Bouillon v. Laclede Gas Light Company
| Citation | 129 S.W. 401,148 Mo.App. 462 |
| Parties | WINNIE BOUILLON, Appellant, v. LACLEDE GAS LIGHT COMPANY, Respondent |
| Decision Date | 17 May 1910 |
| Court | Court of Appeal of Missouri (US) |
Appeal from St. Louis City Circuit Court.--Hon. Moses N. Sale Judge.
Judgment reversed and cause remanded.
P. P Mason and A. A. Paxson for appellant.
(1) 26 Cyc., pp. 1576-7; Gayle v. Mo. C. & F Co., 177 Mo. 427. (2) The liability of the master for his servant's torts is not based upon any personal authority in the agent to do the act, but upon public policy, and that it is more reasonable when one of two innocent persons must suffer from the wrongful act of the third person, that the master, who has employed the servant in a position of trust and confidence, should suffer, than a stranger. Chandler v. Gloyd, 217 Mo. 412; Barree v. Cape Girardeau, 197 Mo. 391; Chicago Herald Co. v. Bryan, 195 Mo. 574; Payne v. Railroad, 105 Mo.App. 155; Knowles v. Bullene, 71 Mo.App. 341; Regan v. Reed, 96 Ill.App. 460. (3) Even the servant's failure to obey instructions will not relieve the master from liability for the tort of his servant committed within the scope of his employment. Paint & Color Co. v. Conlon, 92 Mo. 221; Whitehead v. Railroad, 99 Mo. 263; Houck v. Railroad, 116 Mo.App. 559; Compher v. M. K. Tel. Co., 127 Mo.App. 553; Dreyfus v. Railroad, 124 Mo.App. 585. (4) Annoyance, vexation, indignity and mental anguish are elements of damage, as well as the actual physical pain caused by the bringing on of the miscarriage, and plaintiff was entitled to go to the jury on the evidence even though the court below was right in its notion that the physical damages by reason of the miscarriage were too remote. Railroad v. Flagg, 43 Ill. 368; O'Donnell v. Transit Co., 107 Mo.App. 34; Caster v. Oster, 134 Mo.App. 146; Thurman v. Tel. Co. (Ky.), 14 L. R. A. (N. S.) 499; Trigg v. Railroad, 74 Mo. 153; West v. Forrest, 22 Mo. 344. (5) Violent demonstrations, angry quarreling, profane and boisterous conduct, within hearing of a sick person or one in a delicate condition, renders the guilty party liable for the damage caused by such conduct. Phillips v. Dickerson, 85 Ill. 12, 28 Am. R. 607; Barber v. Reese, 60 Miss. 906; Hill v. Kimball, 76 Tex. 210, 7 L. R. A. 618; Mann B. Co. v. Dupre, 54 F. 646; Richberger v. Express Co., 73 Miss. 161; Lesch v. Railroad, 93 Minn. 435; Brownback v. Frailey, 78 Ill.App. 262; Wyant v. Crouse (Mich.), 53 L. R. A. 626, 633; Tunnicliff v. Railroad (Mich.), 32 L. R. A. 142.
Percy Werner for respondent.
(1) No cause of action is shown by the evidence. Defendant's servant at most was guilty of a disturbance of the peace for which he is personally responsible. Coarse or unbecoming language, unaccompanied by gestures indicating an intention to inflict bodily harm, does not constitute an assault, and the cause of action attempted to be set up certainly does not fall within any other subdivision into which actions arising out of torts are classified. 28 Am. and Eng. Ency. of Law (2 Ed.), p. 257; 2 Am. and Eng. Ency. of Law (2 Ed.), 957; Stearns v. Sampson, 59 Me. 568 (cases on Torts, Ames, Cambridge, 1893). (2) Whatever was said and done by defendant's servant, so far as complained of, was, according to the testimony, impelled by motives wholly personal to himself, and simply to gratify his own feeling of resentment, and was therefore not within the scope of his employment, and the principle of respondeat superior does not apply. Vogeli v. Pickle Co., 49 Mo.App. 623; Hael v. Railroad, 119 Mo. 325; Hardeman v. Williams, 150 Ala. 415, 43 So. 726, 10 L. R. A. (N. S.), 653; Collette v. Rebori, 107 Mo. 711; Meehan v. Moorwood, 52 Hun 566. (3) The damages, physical effects flowing from agitation caused by the use of unbecoming or coarse language within the hearing only of, and not directed at the injured party, are too remote, especially where the effects are due to a poor physical condition which is unknown to the party charged with using the language, and where no maliciousness or wilfulness is charged, and the result could not reasonably have been foreseen. Francis v. St. Louis Transfer Co., 5 Mo.App. 7; Trigg v. Railroad, 74 Mo. 147; Strange v. Railroad, 61 Mo.App. 586; Deming v. Railroad, 80 Mo.App. 152; Connell v. Telegraph Co., 116 Mo. 34; Mitchell v. Railroad, 151 N.Y. 107; Phillips v. Dickerson, 85 Ill. 11; Victorian Ry. Com'rs v. Coultas, 13 App. Cs. 222.
