Milazzo v. Kansas City Gas Co.

• Decision Date: 03 April 1944
• Docket Number: No. 38786.,38786.
• Citation: 180 S.W.2d 1
• Parties: MILAZZO v. KANSAS CITY GAS CO.
• Court: Missouri Supreme Court

180 S.W.2d 1

MILAZZO v. KANSAS CITY GAS CO.

No. 38786.

Supreme Court of Missouri, Division No. 1.

April 3, 1944.

Rehearing Denied May 2, 1944.

Appeal from Circuit Court, Jackson County; Albert A. Ridge, Judge.

Action by John A. Milazzo against Kansas City Gas Company for damages arising out of an assault and battery committed upon plaintiff by one of defendant's servants. A verdict for defendant was set aside and new trial granted because of error in giving an instruction, and defendant appeals.

Reversed and remanded, with directions to reinstate verdict and enter judgment thereon for defendant.

Charles M. Miller, of Kansas City, for appellant.

Harrison Johnston and John C. Nipp, both of Kansas City, for respondent.

DALTON, Commissioner.

Action for damages in the sum of $10,400 on account of an assault and battery by one of defendant's meter readers. A verdict for defendant was set aside and a new trial granted "because of error in giving defendant's instruction G." Defendant has appealed.

Plaintiff operated a liquor, grocery and delicatessen store in Kansas City. In the store basement were several gas meters, including one for plaintiff's two-room apartment, adjoining the store. Defendant was furnishing gas service and the meters had been taken in the name of plaintiff's wife, who with her brother had operated the store prior to her marriage to plaintiff. On the morning of March 26, 1941, defendant's meter reader, Horace Kreeger, wearing defendant's regulation uniform and badge, came to read the meters. He knew where the meters were located, since he had read them on other occasions.

When Kreeger entered the store and started for the basement, plaintiff was behind the counter reading a newspaper. Kreeger did not speak, but plaintiff saw Kreeger come in, walk around the counter, pass behind plaintiff and start for the basement. Plaintiff presumed he intended to read the gas meters and turned and said: "Say, are you the man that comes in my store and reads my meter all the time?" Kreeger answered, "yes," and plaintiff then said, "What is the reason why my bill is always the same whether I use it or not? My wife and I have been away and we haven't used it for two or three weeks and we still get the same reading. Are you sure you are reading it correctly?" Kreeger answered, "God damn right, you bastard, what do you think?" Kreeger proceeded on and down the basement steps. Plaintiff spoke to one of his employees in the store, and said, "Did you hear what he said, Paul?" Plaintiff did not read the newspaper further, but stayed where he was, waiting for Kreeger to return.

When Kreeger came upstairs, plaintiff said to him, "What do you mean coming into my place of business calling me a bastard? I am going to report you to the Gas Company and furthermore don't you ever step into my place of business any more." Kreeger answered, "God damn you and your filthy God damn store, I don't want to come back in here. Furthermore, you step from behind the counter and I will show you something."

Plaintiff testified that he did not know what Kreeger wanted, but thought he had something to show him; that plaintiff thought he could get some information, since Kreeger had a book in his hands; that plaintiff didn't go out to fight; that he didn't see the flashlight or expect Kreeger to hit him, until Kreeger struck him; and that plaintiff merely went out there to see what Kreeger had to show him. In any case, plaintiff went out from behind the counter and, looking at and watching Kreeger, he had walked (some ten feet) to within two or three feet of Kreeger, when Kreeger pulled a flashlight out of his back pocket and struck plaintiff across the face injuring him. Kreeger continued striking plaintiff and plaintiff "slung at him two or three times to try to get away." When the fight was over, plaintiff said to Kreeger, "Listen, I have got a .38 pistol, I could blow your brains out for hitting me with that flashlight, but I am not that kind of a man, I don't want to get in no trouble, but the Gas Company is going to pay and pay dearly for this." Kreeger picked up his hat and book from the floor and said: "Do as you damn please," and left.

Plaintiff was corroborated by several witnesses, two of whom further testified that a few minutes after the fight started plaintiff said to Kreeger, "I have had enough" and the fight stopped. One of plaintiff's witnesses testified that Kreeger told plaintiff "if he didn't like what he (Kreeger) said to step from behind the counter and he would show him something."

