Maniaci v. Interurban Express Co.

• Citation: 182 S.W. 981,266 Mo. 633
• Parties: FRANK MANIACI, Appellant, v. INTERURBAN EXPRESS COMPANY
• Decision Date: 09 February 1916
• Court: United States State Supreme Court of Missouri

182 S.W. 981

266 Mo. 633

FRANK MANIACI, Appellant, v. INTERURBAN EXPRESS COMPANY

Supreme Court of Missouri

February 9, 1916

Appeal from St. Louis City Circuit Court. -- Hon. Daniel D. Fisher Judge.

Reversed and remanded (with directions).

George H. Moore and Frank A. Thompson for appellant.

(1) The master is liable even for the wanton and malicious acts of the servant if done in the scope of his employment. 2 Mechem on Agency (2 Ed.), 1522; Richberger v. Express Co., 73 Miss. 161, 31 L. R. A. 390; 6 LaBatt's Master & Servant (2 Ed.), sec. 2239a; Chicago Ry. Co. v McMahon, 103 Ill. 485; Haehl v. Railroad, 119 Mo. 325; Bouillon v. Gas Light Co., 148 Mo.App. 462; Express Co. v. Sobel, 125 S.W. 925; Railroad v Hack, 66 Ill. 238; Amusement Co. v. Martin, 62 So. 404; Bergman v. Hendrickson, 106 Wis. 434; Fishing Club v. Stewart, 9 L. R. A. (N. S.) 475. (2) It is an act of negligence upon the part of the principal to employ as an agent and place in charge of his premises or business one whom he knows or by the exercise of reasonable care should know to be a person of violent passions and ungovernable temper and a dangerous man. Dean v. Depot Co., 41 Minn. 360, 5 L. R. A. 442; 6 LaBatt's Master & Servant, 6676; Wanstall v. Pooley, 6 Cl. &. F. (Q. B.) 910; Christian v. Railroad, 79 Ga. 460; Railroad v. Hackett, 58 Ark. 381, 41 Am. St. 105; Carson v. Canning, 180 Mass. 461; Railroad v. Day, 34 L. R. A. 111; Richberger v. Am. Ex. Co., 73 Miss. 161, 31 L. R. A. 490; Express Co. v. Sobel, 125 S.W. 925. (3) Public service companies who invite the public to become their patrons owe a duty to such members of the public as accept their invitation to protect them from misconduct on the part of the servants and employees of said companies. The tendency of the most recent decisions is to hold the master to a stricter rule of liability rather upon the ground of a special duty toward the injured party being violated than upon the principle of respondent superior. 6 Labatt's Master & Servant (2 Ed.), 6878; Dickson v. Waldron, 24 L. R. A. 483; 1 Jaggard on Torts, 263; Mallach v. Ridley, 9 N.Y.S. 922; Amusement Co. v. Martin, 62 So. 404; Swinarton v. Le Boutillier, 7 Misc. N. Y. 639, 148 N.Y. 752; Express Co. v. Sobel, 125 S.W. 925; Richberger v. Express Co., 73 Miss. 161, 31 L. R. A. 390; Dean v. Depot Co., 41 Minn. 360, 5 L. R. A. 442.

