Manson v. Wabash R. Co., 47343

• Decision Date: 11 July 1960
• Docket Number: No. 47343,47343
• Citation: 338 S.W.2d 54
• Parties: James MANSON, Appellant, v. WABASH RAILROAD COMPANY, A Corporation, and John E. Murphy, Respondents.
• Court: Missouri Supreme Court

Page 54

338 S.W.2d 54

James MANSON, Appellant, v. WABASH RAILROAD COMPANY, A Corporation, and John E. Murphy,

Respondents.

No. 47343.

Supreme Court of Missouri, En Banc.

July 11, 1960.

Rehearing Denied Sept. 12, 1960.

Sherman Landau, St. Louis, for appellant.

Ely & Voorhees, Fordyce, Mayne, Hartman, Renard & Stribling, Alphonso H. Voorhees, St. Louis, for respondents.

WESTHUES, Judge.

This case was tried in the Circuit Court of the City of St. Louis, Missouri. A trial resulted in a judgment for defendants. Plaintiff appealed. The case was argued and submitted to Division I of this court on September 30, 1959. In an opinion by Houser, C., the judgment of the trial court was reversed and the case remanded for a new trial. One of the judges of Division I dissented solely on the ground that plaintiff was not entitled to any relief. On transfer to the court en banc, the case was reargued and resubmitted on May 10, 1960.

The conclusion we have reached on resubmission, that is, that plaintiff is not entitled to recover any damages, renders unnecessary a consideration of a number of the points briefed and considered on the first submission, including the point on which the cause was remanded for retrial.

We shall quote and adopt a substantial portion of the opinion written on the first submission. To begin with, we quote and adopt the following:

'This suit as originally filed was an action by James Manson against Wabash Railroad Company, hereinafter 'Wabash,' Claude I. Gabbert, a private watchman for Wabash and John E. Murphy, Chief Special Agent for Wabash, in three counts, for (I) false arrest and false imprisonment, (II) assault and (III) malicious prosecution. Plaintiff prayed for $25,000 damages in each of the three counts. Claude I. Gabbert died before the case was tried. Plaintiff dismissed as to him, and amended the petition by striking out Court III. At the end of plaintiff's case the trial judge sustained a motion for a directed verdict as to defendant John E. Murphy. At the conclusion of the trial the jury returned a verdict for Wabash. Plaintiff appealed from the ensuing judgment.

'John E. Murphy died after the transcript on appeal had been filed in this court. Wabash suggested the death of Murphy and moved to abate this action on the ground that causes of action for assault and false imprisonment do not survive the death of the wrongdoer; that the liability asserted against Wabash is purely derivative in nature, based upon the acts and conduct of its employees Murphy and Gabbert under the doctrine of respondeat superior; that when Murphy and Gabbert died plaintiff's causes of action died not only as against them but also as against their employer.

'At common law actions in tort did not survive the death of either the wronged or the wrongdoer. State ex rel. National Refining Co. v. Seehorn, 344 Mo. 547, 127 S.W.2d 418; 1 Am.Jur., Abatement and Revival, Sec. 56; 1 C.J.S. Abatement and Revival Sec. 138. Under Sections 537.010 and 537.030 (all section citations refer to RSMo 1949, V.A.M.S.) which are declaratory of the common law, actions for assault and false imprisonment die with the wrongdoer. See Melvin ex rel. McVey v. Evans, 48 Mo.App. 421. Accordingly, plaintiff's causes of action against the individual defendants for assault and false imprisonment perished upon the deaths of Murphy and Gabbert. Did his causes of action against their employer, Wabash, likewise die with them? We think not. The death of one of two or more defendants does not cause a total abatement of an action where the right sought to be enforced survives against the surviving defendants. Sec. 507.100, subd. 1(2). The causes of action against Wabash survived against Wabash because the party who died (Gabbert) and the party 'surviving' (Wabash), master and servant, were jointly and severally liable for assault and false imprisonment committed by the servant in the scope and course of his employment. Blasinay v. Albert Wenzlick Real Estate Co., 235 Mo.App. 526, 138 S.W.2d 721; 1 C.J.S. Abatement and Revival Sec. 122, p. 171. Where there is joint and several liability the injured person may sue all defendants jointly, or either separately.'

The question of abatement was considered at length in the divisional opinion. We deem the portion quoted supra sufficient to dispose of the point and we overrule the motion to abate as to defendant Wabash.

