Kastrup v. The Yellow Cab and Baggage Company

• Decision Date: 07 December 1929
• Docket Number: 28,801
• Citation: 282 P. 742,129 Kan. 398
• Parties: HARRY F. KASTRUP, Appellee, v. THE YELLOW CAB AND BAGGAGE COMPANY, Appellant
• Court: Kansas Supreme Court

282 P. 742

129 Kan. 398

HARRY F. KASTRUP, Appellee, v. THE YELLOW CAB AND BAGGAGE COMPANY, Appellant

No. 28,801

Supreme Court of Kansas

December 7, 1929

Decided July, 1929.

Appeal from Shawnee district court, division No. 3; OTIS E. HUNGATE judge.

Judgment reversed and cause remanded.

SYLLABUS

SYLLABUS BY THE COURT.

MASTER AND SERVANT -- Liability for Torts of Servant -- Implied Authority -- Ratification. The Yellow Cab and Baggage Company's superintendent of cab drivers had authority to hire and discharge cab drivers. When a cab driver was hired the regulations required the superintendent to take from the driver a cash deposit of fifteen dollars to secure the company against loss from careless driving. The superintendent hired a driver who could not make the required deposit, and in lieu of the deposit the superintendent accepted the driver's post-dated check for the amount. The driver had an accident and was discharged. He stopped payment of the check, and in an effort to collect the amount of the check for the company from the driver the superintendent assaulted and beat the driver. The company retained the superintendent in its service. Held, the superintendent did not have implied authority to administer the beating, and the company did not ratify the superintendent's unauthorized act.

Guy L. Hursh, of Topeka, for the appellant.

Thomas F. Doran and C. B. Randall, both of Topeka, for the appellee.

OPINION

BURCH, J.

The action was one by Harry F. Kastrup, a discharged cab driver, against the Yellow Cab and Baggage Company, to recover damages for battery inflicted on Kastrup by the company's superintendent of cab drivers. Plaintiff recovered, and defendant appeals.

The business of the company is sufficiently indicated by its name. Roy Payne was manager of the company. Charles E. Holman was secretary and treasurer. Earl Harris was superintendent of cab drivers. Max Dooley was manager of the transfer department. Lawrence Heil was a dispatcher. Al Bigley was shop foreman. Harris received his instructions from Payne, and had authority to hire and discharge cab drivers. When a cab driver was employed he was required to give a cash bond in the sum of fifty dollars to protect the company against loss. Usually applicants could not give the bond, and in order to keep a full crew of cab drivers the rule was relaxed. An applicant was allowed to make a deposit of fifteen dollars, to be turned over to the treasurer, and the remainder of the security would be taken out of his wages.

In the latter part of December, 1923, Harris hired Kastrup as a cab driver. Kastrup could not make the required fifteen-dollar cash deposit, and Harris took Kastrup's post-dated check to the company for the amount. Harris did not deliver the check to Holman. One of the regulations was that a cab driver should not be permitted to operate a cab until he had given bond. When Kastrup's run-sheets commenced to come in Holman noted that he had no bond for that driver, and Holman inquired of Harris concerning Kastrup's bond. Harris then told Holman about taking the post-dated check.

Kastrup worked until January 9, 1924. During the period of his employment he had two inconsequential accidents. About 2:30 o'clock in the morning of January 9 he collided with a telephone pole and broke the fender and bent the front axle of his cab. He drove the cab in, took out another, and worked until about 10:30 in the forenoon of the same day. When he went off duty he went to his room in the Y. M. C. A. building to sleep. Before leaving he had some conversation with Harris about the accident. Harris said Kastrup should call him when Kastrup waked up. On the afternoon of the 9th Kastrup called Harris by telephone to find out when he should return to work, and Harris said his services were no longer needed. Harris visited Kastrup in his room at about 10 a. m. of the 10th. In the meantime Kastrup stopped payment of the check, and Harris had been to the bank and learned that payment had been stopped. A conversation occurred in which Kastrup was asked to pay the check, and he refused to do so. Harris suggested they go to the office and talk to Holman, and they did so. Kastrup said he would not pay the check, but he was willing to pay the amount of the damage to the cab, and he wanted an itemized statement. It was not feasible to make an itemized statement at that time, and Holman or Harris suggested that Harris see the county attorney with respect to the post-dated check. The witnesses agree that Harris said he was going to the county attorney's office, went to his car, which was in the garage adjoining the office, and made a final inquiry of Kastrup whether he would pay the check. Witnesses disagree with respect to what then occurred. Kastrup testified as follows:

"He got into his car, and said, 'This is your last chance.' I made the suggestion that I would go along with him. I felt I was in the right, and he said he didn't want me to go along, and then I told him I would be at the Y. I was something like six feet from him when we had this conversation. I did not at any time get up on the running board of the car or stand on the running board, nor try to get into the car, nor have any scuffle or contest with Harris while he was in the car. When I told Harris that I would be at the Y, I turned to leave, and then I know there was a sudden jar. I came in contact with something. Following that I knew that something was wrong, that I was hit or something. I didn't know anything else that happened."

A cab driver, Oscar Brown, who said he left the company by virtual discharge some time after the altercation, corroborated Kastrup with respect to the striking of the first blow, and said Kastrup did not strike back. Brown described the battery as one of the utmost vindictiveness and brutality, and testified that in the course of it Harris said three times, "Are you going to make it good, going to make the check good?" Dudley Wilson, another former cab driver, corroborated Brown's account of the beating.

Harris testified as follows:

"After I said I was going to the county attorney's office, I again asked Kastrup if he was going to pay the check, and he said no. I then went out and got into my car. Kastrup followed me, and came out to the car and started to get in. I told him I was going to the county attorney's office, and he said he was going along, and I said he couldn't. He was then standing by the car. We started swearing at one another. He got upon the running board of the car, took hold of me, and started hitting me in the head, and we started fighting, and I was down behind the wheel. I turned him out, and he was hanging on me, and we came out of the car and kept on fighting on the floor. He struck at me and hit me. We fell to the pavement and rolled around, and he got hold of my privates and I tried to knock him loose. He turned loose finally, and Al Bigley, the mechanic, helped me up."

Holman, Heil and Bigley corroborated Harris with respect to the beginning of the fight and other details. Dooley was at the dispatcher's desk. He said he heard a noise, looked through the glass partition between the office and the garage, and saw Harris and Kastrup fighting. They were on the floor, hitting each other.

Kastrup received personal injuries, and the jury returned a verdict in his favor for $ 4,500. With the verdict the jury returned the following special findings of fact:

"Q. 2. In using whatever force he may have used, did Earl Harris do so in an effort to collect the amount of the $ 15 check which plaintiff had executed? A. Yes.

"Q. 4. Was Earl Harris expressly authorized by the defendant to use force in collecting the amount of the check from plaintiff? A. Not directly, but implied.

"Q. 5. If you answer No. 4 in the affirmative, then state by whom and in what manner Earl Harris was expressly authorized to use force in collecting the check from plaintiff. A. By the authority given him as agent for the company.

"Q. 6. Was Earl Harris authorized by defendant company in any manner to use force in collecting the amount of the check from plaintiff? A. So implied.

"Q. 7. If you answer No. 6 in the affirmative, then state in what manner Earl Harris was authorized by defendant to use force in collecting the amount of check from plaintiff. A. They condoned his act by retaining him in their employment and subsequently promoting him.

"Q. 9. In using whatever force he may have used, did Earl Harris do so for the purpose of collecting the amount of the check given by plaintiff for the defendant? A. Yes."

The company demurred to plaintiff's evidence, moved for an instructed verdict, moved to set aside all the foregoing special findings, and moved for a new trial on all the statutory grounds. The demurrer was overruled, the motions were denied, and judgment was rendered for Kastrup.

The case was here once before: Kastrup v. Yellow Cab and Baggage Co., 124 Kan. 375, 260 P. 635. At the first trial the jury returned a verdict for Kastrup. The district court set the verdict aside and granted a new trial because the jury had not been properly instructed. Kastrup appealed, and the company noted a cross appeal. This court declined to interfere, and summarized its conclusions in the first and third paragraphs of the syllabus:

"In an action to recover damages from a principal and master because his agent and servant in endeavoring to collect a claim from another assaulted and beat him, the court in a specific instruction left out the essential element that the liability of the principal and master depended upon whether the agent, when he committed the assault, was acting within the scope of his authority expressly conferred on him by his principal or fairly...