Plaintiff had, previous to the trial, taken Kreeger's deposition and, since Kreeger was away in military service, plaintiff attempted to offer parts of the deposition, but it was all received in evidence, and plaintiff read parts of it and defendant the remainder. Kreeger denied that he called plaintiff a bastard, commented on plaintiff's store, or invited plaintiff to come out from behind the counter. Kreeger's memory concerning what was said appeared to be rather hazy, but he insisted he told plaintiff to see the company about the gas bill. He further testified that after plaintiff's first inquiry, plaintiff called him a "God damn liar," got a beer bottle and followed him to the basement; that he told plaintiff he had better get back upstairs and plaintiff went back; that, when he (Kreeger) came up from the basement, plaintiff started the argument again and accused Kreeger of calling him a bastard; that plaintiff followed him nearly to the front door and then struck him in the face; that he (Kreeger) merely defended himself, dropped his flashlight and book to the floor and struck back at plaintiff with his fists; and that, after the fight, he asked the names of witnesses in the store and then picked up his hat, book and flashlight and left.

There was evidence that Kreeger's primary duty was to take the readings of defendant's gas meters, but when customers asked questions, he was supposed to answer them and give the readings when requested. He was instructed to be courteous at all times and answer questions concerning the readings of meters. All meter readings were turned in to the company office each day. Plaintiff had no contractual relationship of any kind with defendant, since all meters were taken in the name of plaintiff's wife and all statements for service were sent to her. Defendant offered no evidence.

We are first confronted by respondent's motion to affirm the judgment on account of matters which, in effect, were before this court when it considered and overruled appellant's motion to continue the cause and respondent's motion to dismiss this appeal. Accordingly, the motion to affirm the judgment is overruled.

Appellant insists that instruction G, referred to supra, was not erroneous, and further contends that plaintiff made no case for a jury; that Kreeger was acting outside the scope of his authority as a meter reader; and that defendant's demurrer to the evidence should have been sustained. Of course, if no case was made for the jury, error, if any, in the giving of an instruction is immaterial. Bello v. Stuever, Mo.Sup., 44 S.W.2d 619, 620.

No issue is presented concerning ratification of Kreeger's conduct, nor concerning negligence in the selection of Kreeger as a meter reader. If defendant is liable to plaintiff, such liability arises solely under the doctrine of respondeat superior.

Appellant's theory is that the assault complained of did not promote the reading of defendant's gas meters nor assist in carrying out any business delegated to Kreeger; that the assault was not intended as a means of accomplishing any work assigned to Kreeger; that the assault occurred after the meter readings had been taken, after Kreeger's duty to defendant had been discharged and independent of Kreeger's work for defendant; and that the fight to determine which was the better man, and to settle the personal "heat" resulting from plaintiff's charge against Kreeger's integrity and right action, was wholly outside the scope of Kreeger's work for defendant. Respondent, on the other hand, contends that Kreeger was employed to deal with customers to whatever extent was necessary in connection with the reading of meters; "that every word of Kreeger's dealings with plaintiff concerned Kreeger's assigned work"; "that Kreeger took offense for no rational cause and became repeatedly insolent"; and that the assault was committed by Kreeger "while and in the zeal and fervor for his master's work."

If, from a most favorable view of the whole evidence, giving plaintiff the benefit of every reasonable inference in his favor, it appears beyond any reasonable controversy that the assault and its purpose had no connection with Kreeger's duties to defendant, and that the assault was not intended or made to accomplish or promote the defendant's business intrusted to Kreeger, but was Kreeger's independent business, then defendant is not liable and the demurrer to the evidence should have been sustained. State ex rel. Gosselin v. Trimble, 328 Mo. 760, 41 S.W.2d 801; Smothers v. Welch & Co. House Furnishing Co., 310 Mo. 144, 274 S.W. 678, 40 A.L.R. 1209; Rohrmoser v. Household Finance Corp., 231 Mo.App. 1188, 86 S.W.2d 103; Collette v. Rebori, 107 Mo. App. 711, 82 S.W. 552; Wells v. North Indiana Public Service Co., 111 Ind.App. 166, 40 N.E.2d 1012.

"The principle of respondeat superior applies only when what is complained of was done in the course of the employment. The principal is responsible, not because the servant has acted in his name or under color of his employment, but because the servant was actually engaged in and about his business, and carrying out his purposes. He is then responsible, because the thing complained of, although done through the agency of another, was done by himself; and it matters not in such cases whether the injury with which it is sought to charge him is the result of negligence, unskillful or of wrongful...