Lavender v. Illinois Cent. R. Co.

• Decision Date: 14 March 1949
• Docket Number: 41084
• Parties: Walter A. Lavender, Administrator of the Estate of Charles Lee Hunter, Deceased, (Plaintiff) Appellant, v. Illinois Central Railroad Company, a Corporation, (Defendant) Respondent
• Court: Missouri Supreme Court

219 S.W.2d 353

358 Mo. 1160

Walter A. Lavender, Administrator of the Estate of Charles Lee Hunter, Deceased, (Plaintiff) Appellant, v. Illinois Central Railroad Company, a Corporation, (Defendant) Respondent

No. 41084

Supreme Court of Missouri

March 14, 1949

Motion for Rehearing or to Transfer to Banc Overruled April 11 1949.

Appeal from Circuit Court of City of St. Louis; Hon. David J Murphy, Judge.

Affirmed.

N Murry Edwards and Ninina M. Edwards, Jr., for appellant.

(1) Charles Lee Hunter, the deceased, and the other waiters of defendant who negligently caused him to be shot were working in defendant's dining car bedding down under orders of the defendant and therefore were all working as servants of the defendant within the scope of their employment and in the line of their duties at the time Hunter was shot. The defendant was liable for the acts of the waiters in negligently causing Hunter to be shot. St. Louis Southwestern Ry. Co. v. Brothers, 165 S.W. 488; Lamphere v. Oregon R. & Nav. Co., 196 F. 336; Brock v. Chicago, R.I. & P. Ry. Co., 305 Mo. 502, 266 S.W. 691. (2) Plaintiff's petition charged negligence and the evidence showed Hunter, the deceased, was shot through the negligence of the defendant's dining car waiters while they were working and bedding down under orders of the defendant within the scope of their employment and in the line of their duty. Defendant was liable for the negligent acts of its waiters even if they amounted to an assault upon Hunter in causing him to be shot. The trial court therefore erred in holding there was not sufficient evidence to submit the question of negligence to the jury. Baker v. Chicago, B. & Q.R. Co., 39 S.W.2d 535, 327 Mo. 986; Jamison v. Encarnacion, 281 U.S. 635, 74 L.Ed. 1082, 50 S.Ct. 440; Fletcher v. Balt. & P.R. Co., 168 U.S. 135, 42 L.Ed. 411, 18 S.Ct. 35; O'Brien v. St. Louis Transit Co., 185 Mo. 263. (3) There was sufficient evidence to submit to the jury the question as to whether the defendant was negligent in failing to furnish Hunter with a reasonably safe place to work, which in part caused Hunter to be shot and injured. The court therefore erred in sustaining defendant's motion for a judgment notwithstanding the verdict and in setting aside the judgment in favor of plaintiff on the grounds that there was no evidence on which to submit the question to the jury. Lillie v. Thompson, 332 U.S. 459, 68 S.Ct. 140; Lavender v. Kurn, 327 U.S. 645, 66 S.Ct. 740; Griffin v. Baltimore & O.R. Co., 122 S.E. 912; Myers v. Pittsburgh Coal Co., 233 U.S. 184; Anderson v. Atchison, T. & S.F. Ry. Co., 68 S.Ct. 854; Wilkerson v. McCarthy, 69 S.Ct. 412.

Watts & Gentry for respondent; C. A. Helsell and John W. Freels of counsel.

(1) The decedent was fatally wounded as the result of horseplay on the part of two waiters who had departed from the discharge of their duties as servants of the railroad and were engaged in a matter pertaining solely to their own pleasure and amusement and which had no tendency whatever to further the master's business. It has long been the established rule in Missouri, and generally throughout the country, that before a master can be held liable for an act of his servant, it must be shown that the servant was acting in the scope of his employment and in furtherance of the master's business. Failure to make such proof has always been held fatal, no matter whether a case was based on a violation of a state statute or a federal statute or common law negligence. Canton Cotton Warehouse Co. v. Tool, 78 Mass. 147; Gens v. Wagner Elec. Co., 31 S.W.2d 785, 326 Mo. 503; Galveston & C.R. Co. v. R. Co., 162 F.2d 110; Milazzo v. K.C. Gas Co., 180 S.W.2d 1; Jackson v. Railroad, 178 F. 432; Rohrmoser v. Household Finance Corp., 86 S.W.2d 103, 231 Mo.App. 1188; Phillips v. Western Union Tel. Co., 270 Mo. 678, 195 S.W. 711; Bowen v. I.C., 136 F. 306; Evers v. Krouse, 58 A. 181; Johnson v. Railroad, 141 N.W. 430, 157 Iowa 730; Texas Breeders' Assn. v. Blanchard, 81 F.2d 382; Railway Express Co. v. Tate, 100 So. 328; Novelty Theater Co. v. Whitcomb, 44 Colo. 110, 37 L.R.A. (N.S.) 519; Sloven v. L. & N.R. Co., 115 Ky. 447, 74 S.W. 171; Priest v. Woolworth etc. Co., 62 S.W.2d 926; Dewing v. N.Y.C.R.R., 183 N.W. 754; I. & G.N.R.R. v. Cooper, 32 S.W. 577 (2) The following cases hold the same rule applicable to cases brought under the Federal Employers' Liability Act. Osment v. Pitcairn, 159 S.W.2d 666, 349 Mo. 137; Davis v. Railroad Co., 260 U.S. 349; A. Coast Line v. Southwell, 48 S.Ct. R. 25; Sheaf v. St. L., St. P. & S.S.M.R. Co, 162 F.2d 110; Wolfe v. Henwood etc., 162 F.2d 998; Ellis v. Union Pac. R.R. Co., 67 S.Ct. 998; Myers v. Reading Co., 67 S.Ct. 1338; Eckenrode v. Pa. R. Co., 69 S.Ct. 91, affirming 164 F.2d 996. (3) There never was any contention that an assault was involved in this case; and there was no assault. Therefore, the cases cited by appellant holding that an assault by a superior to enforce his orders while directing the work have no application here. (4) The safe place rule has no application here. A master cannot be held liable for furnishing an unsafe place to work unless he has either actual or constructive notice that the place is not reasonably safe. The safe place rule refers to the physical structure of the place, not to transitory and unforeseeable dangers. 39 C.J. 345, Illinois and Missouri cases 347.

