Green v. Standard Oil Co. of Indiana

• Decision Date: 03 December 1917
• Docket Number: No. 12571.,12571.
• Citation: 199 S.W. 746
• Parties: GREEN v. STANDARD OIL CO. OF INDIANA et al.
• Court: Missouri Court of Appeals

199 S.W. 746

GREEN v. STANDARD OIL CO. OF INDIANA et al.

No. 12571.

Kansas City Court of Appeals. Missouri.

December 3, 1917.

Rehearing Denied December 31, 1917.

Appeal from Circuit Court, Buchanan County; Thos. B. Allen, Judge.

"Not to be officially published."

Action by Albert Green against the Standard Oil Company of Indiana and another. Judgment for plaintiff, and defendants appeal. Affirmed.

Johnson & Lucas, of Kansas City, and Ryan & Zwick, of St. Joseph, for appellants. Barney E. Reilly and W. B. Norris, both of St. Joseph, for respondent.

TRIMBLE, J.

The defendant, Chartrand, was in the employ of his codefendant, Standard Oil Company, as a watchman in charge of and guarding the company's St. Joseph warehouse and storage plant at night. Plaintiff brought this action and recovered judgment for damages in the sum of $2,500 against both defendants on account of having been shot in the ankle by said Chartrand while endeavoring to kill a rat that was making its entry upon the premises. Both defendants have appealed; and the important question, as to the company, is whether the attempted killing of the rat was within the line or scope of the watchman's duties so as to render the company liable for the consequences of his act. Or, to state it somewhat more accurately, the real question is whether there is any substantial evidence from which the jury could find that the watchman, in trying to kill the rat, was acting within the scope of his employment.

The company's plant abuts upon and is on the west side of Bartlett street which runs north and south. The whole inclosure constitutes about one-fourth of a block, and contains a warehouse, filled with case goods, lubricating oils, and other by-products manufactured by the company, a stable or barn holding the horses, feed, harness, and wagons; and at the south end of the plant and just back of the barn are the storage tanks containing various kinds of oils and also gasoline in large quantities.

The plaintiff lived with his parents a few doors south of the defendant's plant and on the same side of the street. On the evening of July 31, 1916, some time after 7 o'clock, plaintiff started up Bartlett street on the sidewalk going past defendant's plant to get a can of beer. The fence inclosing the plant kept plaintiff from seeing into the inclosure, and also prevented any one therein from seeing plaintiff until the opening made by the gate was reached. Just as the latter got up to the gate he saw a rat run across the sidewalk in front of him going into the gate, and heard a pistol shot from within the inclosure, the bullet striking the ground close in front of plaintiff. Plaintiff yelled, "Watch out!" but the words were not out of his mouth before a second shot immediately followed the first. This last shot struck plaintiff in the ankle and produced the injury for which suit is brought. When struck, plaintiff fell against the fence and called to the watchman saying, "You got me that time." The watchman was either standing or sitting in a chair some two feet or more inside defendant's inclosure when the shots were fired. He was in his shirt sleeves, and had a belt on with no suspenders. When plaintiff said, "You got me that time," the watchman stuck the pistol in his shirt and replied, "Surely not; let me see." Plaintiff testified that he may have spoken crossly to the watchman, to which the watchman replied, "No need to get sore at me because I was only doing my duty killing that rat." The watchman then brought a chair and caused plaintiff to be seated and opened his shoe for him, disclosing that he was wounded and bleeding.

The defendant watchman testified that he was not in the inclosure, but was out in the street with his pistol shooting at the rat; that after it had been wounded and was endeavoring to get away, the plaintiff, toward whom the rat crawled, pointed it out with his foot and said, "There he is now, get him," or words to that effect, and that then he fired the shot and accidentally struck plaintiff. The latter, however, testified positively that the affair happened as above stated; and in addition to this, several other witnesses for plaintiff testified that they looked up the street when the shots were fired and saw no one on the street except the plaintiff, and that the shots came from within defendant's inclosure. As the jury has found in plaintiff's favor, upon substantial evidence in support thereof, and as that verdict has received the approval of the trial court, we must accept as true all the evidence tending to support plaintiff's cause of action, together with every reasonable inference which the jury may justly and legally draw therefrom.

As bearing upon the question whether the watchman was acting within the scope of his employment, there is further evidence adduced by plaintiff tending to show the following: That the plant was full of inflammable and highly combustible materials; that precautions were taken against fire as evidenced by signs around in the barn forbidding smoking; that if rats were about the premises in great numbers they would be dangerous, as they might cause a fire; that there were a great many rats about the place, and that they ate the feed kept in the barn, and destroyed the harness hanging therein by gnawing it; that during the time Chartrand was a watchman, which was from April to the time of the injury of plaintiff the last of July, he carried a pistol which was kept in the daytime in the superintendent's desk drawer; that the watchman carried the pistol to protect both himself and his employer's property, and that the superintendent knew of this; that instructions were given to the employés to kill rats about the place, and many were killed in various ways, by pitchforks, clubs, etc.; that the foreman of the plant at the time plaintiff worked there had referred to the number of rats around the place and said the employés had to get rid of them; that at one time, under instructions from the superintendent, a rat trap was purchased and set and a number of rats caught, and at other times cats and dogs had been obtained with which to kill them; that during a few months prior to plaintiff's injury plaintiff had often seen the watchman with his pistol in hand looking for rats and saying he was going to thin them out and get rid of them; that several times during this period plaintiff saw the watchman shooting at them; that during the four years' service of Lane, the watchman prior to Chartrand, he was seen with a 22 rifle shooting rats on the premises; and that a number of holes in the floor of the office and barn had been gnawed by the rats, and some of the holes were boarded up. The local manager of the plant who hired the watchman, in testifying for the defendants, said that when the watchman was employed "his duties were just to be on the ground there at night, looking out for thieves or trespassers or fires, or anything of that kind." When pressed on cross-examination as to what Chartrand's duties were, and if he was not placed there to protect the company's property, the witness took refuge in the statement that he was there "as a night watchman," and "to watch the plant; * * * I don't know as I went into details very much." Although Chartrand, in testifying for defendants, said he had no business shooting rats, "just thought I would shoot him [the rat], that was all," yet, on cross-examination, when asked what he was told were his duties, replied:

"Well, nobody ever told me just exactly what I should do. I supposed I was to watch the place and to see that nobody would steal or anything like that, or fire. I did not know myself. I never was no watchman in my life. Q. What was said by anybody — A. (interrupting). There was nothing said at all. They told me to watch the plant was all. * * * Q. When you were employed as watchman down there, I understand you to say that no specific instructions were given you except that you should go down there and look after the interests of the company at nighttime? That is about the substance of it? A. Well, that is what I supposed it to be; yes, sir."

It seems to us that in view of all that the evidence tends to show as above indicated, taken in connection with the well-known destructive agency of rats and their enormous power of increase and multiplication, it is a question for the jury to say whether the watchman was, at the time he fired the unlucky shot, performing a duty within the scope of his...