Elder v. Dixie Greyhound Lines

• Decision Date: 04 December 1946
• Docket Number: No. 13322.,13322.
• Citation: 158 F.2d 200
• Parties: ELDER v. DIXIE GREYHOUND LINES, Inc.
• Court: U.S. Court of Appeals — Eighth Circuit

158 F.2d 200 (1946)

ELDER v. DIXIE GREYHOUND LINES, Inc.

No. 13322.

Circuit Court of Appeals, Eighth Circuit.

December 4, 1946.

Homer Hall, of St. Louis, Mo., for appellant.

Roscoe Anderson, of St. Louis, Mo. (Joseph C. Miller, Cullen Coil, and Anderson, Gilbert, Wolfort, Allen & Bierman, all of St. Louis, Mo., on the brief), for appellee.

Before GARDNER, SANBORN, and WOODROUGH, Circuit Judges.

WOODROUGH, Circuit Judge.

Plaintiff brought this action in the state court to recover damages for personal injuries he sustained in consequence of an assault and battery committed upon him August 6, 1944, about twenty-five miles south of St. Louis, Missouri, on United States Highway No. 61, by one Ernest Cameron, a bus driver in the employ of the defendant Dixie Greyhound Lines, Inc. Plaintiff alleged that Cameron's acts were wrongful and tortious and that he committed them in the performance of the duties of his employment to aid and assist in the protection of the interests of defendant as his employer, and plaintiff prayed for actual and also for punitive damages against the employer in amounts exceeding $3,000. The defendant denied responsibility for the acts attributed to Cameron. There was diversity of citizenship, and on removal a trial was had to the court and jury in the federal court. At the conclusion of the plaintiff's evidence the defendant moved the court to direct a verdict for defendant on the ground that "there is no evidence that in striking and assaulting the plaintiff the driver Cameron was acting within the scope of his employment for the defendant but, on the contrary, plaintiff's evidence shows that at the time of the alleged assault the driver Cameron was acting on his own behalf and on his own business or interest." On the argument of the motion the court clearly indicated its conclusion that the motion should be sustained, but before the direction was given to the jury counsel for plaintiff stated, "I apprehend that Your Honor feels that the motion for a directed verdict probably would be the appropriate order." Counsel thereupon "in view of that situation" requested "the privilege to take a non suit without prejudice," and also requested "the privilege of dismissing this suit without prejudice." The requests were denied and the jury, under the court's direction, returned its verdict for defendant and judgment of dismissal at plaintiff's costs was entered. Motion for new trial was overruled and the plaintiff has taken this appeal.

The record discloses that on the evening of August 6, 1944, the plaintiff was employed as a bus driver for St. Louis-Cape Bus Line, driving a bus loaded with about thirty five passengers from Cape Girardeau to St. Louis over Highway No. 61, and Cameron, under his employment by defendant, was driving a Dixie Greyhound bus with passengers between the same points, in the same direction, over the same route. The drivers were not acquainted with each other, but along the road Cameron attempted to drive the Dixie Greyhound bus in his charge past the bus in plaintiff's charge but was prevented from passing by the movement of plaintiff's bus into the lane ahead of Cameron. After several attempts, Cameron succeeded in passing the plaintiff, but after the passing had been accomplished Cameron, instead of proceeding on his way to St. Louis, "cut in and squeezed the plaintiff over on the shoulder of the highway" and brought the Dixie Greyhound bus to a stop on the highway, causing the plaintiff to bring the bus in his charge to a stop on the shoulder and close to the edge of the fifteen to eighteen foot embankment on which the road was laid. When stopped there was from eight to fifteen feet of space between the front of plaintiff's bus and the tail end of the Dixie Greyhound bus. Both drivers alighted, walked towards each other and met in the space between the busses. According to the testimony of plaintiff he did not approach Cameron to quarrel or fight, but he asked Cameron what was the matter, and Cameron without preliminary, said to plaintiff, "You smart son of a b____," and struck him in the face. Plaintiff attempted to defend himself but did not strike Cameron, and in the melee both were carried over the edge of the embankment and rolled down into a barbed wire fence. There Cameron ceased his aggression, restored plaintiff's cap to him and said, "This is your cap, we had better get out of here, we are both fired." "I have a government man on my bus, we will both be fired." Plaintiff said, "What about me? What are you going to do about my clothing and the condition I am in?" Cameron said, "Well we will get into St. Louis. I will take care of you." The drivers then returned to their respective busses and Cameron drove on into St. Louis. Plaintiff got help from his passengers in pinning up his torn garments and then he also drove on into St. Louis. The plaintiff suffered cuts and abrasion and damage to his clothing and also humiliation in the presence of his passengers and of the public at the terminal in St. Louis.