OPINION

Conkling, J.

Plaintiff, administrator of the estate of Charles Lee Hunter, a former employee of defendant, had a judgment for $ 15,000 upon the verdict of a jury in an action under the Federal Employers' Liability Act for damages for the alleged wrongful death of Hunter. The trial court thereafter sustained defendant's motion for judgment notwithstanding the verdict. Judgment was then entered for defendant. Plaintiff appealed and asks that his judgment be reinstated.

Hunter, a negro dining car waiter regularly employed by defendant, died about 30 hours after being shot while in defendant's dining car with a revolver held by another of defendant's dining car waiters, one McCampbell. The unfortunate occurrence happened as defendant's interstate train number 9 was leaving Chicago, Illinois, for the State of Florida, about 11:30 P.M., on March 28, 1942.

It was the theory of plaintiff's petition that defendant was negligent, in that, (1) its dining car crew negligently carried loaded pistols into the dining car and negligently caused a loaded pistol to be discharged while Hunter was nearby, (2) that defendant's dining car crew negligently pushed and shoved each other in a scuffle and negligently caused a loaded pistol to be discharged, and (3) that defendant negligently failed to furnish Hunter with a reasonably safe place to work in that defendant negligently permitted waiters to carry loaded pistols into the dining car and to scuffle, wrestle, push and shove each other while Hunter was working nearby. Plaintiff submitted the above theories to the jury in his instructions 1 and 2.

Deceased was 18 years of age, unmarried and was survived by his parents and brothers. With others of his regular dining car crew (six waiters and four cooks -- all negroes) he had worked into Chicago that evening arriving there about 9 P.M., on his regular dining car attached to one of defendant's trains, "The Sunchaser". During the short stay in Chicago Hunter had gone with McCampbell and one Peyton, another waiter of his regular dining car crew, to see some of McCampbell's friends. As permitted by defendant those three waiters, about 11:17 P.M., boarded their dining car at the 63rd Street Station as train No. 9 was leaving Chicago. This particular dining car crew were under orders from defendant to leave Chicago on train No. 9, "bed down" in their dining car, "dead-head" to Fulton, Kentucky, arise at 5 A.M., (near Cairo, Illinois) and start serving breakfast at 6 A.M., at Fulton. They were not paid for the time from Chicago back to Fulton. When they reached Chicago this crew left their baggage in the locker room of the dining car. They were under orders from their superintendent that when the train left Chicago on their extra movement they were to remove the tables from the dining car, place cots on the floor, change clothes and sleep until 5 A.M. Upon arising the cots were to be put away, tables replaced and preparations made for serving the morning meal at 6 A.M.

When Hunter, McCampbell and Peyton boarded the train at 63rd Street some of the tables had not been removed. McCampbell went to the locker room in the dining car, secured his handbag, brought it into the dining car proper and placed it on a table. Peyton did likewise. The train was moving south. McCampbell stood facing south. Peyton stood directly across the table from him facing north. Hunter was northwest of McCampbell and across the car. McCampbell testified Peyton had a gun in his hand. Only McCampbell saw Peyton have a gun. McCampbell took a loaded pistol out of his side overcoat pocket and started to place it in his handbag to put it away. Some of the waiters on the car started playing with each other, slapping and "goosing", in play. McCampbell testified that Peyton playfully "started pranking with his (gun) and when he hit my hand my gun went off and hit Charles (Hunter)"; that Peyton "started pranking" and either grabbed his (McCampbell's) gun or pushed it around about two feet so that it was pointing northwest from McCampbell. McCampbell's gun was accidentally discharged. The bullet struck Hunter in the chest. When he was shot Hunter was some distance away across the dining car sitting on a table and laughing. Hunter had nothing to do with a gun. Neither McCampbell nor Peyton had any intention of shooting Hunter, or any one else. McCampbell, Hunter and Peyton were good friends....