Kyle v. Postal Telegraph-Cable Company

• Decision Date: 11 April 1925
• Docket Number: 25,839
• Citation: 235 P. 116,118 Kan. 300
• Parties: MABLE KYLE, Appellant, v. POSTAL TELEGRAPH-CABLE COMPANY, Appellee
• Court: Kansas Supreme Court

235 P. 116

118 Kan. 300

MABLE KYLE, Appellant, v. POSTAL TELEGRAPH-CABLE COMPANY, Appellee

No. 25,839

Supreme Court of Kansas

April 11, 1925

Decided January, 1925.

Appeal from Wyandotte district court, division No. 3; WILLIAM H MCCAMISH, judge.

Judgment affirmed.

SYLLABUS

SYLLABUS BY THE COURT.

MASTER AND SERVANT--Liability for Injuries to Third Parties--Scope of Employment. In an action to recover for personal injuries sustained by being run into by a bicycle ridden by a messenger boy of a telegraph company, the proceedings examined, and held, that at the time of the injury the messenger boy was not under the control of his employer nor in the performance of the duties of his employment.

J. H. Brady, and T. F. Railsback, both of Kansas City, for the appellant; James T. Cochran, of Kansas City, of counsel.

John E. McFadden, O. Q. Claflin, Jr., both of Kansas City, Raymond E. Watson, John B. Gage, and Henry N. Ess, Jr., all of Kansas City, Mo., for the appellee.

OPINION

HOPKINS, J.:

The action was one for damages for personal injuries sustained by the plaintiff by being run into with a bicycle by Loraine Vandewalker, a messenger boy of defendant company. A motion for judgment by defendant, notwithstanding a general verdict for the plaintiff, was sustained, and plaintiff appeals.

The facts were substantially as follows: Loraine Vandewalker was a messenger boy for the defendant company, working from its substation near Eighth street and Minnesota avenue, Kansas City, Kan. He rode his own bicycle. The main office of the defendant company is at Eighth and Delaware streets, Kansas City, Mo., where reports from the substation are made, and communications sent each day in the regular course of business. The communications consist of messages and copies of messages received, and a summary report, detailing receipts, called a "check of the office." Vandewalker was under the authority and control of the operator in charge of the substation. His ordinary working hours were from eight in the morning until five in the afternoon, though it was his business to report back to his office after the delivery of any message, even though the time was later than five o'clock. When he first began work for the company he was instructed that the reports and communications from his office for the main office should be taken home in the evening, kept there over night, and delivered at the main office at eight o'clock the following morning. From there he would go to his own office, ordinarily arriving about 8:20. On the afternoon of Saturday, August 26, 1922, Vandewalker left his office about five o'clock and was going directly home. As was his custom, he had with him the reports for the main office for delivery the following Monday morning. At the intersection of Split-log avenue and Seventh street he collided with the plaintiff, causing the injury.

The question presented is whether, under the circumstances, the messenger boy at the time of the accident was acting within the scope of his employment. While he had upon his person reports and copies of messages...