Healy v. Wrought Iron Range Co.

• Decision Date: 22 January 1912
• Citation: 143 S.W. 549
• Parties: HEALY et al. v. WROUGHT IRON RANGE CO.
• Court: Missouri Court of Appeals

143 S.W. 549

HEALY et al. v. WROUGHT IRON RANGE CO.

Kansas City Court of Appeals. Missouri.

January 22, 1912.

Rehearing Denied February 19, 1912.

1. MASTER AND SERVANT (§ 301)—LIABILITY TO THIRD PERSONS—ASSAULT BY SERVANT WHILE UNDER CONTROL OF ANOTHER.

Defendant corporation obtained a writ for the replevin of a stove, and the constable whose duty, under Rev. St. 1909, § 7763, it was to execute the writ, with two servants sent by defendant, went to plaintiff's house, and, while the servants were detaching the stove, one of them left the work and made an assault upon plaintiff. Held, that the servants were in control of the constable, and their acts were his acts, and for the time being they were his servants, and defendant was not liable for the assault.

2. ASSAULT AND BATTERY (§ 18)—CIVIL LIABILITY — PERSONS LIABLE — PERSON GIVING WRIT TO CONSTABLE.

Plaintiff in replevin, causing a valid writ of replevin to be put in the hands of a constable, did not thereby assume liability for an unlawful assault by the constable or his servants in executing the writ.

Appeal from Circuit Court, Jackson County; J. A. Guthrie, Judge.

Action by Annie Healy and another against the Wrought Iron Range Company. Judgment for plaintiffs, and defendant appeals. Reversed.

John F. Cell, for appellant. Ewing C. Bland and James P. Aylward, for respondents.

ELLISON, J.

Plaintiff brought this action, joining her husband as a party plaintiff. The action is based on a charge of malicious assault and battery, accompanied by abusive and profane words. She recovered judgment in the trial court for $1,000 actual and $7,000 punitive damages. The trial court suggested a remittitur of $5,000 of the punitive damages, which the plaintiff consented should be entered, and judgment was then rendered for $3,000, and defendant appealed.

There was evidence in plaintiff's behalf that two negroes in defendant's employ, or at least one of them, assaulted plaintiff and cursed and abused her. The facts leading up to the assault are substantially as follows: Defendant brought an action of replevin against plaintiff's husband before a justice of the peace for a cooking stove. The justice issued a writ to the constable, commanding him to summons the husband to appear for trial and to take and deliver the stove to defendant. The constable went to plaintiff's house, but the husband was absent. He notified plaintiff of his writ, and suggested that she could see defendant, and that she could put up a delivery bond. She said she would not, but would kill the first man who attempted to take the stove. The constable then left, and, having in mind that parties defendant in such cases frequently stopped proceeding by adjusting matters, went to defendant on the next day and asked if these parties had been in to see them. He was informed they had not. He was a witness for plaintiff, and was asked "how these men (the negroes) from the Wrought Iron Company happened to go with you to take the range," and he answered that "they were sent down there by the company." He was then asked, "Now, how did you happen to get them down there?" and answered, "I left word for them to meet me down there, for them (defendant) to send for the stove." There is no doubt that in compliance with this request defendant did send the two negroes in its employ with a wagon to get the stove. As expressed by one of the negroes, defendant's manager "told me to go with the constable and get the stove." The constable and the negroes went to the house. Plaintiff was on the porch, and, as soon as she saw the constable, she went in and locked the door. He demanded admittance, but could not get in. He then sent one of the negroes for a policeman, who came and also demanded that the constable be let in, but to no purpose. The constable then went to the back or kitchen door, and broke in. He then put the negroes to work detaching the stove from the gas and water pipes, preparatory to carrying it out to defendant's wagon. Plaintiff came into the kitchen exclaiming that she was going to call her husband. Then it was (according to the evidence for plaintiff, which we shall assume to be true) that one of the negroes left his work detaching the stove and assaulted and beat her. After the assault, the negroes carried the stove out to the wagon and took it to defendant. The testimony of different witnesses did not put the constable in the same place while the assault and battery was being committed; some of plaintiff's principal witnesses said he stood right by, while others stated he was outside the door. At any rate, he told the negroes what to do and "superintended the work" on the stove "as they were taking it down."

Liability in this case depends upon whose servants the negroes were in the particular work in hand when the assault was committed. In our opinion they were the servants of the constable. It was his duty, in obedience to the command of the writ of replevin, to take the stove "from the possession of the defendant and deliver the same to the plaintiff." Section 7763, R. S. 1909. Defendant was under no obligation to take the possession from plaintiff's husband; indeed, it would have been unlawful for it to have done so. Nor was there any duty or obligation to assist the constable. It was the constable's sole business to take the property from the premises and deliver it over to defendant. Therefore the acts of the negroes in taking the possession of the stove from plaintiff's husband were the acts of the constable, and not defendant. The acts were not done in the prosecution of the defendant's business, for the plain reason that it was not its business to take the...