--This is a suit for damages accrued through physical injuries which resulted from fright. At the conclusion of plaintiff's case the court directed a verdict for defendant and plaintiff prosecutes the appeal.
It appears that plaintiff, a married woman, resides in the lower flat at 812 North Jefferson avenue in the city of St. Louis and at the time in question was there sick in bed. She was pregnant with child and threatened with a miscarriage. She had been confined to her bed in care of a physician for about one month when, on October 16, defendant's agent came to the front door of her apartment and demanded admission for the purpose of reading the gas meter. It appears plaintiff did not use gas at all in connection with her household but a meter had been installed in the basement immediately under her flat in connection with the flat above, occupied by other tenants. Plaintiff testified that she heard some one knocking at the front door, which, it seems, was almost adjacent to the room in which she was confined to her bed. Upon hearing loud raps at the door, she directed the nurse to answer the call. The nurse opened the door and defendant's agent said, "I am from the Laclede Gas Company and I came to read that meter." The nurse answered, "You can't come through here to-day, the lady is awfully sick here," to which the agent replied, "I have to read the meter." Thereupon plaintiff said to the nurse, "Cora, shut the door; it is getting awfully cold in here," and defendant's agent grabbed the door, saying, "Don't you shut the door on my hand." Plaintiff said to the nurse, "Shut the door on his hand if he don't take it out," and said to the defendant's agent, "You haven't any right to molest me when I am sick, and I don't use gas anyhow." To this defendant's agent replied, Plaintiff relates defendant's agent said "That is what he was there for, and that, by God, he was going to find out," and I said, "For mercy sake, Cora, shut the door," and he said "God damn it, don't you shut the door on my hand," and I said, "For goodness sake tell him to go around the back and go in the way he has been coming in," whereupon defendant's agent desisted his attempt to go through plaintiff's apartment and entered the basement by a side or back door as was proper.
The testimony discloses that the controversy between defendant's agent and plaintiff's nurse at the door continued for probably five minutes; that as a result thereof plaintiff became greatly frightened and shocked and was seized immediately thereafter with a nervous chill. It seems that she had several chills during the evening and suffered a miscarriage on the following day as a result of the excitement and fright occasioned by the conduct of defendant's agent in unlawfully attempting to enter her apartment. The nurse who attended plaintiff at the time gave testimony to the same effect as plaintiff, and her physician testified that in his opinion the miscarriage occurred as a result of the fright occasioned by the conduct of defendant's agent. It appears too that plaintiff was sick for a considerable period thereafter and that her health is permanently impaired as a result of the misfortune.
Defendant insists the facts relied upon present no cause of action known under the various heads of tort, unless it be for an assault, and then proceeds to point out why no assault on plaintiff is shown by the proof. No one can doubt that the case fails to disclose an assault on plaintiff as the controversy was principally had with, and all the insulting language directed against, another, the nurse. However this may be, the facts reveal a valid ground of liability on the score of trespass, and this is true notwithstanding the damages laid are not for the commission of the initial act of trespass, but relate instead to its consequence alone. Although defendant's agent had a right to enter the basement beneath plaintiff's apartment for the purpose of reading the gas meter, it is entirely clear that he had no authority to enter or pass through plaintiff's flat for that purpose. She was not a consumer of gas and the gas meter was in no sense connected with her household. Plaintiff is assured peaceful repose of her home against unwarranted intrusion from others. A trespasser is liable to respond in damages for such injuries as may result naturally necessarily, directly and proximately in consequence of his wrong. This is true for the reason the original act involved in the trespass is unlawful. [Wyant v. Crouse (Mich.), 53 L.R.A. 626.] As to what matters do so result, depends upon the particular facts of each case. The consequence may be one thing in one case and something different in another; but be this as it may, if an injury is directly traceable to the unlawful invasion of plaintiff...
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