The following is a statement of the facts as contained in the opinion on first submission. We are making a few changes and additions and therefore we shall not use quotation marks. Under an easement granted by the City of St. Louis in 1937 Wabash built a double set of railroad tracks through a cut across the northeast portion of Forest Park in that city. A telegraph cable, running along the tracks and about 18 feet from the tracks, was suspended from poles. A footbridge was erected over the tracks for pedestrian traffic. Within a space of 300 feet on either side of the footbridge numerous footpaths led down the embankmants on both sides of the cut and across the tracks. There were no 'no trespassing' or other signs warning against walking on or across the tracks. Defendant Murphy, Chief Special Agent for Wabash, was head of the railroad's private police force, and defendant Gabbert was a lieutenant therein. Gabbert also held a private watchman's license issued by the City of St. Louis 'to serve and act as private watchman' of the railroad and right of way within the limits of the city. Under his license he was entitled to carry a pistol during the actual time and on the premises where he was engaged in the duties of watchman. On May 30, 1951 plaintiff, a high school boy 16 years old, and his 14-year old friend Billy Barnard went to Forest Park seeking employment as caddies at the golf links in the park. The boys testified they had not caddied for several summers. Unable to find employment, they walked through the park, intending to arid home on a bus. They reached the footbridge. It was a hot day. Instead of crossing the bridge they took a path down the embankment and sat under the bridge in the shade for a while. There were trees nearby in the park but the boys chose the shade under the bridge. The boys then 'chinned' themselves on the telegraph cable which was within their reach. Plaintiff weighed 175 pounds and his companion weighed 170. Then they threw rocks at the cable, some of which hit the bridge. They sounded like somebody hitting the bridge with a hammer. (The boys claimed they simply flipped little pebbles with their thumbs, like shooting marbles.) Gabbert, who was patrolling the Wabash property in the park that day, heard some boys hollering. He was then about 300 feet from the footbridge. After he heard the boys' voices, he saw the telegraph pole and wire swinging or swaying back and forth. One boy was hanging on the cable, his whole body going up and down. After that boy jumped down the other jumped on. Gabbert testified that he saw both boys hanging from the cable at the same time. They were swinging back and forth and up and down. As Gabbert approached the footbridge, he heard rocks hitting the steel girders and abutment of the bridge. The boys were sitting on the rail, throwing rocks at the telegraph cable. A streamliner train was due there about that time. Gabbert approached the boys, held out both his railroad badge of authority and his private watchman's badge, and arrested them. Gabbert was armed, but did not point his gun at the boys or threaten to shoot them. (Plaintiff testified that Gabbert did not touch him but aimed his pistol directly at him and threatened to shoot the boys in the back if they ran.) Plaintiff testified that at the time Gabbert told plaintiff that he was under arrest for destruction of property and trespassing, 'approximately that.' Barnard, plaintiff's companion, testified that as they were walking toward Kingshighway with Gabbert, they stopped under a tree in the shade. Note what Baruard said occurred there:

'Q. And what happened under that tree? A. Well, he stopped us under that tree and told us that we would wait there, that he had already called the police car to come over and pick us up, so we waited around fifteen or twenty minutes and the police never showed up, so he told us we would just walk to the station. He said if you walk naturally no one would know that you had been pinched. We walked up to----

'Q. Did he make any other statement to you at that time? A. He told us if we tried to run he'd shoot us.'

Gabbert caused the boys to be taken to the 11th District Police Station in a city police squad car which was intercepted at Kingshighway. The boys were arrested at 3:15 p. m., turned over to the police at 3:45 and released from the station at 5:00 p. m., with orders to return to the station the next day. Thereafter they appeared in Juvenile Court. Gabbert testified that he was 'under orders from the Wabash Railroad to protect that property'; that he did not arrest Manson and Barnard at the specific request of Wabash, i. e., Wabash did not tell him to arrest these boys, but that his actions were done in the course of his employment, as a part of his duties and work for Wabash. The boys testified that no property was destroyed. Gabbert testified that he did not know whether the boys did any damage to the property or not. Wabash's expert engineer Koopman testified that the effect of the boys' hanging from the cable was the same as that produced when the cable swayed from wind or ice; that no one could tell whether there was damage, and it probably did not do any damage, but that hanging and swinging from the cable and the continual flexing of the cable would produce 'some weakening effect * * * some wear within the cable; * * * the more one swung or the longer that a person swung, greater number of flexures of course and the greater deterioration of the cable * * * some wearing out of the cable' and that 'maybe such an...