were to see that the boys were "to go out promptly and to deliver promptly their messages." In Tipton's absence he was in general charge of the business of the office, and it was his duty to see that the business was transacted and that the boys behaved themselves. The boys took messages in turn as the latter came in. While Tipton had authority to discharge the boys, there is no evidence that Wechsler had any right to hire or discharge them. There is no question but that Wechsler had authority to see that they behaved themselves around the office, and that they did the work they were hired to do—that is, to promptly deliver messages.

We think under this evidence there is no question but that it was for the jury to say whether the order of Wechsler to the boys to bring plaintiff back was within the scope of Wechsler's employment. The jury could well say that it was the purpose of Wechsler to have plaintiff brought back so that he would be on hand to discharge his duties in delivering messages for the company. In doing this he was executing orders of his principal and was acting in furtherance of his master's business. The fact that his conduct may have been injudicious and negligent would not affect the relationship. It is well settled that where a servant, while executing his master's orders, negligently causes an injury to a third party, the master will be responsible, though the servant's act was not necessary for the proper performance of his duty to his master, or even was contrary to his master's orders. Garretzen v. Duenckel, 50 Mo. 104, 110, 111, 112, 11 Am. Rep. 405. Wechsler's act was apparently one of superintendency. We cannot say as a matter of law that he was not acting within the scope of his employment, even though he ordered force to be used to retain plaintiff at his work. Garretzen v. Duenckel, supra; Haehl v. Wabash R. Co., 119 Mo. 325, 24 S. W. 737; Barree v. Cape Girardeau, 197 Mo. 382, 95 S. W. 330, 6 L. R. A. (N. S.) 1090, 114 Am. St. Rep. 763; Meade v. C., R. I. & P. Rd. Co., 68 Mo. App. 92; Compher v. Telephone Co., 127 Mo. App. 553, 106 S. W. 536.

Defendant relies upon the cases of Drolshagen v. Railroad, 186 Mo. 258, 85 S. W. 344, and Jones v. St. Louis Packet Co., 43 Mo. App. 398. The former case is clearly not in point. In the latter case it was held that where a second mate of a boat engaged in inland navigation used violence for the purpose of compelling a deck hand to work, and the deck hand did work under such compulsion, the master would not be liable for the wrong done, in the absence of evidence of the delegation of such authority to the mate, for the reason that an act is not done within the scope of a servant's employment where the authority given to the servant does not imply use of force, where the servant uses force to carry out the master's orders. That holding was disapproved in the case of Collette v. Rebori, 107 Mo. App. 711, 720, 82 S. W. 552 (St. Louis Court of Appeals), and in Compher v. Telephone Co., supra, 127 Mo. App. loc. cit. 558, 106 S. W. 536 (Kansas City Court of Appeals), and has been overruled in effect by the case of Barree v. Cape Girardeau, supra (Supreme Court). We also disapprove it in this case in so far as it applies to the facts herein.

There was but one witness to the order of...