Kansas City, Memphis & Birmingham Railroad Co. v. Southern Railway News Co.
| Citation | 52 S.W. 205,151 Mo. 373 |
| Parties | Kansas City, Memphis & Birmingham Railroad Company v. Southern Railway News Company, Appellant |
| Decision Date | 12 July 1899 |
| Court | United States State Supreme Court of Missouri |
Appeal from Jackson Circuit Court. -- Hon. John W. Henry, Judge.
Affirmed.
Wallace & Wallace for appellant.
(1) The defendant is not liable on the contract sued on for the reason that the newsboy was killed while acting as a lookout on plaintiff's train and while outside the line of his employment as news agent. (a) The engineer in charge of the train had authority under the circumstance of the case to call on the news agent for assistance. Sloan v Railroad, 62 Ia. 736; Church v. Railroad, 50 Minn. 220; Marks v. Railroad, 146 N.Y. 181; Railroad v. Probst, 85 Ala. 203; Railroad v Probst, 83 Ala. 525; Railroad v. Ginley, 45 S.W. 348; Railroad v. Carroll, 31 S.W. 132; Railroad v. Gallagher, 40 Oh. St. 637; Loughbridge 45 S.W. 907; Railroad v. McMurray, 98 Ind. 358; Railroad v. Smith, 121 Ind. 353; Railroad v. Taft, 28 Mich. 289; Elliott on Railroads, sec. 302. (b) If it should be held that the employment of the newsboy by the engineer was unauthorized, the defendant is still not liable. The contract of the news company was to save the railroad harmless from actions for damages or injury to the employees of the news company. This case does not come within the limits of that contract. At the time of the injury the newsboy was not acting for the defendant nor in the line of his employment. It is clear that the master can not be liable to the servant for injuries received while acting outside the scope of his employment and not in obedience to the master's orders. Church v. Mansfield, 20 Conn. 284; Mali v. Lord, 39 N.Y. 381; Wright v. Wilcox, 19 Wend. 343; McManus v. Crickett, 1 East, 106; Bard v. Yohn, 26 Pa. St. 482; Lee v. Nems, 57 Ga. 253; Adams v. Cost, 62 Md. 264; Caranah v. Dismore, 12 Hun. 465; Stenus v. Armstrong, 6 N.Y. 435; Brown v. Peveviance, 2 H. & G. 316; Stone v. Hills, 45 Conn. 44; People's Ice Co. v. Employer's Liability Co., 161 Mass. 122. (c) If the plaintiff's contention herein is correct, viz., that its engineer had no authority to request the newsboy to act as lookout, then the decedent was a volunteer who assumed a position of danger at the request of one of defendant's employees, and was one to whom the company owed no duty, and the railroad company was not liable for his death. Everhart v. Railroad, 78 Ind. 292; Flower v. Railroad, 69 Pa. St. 210; Welch v. Railroad, 86 Me. 552; Railroad v. Probst, 85 Ala. 203; Railroad v. Nichols, 8 Kan. 505; Railroad v. Skinner, 4 Tex. Cir. App. 661. (2) The contract sued on, in so far as it is relied on to protect or indemnify the plaintiff against the penalty which it incurred under the laws of Alabama through its negligence and wrongful act, is against public policy and void. This is so for two reasons: First, because the relation between the plaintiff and the news agent was that of common carrier and passenger; and, second, because the act of the State of Alabama creating the liability of the plaintiff if there was any, is a penal statute, the damages recoverable thereunder being punitive and not compensatory. Jones v. Railroad, 125 Mo. 666; Voight v. Railroad, 79 F. 561; Starr v. Railroad, 67 Minn. 18; Magoffin v. Railroad, 102 Mo. 540; Mellor v. Railroad, 105 Mo. 455; Railroad v. Kingman, 35 S.W. 264; Chamberlain v. Pierce, 87 F. 420; Railroad v. Shott, 92 Va. 34; Railroad v. Lockwood, 17 Wall. 357; Money v. Railroad, 49 Ill.App. 105; Delaney v. Robson, 5 Taunton, 605; Babcock v. Terry, 97 Mass. 482; James v. Herndon, 34 Ala. 488; Hayes v. Hayes, 8 La. Ann. 468; Rintout v. Railroad, 17 F. 905; Willock v. Railroad, 166 Pa. St. 184; Frost v. Plumb, 40 Conn. 111; Hall v. Corcoran, 107 Mass. 253; Welsch v. Wesson, 6 Gray, 505; Herrington v. Crawford, 136 Mo. 467; Parsons v. Randolph, 21 Mo.App. 353; Harrison v. McCluney, 32 Mo.App. 481. (3) If it should be admitted that the contract sued on is valid and that the news agent was killed under circumstances requiring the news company to indemnify the railroad company, the judgment of the circuit court is erroneous, nevertheless, for the reason that plaintiff's evidence showed that it comprised the claim made by the administrator without securing the consent of the defendant. There are two counts in plaintiff's petition and it should be noticed that the first count, the one on which the judgment was rendered, does not allege that the news company was notified of the suit in the city court of Birmingham. The plaintiff's own evidence showed that the news company was not notified of this suit, and further that the claim of the administrator was compromised and the suit in the city court of Birmingham (the suit in which the judgment was rendered) was brought after the settlement had been agreed on and was brought in order that a formal judgment might be rendered by consent of parties, which was done.
