Frank Horton & Co., Inc. v. Diggs, No. KCD

CourtCourt of Appeal of Missouri (US)
Writing for the CourtSHANGLER
Citation544 S.W.2d 313
Docket NumberNo. KCD
Decision Date29 November 1976
PartiesFRANK HORTON & COMPANY, INC., a corporation, Appellant, v. George DIGGS, Respondent. 28349.

Page 313

544 S.W.2d 313
FRANK HORTON & COMPANY, INC., a corporation, Appellant,
v.
George DIGGS, Respondent.
No. KCD 28349.
Missouri Court of Appeals, Kansas City District.
Nov. 29, 1976.

Page 314

Boyer & Ratzlaff, John R. Miller, Edison Kaderly, Lamar, for appellant.

Blanchard, Van Fleet, Martin, Robertson & Dermott, Karl W. Blanchard, Ronald E. Mitchell, Joplin, for respondent.

Before SHANGLER, P.J., and SWOFFORD and SOMERVILLE, JJ.

SHANGLER, Presiding Judge.

The plaintiff corporation seeks damages for injuries to its vice-president, Estel Gideon then in the operation of a company truck and injured by collision with the defendant. Count I of the petition alleged that the corporation was engaged in the installation of underground communications cables by contract and that in the conduct of such affairs, vice-president Gideon was in charge of work crew operations. It was further alleged that the injuries kept Gideon from this work so that he could not recruit and field an additional crew necessary to complete installations already under contract. The pleading concluded with the allegations that no other employee was qualified to perform these services which went undone with a resultant loss of profits to the corporation of $150,000.

The defendant moved the dismissal of this pleading for failure to state a claim for relief on the grounds that (1) a claim by a master for the loss of services of the servant does not exist, and (2) that the provisions of The Workmen's Compensation Law (Chapter 287) preclude such an action.

The trial court dismissed Count I and retained jurisdiction over Count II of the petition, which remained.

The recitations of Count I are the old pleading, per quod servitium amisit, 1 which allowed a master to recover for the loss of the services of a servant injured by ill use or other trespass. This common law writ is mentioned in an early Missouri case (Dunn v. Cass Avenue and Fairgrounds Railway Company, 21 Mo.App. 188, aff'd 98 Mo. 652, 11 S.W. 1009 (1886)) but our courts have not considered, hitherto, whether our jurisprudence allows such a remedy. Those sparse decisions which deal with the question, with good reason, consider the doctrine anomalous to contemporary life and, in the absence of a domestic relation, refuse to extend recovery to a master for the loss of services of his employee from a negligent injury by a third person.

The doctrine which allows a master an action for the loss of services of the servant--to the extent that it survives at all--reflects a time when service was a status. Prosser on Torts, § 129 (4th ed. 1971); 57 C.J.S. Master and Servant § 622. The lineage of this remedy commences in the early Roman law of persons which gave to the paterfamilias sway over the household, children, servants and slaves alike, who were so far identified with the domestic head that an injury to any of them gave rise to an action to the paterfamilias, who alone was entitled to recovery. This idea was taken bodily into the English common law by Bracton so that a master had both a direct action for injury to a servant or another under his power, as well as an indirect action for the consequential loss of his services. Sayre, Inducing Breach of Contract, 36 Harvard L.Rev. 663 (1923). Thus, the common law treated a servant as hardly more than a chattel of the master. Inland

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Revenue Commissioners v. Hambrook, 3 Week L.R. 643, 3 All Eng 338 (2 QB 641 1956); 57 A.L.R.2d 790.

The realities of our day are different. A servant no longer regards himself as his master's man, but as an independent person who bargains effectively for his employment conditions. Seavey, Liability to Master for Negligent Harm to Servant, Wash.U.L.Q., p. 309 (1956). Thus, the relation of master and servant no longer rests on status but on contract.

