Burgert v. Union Pacific Railroad Company, 15625.

• Decision Date: 16 January 1957
• Docket Number: No. 15625.,15625.
• Citation: 240 F.2d 207
• Parties: Clyde C. BURGERT, Appellant, v. UNION PACIFIC RAILROAD COMPANY, Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

240 F.2d 207 (1957)

Clyde C. BURGERT, Appellant, v. UNION PACIFIC RAILROAD COMPANY, Appellee.

No. 15625.

United States Court of Appeals Eighth Circuit.

January 16, 1957.

Kaer P. Vanice, II, Kansas City, Mo. (Edwin Earnshaw and Kirchner & Vanice, Kansas City, Mo., on the brief), for appellant.

Melvin J. Spencer, Kansas City, Mo. (Douglas Stripp and Watson, Ess, Marshall & Enggas, Kansas City, Mo., on the brief), for appellee.

Before GARDNER, Chief Judge, and VAN OOSTERHOUT and WHITTAKER, Circuit Judges.

GARDNER, Chief Judge.

This action was brought by appellant against the Union Pacific Railroad Company to recover damages for personal injuries alleged to have been suffered by him as a result of an assault and battery by an employee of the Union Pacific Railroad Company.

The parties will be referred to as they were designated in the trial court. By count I of his complaint plaintiff in effect alleged that at all times pertinent to the issues here involved he worked on an express car of the Railway Express Agency, Inc., which car formed a part of a Union Pacific Railroad Company's passenger train operating between Kansas City, Missouri and Salina, Kansas; that one Milo Stanley was an employee of the railroad company who had on many and various occasions quarreled, assaulted, seized, fought, scuffled with, injured and threatened to injure plaintiff and other employees of defendant and that defendant knew, or should have known, of said Stanley's pugnacious propensities; that on the 22nd day of November, 1953, "plaintiff was attacked and battered by said Milo Stanley on or about his arms, body, head and limbs and was thrown to the platform with great force and violence"; that at the time and place of said assault said Milo Stanley was acting within the scope of his employment as a brakeman for defendant; that defendant was negligent in that it "carelessly and negligently continued to employ said Milo Stanley, and as a result of the negligent and careless employment of said Milo Stanley, the plaintiff was assaulted", and that plaintiff had previously protested to defendant.

Count II of the complaint incorporated all the allegations of count I and in addition alleged that by reason of a contract between defendant and the Railway Express Agency, Inc. for the handling of baggage plaintiff was within the Federal Employers' Liability Act, Title 45 U.S.C.A. ß 51 et seq., and that defendant negligently failed to provide plaintiff with a safe place in which to work.

The action was commenced December 14, 1954. In due course defendant filed an answer and thereafter filed an amended answer but neither of these answers are included in the printed record. After depositions of plaintiff and Stanley had been taken and filed defendant moved for summary judgment on substantially the following grounds: (1) that the cause of action was barred by the Kansas one year statute of limitations, G.S.1949, 60-306, subd. 4, the alleged cause of action having arisen in the state of Kansas, (2) that if it be claimed that the cause of action be based upon negligence of defendant no recovery can be had because it now appears from the deposition of plaintiff that at the time of the alleged assault upon him the said Milo Stanley was not acting within the scope of his employment and, further, that as shown by the allegations of plaintiff's complaint, and as admitted in plaintiff's deposition, he had full knowledge of the alleged dangerous and violent characteristics of said Stanley and, hence, he assumed the risk of exposing himself to the alleged assault of the said Milo Stanley, and (3) that as it appears from the allegations of plaintiff's complaint that he was at the time of receiving his alleged injuries employed by the Railway Express Agency, Inc., and not by the defendant, he cannot claim any benefits under the Federal Employers' Liability Act.

The court sustained the motion for summary judgment on the sole ground that as the cause of action was based upon an alleged assault and battery occurring in the state of Kansas it was barred by the Kansas one year statute of limitations applicable to assault and battery. The court apparently found it unnecessary to consider the other grounds upon which the motion was based.

After plaintiff, pursuant to his appeal, had filed his printed record and brief the defendant moved to dismiss the appeal because of the alleged failure of plaintiff to comply with various designated rules of this court relating to the preparation and contents of the printed record and brief. None of the grounds for dismissing the appeal challenged the jurisdiction of this court and we denied the motion without prejudice to the right of defendant to renew it in connection with the argument of the case on its merits and granted defendant the right to file typewritten supplemental record. The defendant accordingly filed typewritten supplemental record and filed brief fully arguing its case on the merits, in which brief it renewed its motion to dismiss.

Plaintiff seeks reversal on the sole contention that, "The appellee was in charge of the premises on which the injury occurred and was responsible for injuries resulting from a danger of which it knew and from which it failed to protect the appellant".

Preliminary to a consideration of the case on its merits we shall dispose of defendant's motion to dismiss the appeal. As has been observed, the motion was tardily made so far as it referred to the alleged inadequacy of the printed record in that the motion was not made until after plaintiff had filed his brief and the cause was on the calendar for disposition. As the objections did not go to the jurisdiction of the court we denied the motion without prejudice to defendant's right to renew it because we thought it might better be considered in connection with a determination of the case on its merits. In view of our conclusion as to the merits of the case we now deny the motion to dismiss the appeal.

In its motion for summary judgment defendant relied upon the allegations of plaintiff's complaint, his testimony as reflected in his deposition, and the undisputed testimony of Stanley. The allegations of plaintiff's complaint, as well as his testimony, indicated that plaintiff was thoroughly familiar with the alleged dangerous and violent propensities of defendant's employee Stanley, and his testimony, among other things, conclusively showed that at the time of the alleged assault by Stanley, Stanley was not acting within the scope of his employment but that both plaintiff and Stanley had completed all duties of their employment and were on their own time and free to do as they wished. After plaintiff had signed out and left the express car on the night of November 22, 1953, he walked back to the mail car to visit with a man who was still working. The conversation did not involve their work. After plaintiff had been there about five minutes, Stanley, who had also completed his duties, approached and the alleged assault occurred. Plaintiff testified that Stanley's duties as brakeman, when the train arrived in Salina, consisted simply of taking down his markers which consisted of two lamps on the rear of the train and putting them away. Stanley testified that he also went through all the coaches and turned out the lights and then he would return to the rear end of the train, get his grip and go to his hotel. Plaintiff testified in his deposition that when Stanley left the rear end of the train he was finished for the night and did not have to check out at the station or report to anyone before or after he left the train. Plaintiff also testified in his deposition that when Stanley left the train he was through and had nothing to do but to go to the hotel or a movie or a restaurant, or to do whatever he wanted to do. Stanley testified in his deposition that after he finished his duties on the night in question he alighted from the rear platform of the train and went up to plaintiff to ask plaintiff if he were going over to the hotel with him and that at that time he was on his way to the hotel and his work had been completed. As Stanley approached plaintiff, plaintiff told a by-stander, "I am going to beat his brains out". The by-stander repeated the remark to Stanley and plaintiff admitted to Stanley that he had made the remark. Stanley then started to chase plaintiff, caught up with him and the two men wrestled around and both fell down. Obviously, the incident here involved arose entirely out of a remark by plaintiff and a personal encounter after both men had finished their work, were off duty and were on their way to their hotel. Plaintiff admitted...