It is clear and conceded that the question whether or not the Dixie Greyhound company could be held liable on the facts shown for the tortious assault and battery committed by its employee upon the plaintiff under the doctrine of respondeat superior was governed by the law of Missouri where the tort was committed. The trial court recognized that it was required under Missouri decisions to consider the evidence in the light most favorable to plaintiff and to accord to the plaintiff the benefit of all inferences which could reasonably be drawn in his favor upon the testimony adduced. But it was of the opinion that there was no evidence from which it could reasonably be inferred that the acts of Cameron which occasioned damage to the plaintiff were done by Cameron in furtherance of any business of the Dixie Greyhound company or with any intent or purpose on Cameron's part to promote the interests of his employer. The court observed that the interference which the plaintiff had caused to the progress of the Dixie Greyhound bus to St. Louis occurred and was terminated before the busses were brought to a stop and before the fight occurred. The court said, "If he Cameron had done any act in getting around that bus and anybody had been injured as a result of it, certainly the Greyhound Line would be liable for it." But when "he drove in front and stopped his bus and went back for the purpose of engaging in controversy he was completely outside of the scope of his employment." It appeared to the court that there was no evidence from which it could reasonably be inferred that Cameron's tortious acts, committed after he had succeeded in passing by the plaintiff, had any relation to the operation of the Greyhound bus over the remaining part of the route to St. Louis. As to that part of the route the court observed that Cameron "was already out in front," and to counsel's suggestion that plaintiff might later again get in front and interfere, the court indicated that was dealing in realms of speculation. The court was of the opinion that the decisions in Missouri ("the majority of them") were against the right of the plaintiff to go to the jury, and ruled accordingly.

On this appeal the numerous decisions of the courts of Missouri establishing and defining the doctrine of respondeat superior in tort cases in that state have been cited and considered. The parties present no dispute as to general principles governing the question of the master's liability for torts of his servant and the limits to such liability. But hardly any one of the many cases passed on is exactly like another, and the duty of the federal trial court in such a case as this is to compare the proof in the case before it with that in the authoritative analogous cases which have been passed on in the state, and to follow the state law in its decision.

The Missouri cases most stressed here to support the judgment are: Milazzo v. Kansas City Gas Co., Mo.Sup., 180 S.W.2d 1; Rohrmoser v. Household Finance Corp., 231 Mo.App. 1188, 86 S.W.2d 103; Morgan v. Kroger Grocery & Baking Co., 348 Mo. 542, 154 S.W.2d 44; State ex rel. Gosselin v. Trimble, 328 Mo. 760, 41 S.W.2d 801; Wolf v. Terminal R. Association, 282 Mo. 559, 222 S.W. 114; Evans v. Sears, Roebuck & Co., Mo.App., 129 S.W.2d 53.

Milazzo v. Kansas City Gas Company was a suit for damages, compensatory and punitive, for personal injuries in which it appeared an assault was made upon the plaintiff in the action by one Kreeger, an employee of the defendant hired to read gas meters. He entered plaintiff's premises for the purpose of going to the basement to read the gas meter and the plaintiff started conversation about the size of the gas bills. The employee, in response, cursed the plaintiff and continued on to the basement where he apparently read the meter. When he came back the plaintiff wanted to know from him the meaning of his insult and ordered him not to come into the place of business again, to which Kreeger replied in vile language and added that if plaintiff would come from behind the counter he would show him something. Plaintiff came from behind the counter. His testimony was that he thought he could get some information since Kreeger had a book in his hands. He said he did not go out to fight but merely went to see what Kreeger had to show him. Kreeger then committed an assault upon the plaintiff, picked up his hat and after some further words took his departure. The Supreme Court of Missouri held that a demurrer to the evidence should have been sustained. We quote from the court's opinion, 180 S.W.2d loc. cit. 3:

"If, from a most favorable view of the whole evidence, giving plaintiff the benefit of every reasonable inference in his favor, it appears beyond any reasonable controversy that the assault and its purpose had no connection with Kreeger's duties to defendant, and that the assault was not intended or made to accomplish or...