A systematic history of the development of this distinctive cause of action appears in Inland Revenue Commissioners v. Hambrook, supra. In that case the Crown sought to recover for the loss of services of a civil servant which resulted from negligent injury inflicted by the defendant. The court traced out the progression of the per quod servitium amisit remedy in the early common law which treated a servant as the property of the master to the eighteenth century when the action per quod became confined to menial servants, those who lived in the household of the master as part of the family. The court concluded that an action which treats a servant as a chattel was anomalous and should not be extended, but confined to domestic relations where a member of the household is injured.

This is the tenor of those cases which have considered the question seriously. Thus, Nemo Foundations, Inc. v. New River Company, 155 W.Va. 149, 181 S.E.2d...

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3 practice notes
  • National Fruit Product Co., Inc. v. Baltimore and Ohio R. Co., No. 16077
    • United States
    • Supreme Court of West Virginia
    • 18 Abril 1985
    ...Mass. 282, 182 N.E. 477 (1932); B.V. Merrow Co. v. Stephenson, 102 Mich.App. 63, 300 N.W.2d 734 (1980); Frank Horton & Co. v. Diggs, 544 S.W.2d 313 (Mo.App.1976); Ferguson v. Green Island Contracting Corp., 44 A.D.2d 358, 355 N.Y.S.2d 196 (1974), aff'd, 36 N.Y.2d 742, 328 N.E.2d 792, 36......
  • First Nat. Bank of Sikeston v. Goodnight, No. 14171
    • United States
    • Court of Appeal of Missouri (US)
    • 29 Octubre 1986
    ...The action is to be distinguished from negligent interference with contract, discussed in Frank Horton & Co., Inc. v. Diggs, 544 S.W.2d 313 (Mo.App.1976), and intentionally tortious interference with contract, as discussed in such cases as Community Title Co. v. Roosevelt Federal Saving......
  • Volume Services, Inc. v. C.F. Murphy & Associates, Inc., No. WD
    • United States
    • Court of Appeal of Missouri (US)
    • 16 Agosto 1983
    ...3 See J. Louis Crum Corp. v. Alfred Lindgren, Inc., 564 S.W.2d 544 (Mo.App.1978), and Frank Horton & Co., Inc. v. Diggs, 544 S.W.2d 313 4 See Stephens v. Great Southern Sav. and Loan Ass'n., supra, holding that where a developer and the defendant agreed that the defendant would lend mon......
3 cases
  • National Fruit Product Co., Inc. v. Baltimore and Ohio R. Co., No. 16077
    • United States
    • Supreme Court of West Virginia
    • 18 Abril 1985
    ...Mass. 282, 182 N.E. 477 (1932); B.V. Merrow Co. v. Stephenson, 102 Mich.App. 63, 300 N.W.2d 734 (1980); Frank Horton & Co. v. Diggs, 544 S.W.2d 313 (Mo.App.1976); Ferguson v. Green Island Contracting Corp., 44 A.D.2d 358, 355 N.Y.S.2d 196 (1974), aff'd, 36 N.Y.2d 742, 328 N.E.2d 792, 36......
  • First Nat. Bank of Sikeston v. Goodnight, No. 14171
    • United States
    • Court of Appeal of Missouri (US)
    • 29 Octubre 1986
    ...The action is to be distinguished from negligent interference with contract, discussed in Frank Horton & Co., Inc. v. Diggs, 544 S.W.2d 313 (Mo.App.1976), and intentionally tortious interference with contract, as discussed in such cases as Community Title Co. v. Roosevelt Federal Saving......
  • Volume Services, Inc. v. C.F. Murphy & Associates, Inc., No. WD
    • United States
    • Court of Appeal of Missouri (US)
    • 16 Agosto 1983
    ...3 See J. Louis Crum Corp. v. Alfred Lindgren, Inc., 564 S.W.2d 544 (Mo.App.1978), and Frank Horton & Co., Inc. v. Diggs, 544 S.W.2d 313 4 See Stephens v. Great Southern Sav. and Loan Ass'n., supra, holding that where a developer and the defendant agreed that the defendant would lend mon......

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