H. R. Small for respondent; Fred Tecklenberg of counsel.

(1) While a demurrer admits as true all material facts which are well pleaded in the petition, it does not admit conclusions of law. Pattison's Code Pleading (2 Ed.), secs. 925, 926. (2) The allegation of the amended petition that the servant was, in shooting plaintiff, acting "within the scope of his employment" is an allegation of a legal conclusion. Snyder v. Railroad, 60 Mo. 413; Pattison's Code Pleadings (2 Ed.), sec. 435; Johannson v. Fuel Co., 72 Minn. 409. (3) The master, while now held liable civilly to third persons for the servant's intentional wrongs committed "within the scope of the servant's employment" is not liable for the servant's intentional wrongs committed outside the scope of the servant's employment. 6 Labatt, Master and Servant, sec. 2244; Whiteaker v. Railroad, 252 Mo. 438. (4) An assault on a debtor by a servant employed to collect debts is outside the scope of his employment. Collette v. Rebori, 107 Mo.App. 711; Milton v. Railroad, 193 Mo. 58. (5) Shooting is ordinarily outside the scope of a servant's employment and is only in exceptional cases within it. Mechem on Agency (2 Ed., 1914), sec. 1979; 26 Cyc. 1541. (6) The petition does not state a cause of action because (while it states facts that would make the servant liable) it states no facts which justify holding defendant as master liable for the shooting. On the contrary, the shooting under the facts alleged is shown plainly to be outside the scope of any employment or employment duty stated in the petition. The only duties at all inferable even from the petition are those incident to the employment of one in charge of an office and the duty to secure a receipt for goods previously delivered by defendant to plaintiff. It was not within the scope of such employment or employment duties to suddenly, without warning, without just cause or provocation, wilfully, wantonly, maliciously and unlawfully shoot plaintiff twice. Snyder v. Railroad, 60 Mo. 413; Whiteaker v. Railroad, 252 Mo. 457; Collett v. Rebori, 107 Mo.App. 711; Bowen v. Railroad, 136 F. 306, 70 L. R. A. 915; Milton v. Railroad, 193 Mo. 58. (7) The wrong perpetrated must be shown to pertain to the particular duty of the servant to make the master liable. Farber v. Railroad, 116 Mo. 94. (8) The act of shooting under the allegations of the petition cannot "fairly be regarded as a natural incident to, a direct outgrowth of, a natural ingredient in the execution of the service which the master confided to the servant" in the case at bar. Mechem on Agency (2 Ed.), sec. 1962. (9) From appellant's second point it appears that by the second count and by the additional matter contained in the second count appellant now asserts he charged defendant with negligence in employing the agent and keeping him in charge of its office. If this be true, asserting negligence and intentional wrong in the second count renders it a felo de se. If the act was careless or negligent, it was not wilful, and vice versa. Raming v. Metropolitan Street Railway Co., 157 Mo. 507. But it appears plaintiff did not charge defendant with negligence, but simply alleged knowledge of the servant's propensities in order to aggravate, increase and to justify punitive damages on account of the wilful wrong of the servant. (10) Missouri law and the weight of authority is against the contention made in appellant's third point. 6 LaBatt, Master and Servant, sec. 2244; Mechem on Agency (2 Ed.), secs. 1963-1969; Collette v. Rebori, 107 Mo.App. 711; Bowen v. Railroad, 136 F. 306.

RAILEY, C. Brown, C., not sitting. Graves and Bond, JJ., concur; Faris and Revelle, JJ., concur in result; Woodson, C. J., dissents in separate opinion, in which Blair, J., concurs; Walker, J., dissents.

OPINION

In Banc.

RAILEY C.

-- This action was commenced in the circuit court of the city of St. Louis on March 16, 1912; and afterwards on the 18th day of October, 1912, and during the October term of said court, an amended petition in two counts was filed in said cause, which, without caption and signatures, reads as follows:

"Plaintiff states that defendant is and was at all times hereinafter mentioned a corporation duly incorporated under the laws of the State of Illinois and doing business in the State of Missouri; that on and about the first day of February, 1911 defendant was engaged in and carrying on an express business as a common carrier of freight; that defendant had and maintained an office in the city of Edwardsville, Illinois; that said office was in charge of one Harry Joiner, who was the agent and servant of defendant, that defendant was at said time a merchant in said city of Edwardsville; that several days previous to the said first day of February, 1911, defendant in its capacity as a common carrier delivered to plaintiff a consignment of fruit, and that plaintiff refused to sign a receipt for same until the said Harry Joiner, the agent and servant of defendant, had agreed to present plaintiff's claim for an allowance for a shortage in the consignment; that upon the said first day of February, 1911, the said Harry Joiner, defendant's agent and servant, telephoned to plaintiff to come to the office of defendant for the purpose of discussing a settlement of the matter; and in response to said message plaintiff started to defendant's office as requested by defendant's servant; that near the office plaintiff met defendant's servant, the said Joiner, who demanded that plaintiff then and there sign a receipt for the said consignment of fruit; that plaintiff under protest started to comply with said demand and was in the very act of signing the receipt when the said Harry Joiner, being at the time the employee, agent and servant of the defendant company and acting within the scope of his employment as such agent and servant, did suddenly and without warning draw a pistol and without just cause or provocation wantonly, maliciously and unlawfully shoot plaintiff twice, wounding him in the breast and shoulder.

"Plaintiff states that as a direct result of said injuries and assaults he suffered great bodily and mental pain and was confined to a hospital by reason thereof for a long period of time, to-wit, for the period of about one month, and thereafter was confined at his home to his bed and room for the period of about one month; that by reason of said injuries he was disabled and prevented from attending to his business and affairs for the space of about seven months; that he has suffered and will continue to suffer great bodily pain, annoyance, inconvenience and expense; that as a direct result of said injuries and assault he was compelled to procure and did procure necessary medical attention and treatment, which were then necessary, and still are, and will continue to be necessary for an indefinite period, and that on account of said services alone he has been put to the expense of about the sum of three hundred dollars.

"Plaintiff states that by virtue of the premises, he has been injured and damaged in body, mind, health, pain and suffering and loss of time and necessary expenses in the sum of ten thousand dollars actual damages and ten thousand dollars punitive damages, for both of which amounts, together with the costs in this behalf expended, plaintiff prays judgment.

"2.

"For a second cause of action, plaintiff states that defendant is and was at all...