Pratt, Dana & Black for respondent.
(1) The only ground assigned by appellant for holding the contract invalid is that it was against public policy because, counsel say, it was an attempt by plaintiff to limit its liability as a common carrier. To this we answer that the contract made no attempt to limit such liability, as appears for at least two reasons: First, In making this contract plaintiff was not contracting as a common carrier. It was contracting as a private carrier, or bailee for hire, because it agreed by the contract to allow a business to be carried on upon its trains which it was not bound to consent to as a common carrier. Railroad v. Lockwood, 17 Wall. 357; Hutchinson on Carriers, secs. 44, 73, 77, 111. Having the right to refuse to perform the services requested by defendant, plaintiff had the right to contract for their performance as a private carrier and to impose such conditions as it saw fit. 4 Elliott on Railroads, p. 2173; Railroad v. Lockwood, supra; Railroad v. Wallace, 66 F. 506; Piedmont Mfg. Co. v. Railroad, 19 S.C. 353; Coup v. Railroad, 56 Mich. 111; Robertson v. Railroad, 156 Mass. 525; Liverpool Co. v. Phoenix Co., 129 U.S. 440; Railroad v. Keefer, 44 N.E. 796; Bates v. Railroad, 147 Mass. 265; Hosmer v. Railroad, 156 Mass. 507; Hartford Ins. Co. v. Railroad, 70 F. 201; Stephen v. Railroad, 41 P. 784; Brewer v. Railroad, 26 N.E. 324; Kenny v. Railroad, 26 N.E. 626. Second, The contract was not against public policy and not an improper one, because it was merely a contract of indemnity and insurance, by which plaintiff provided additional means and security for meeting the common-carrier obligations which might be imposed upon it in carrying out the terms of the agreement with defendant. Phoenix Ins. Co. v. Erie Co., 117 U.S. 324; Ins. Co. v. Compress Co., 133 U.S. 387; Railroad v. Mercantile Co., 34 A. 778; Railroad v. Guarantors' Indemnity Co., 37 A. 609; Donald v. Railroad, 61 N.W. 971; Johnson v. Railroad, 163 Pa. St. 127; Railroad v. Cox, 45 N.E. 641; Shaver v. Railroad, 71 F. 931. (2) The case having been tried without a jury, the findings made by the trial court are conclusive on this appeal if there is any evidence to sustain them. Stewart v. Wood, 63 Mo. 251; Williams v. Monroe, 125 Mo. 579; Pitts v. Sheriff, 108 Mo. 110. All the findings of the trial court had evidence to support them, and it follows therefore that all those findings are conclusive. This being so, the points made by appellant on which its argument is based (excepting only the question of the validity of the contract sued on, which was one of law) have no proper place on this appeal, because they were settled adversely to appellant's contention in the findings of facts made by the trial court.
On the 28th of December, 1889, the plaintiff and defendant entered into a written contract by which the plaintiff for and in consideration of the sum of $ 1,500, and of the covenants of the defendant therein contained, granted to said news company the privilege of selling upon its regular passenger trains during the year beginning January, 1890, "periodicals, newspapers, books, confections, fruits, cigars, cakes, pies and sandwiches," under certain conditions and regulations therein set out, said contract containing among others the following covenants upon the part of the defendant, to wit:
"And in consideration of the foregoing grant and the privileges therein specified said news company releases said railroad company from any right of action, claim or demand which may accrue to it by reason of the loss of any of its property while being transmitted on any of the trains of the railroad company under the terms of this contract, and further agrees for such consideration to indemnify said railroad company and save it harmless from all claims, demands, damages, actions, costs, and charges to which the railroad company may be subject or which it may have to pay by reason of any injury to any person or property, or loss of life or property, suffered or sustained by any agent or employee of the news company while in, upon or about any of the stations, platforms, cars or other premises of the railroad company, whether such injuries or loss arise from the negligence of the employees of said railroad company or otherwise."
This is an action for damages for breach of the second covenant aforesaid, in which the plaintiff recovered judgment in the circuit court of Jackson county, for the sum of $ 5,000, and the defendant appeals. The case was tried by the court without a jury, the court finding the facts to be as follows:
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