Missouri Pacific Railroad Company v. Kellogg
| Decision Date | 02 June 1924 |
| Docket Number | 24 |
| Parties | MISSOURI PACIFIC RAILROAD COMPANY v. KELLOGG |
| Court | Arkansas Supreme Court |
Appeal from Greene Circuit Court; W. W. Bandy, Judge; reversed.
Judgments reversed, and causes remanded.
Thomas B. Pryor and Gordon Frierson, for appellant.
Instruction No. 4, given by the court of its own motion, was erroneous. The liability of a master for a tort committed by an employee depends not upon whether it was committed during the existence of the servant's employment, but whether or not it was committed in the prosecution of the master's business. 148 Ark. 227; 75 Ark. 579; 146 Ark. 104; 152 Ark 335. Instruction No. 10 given was error, and it was likewise error to refuse an instruction requested by appellant to the effect that the character of the appellees might be considered as affecting the question of damages by way of humiliation and mental suffering. The following authorities sustain appellant's contention that such an instruction as it requested was proper: 22 C. J. p. 417, § 563; R C. L, vol. 10, p. 947, § 117.
J M. Futrell and Jey Bratton, for appellee.
A common carrier is liable to a passenger for insult and injury inflicted by its employees. 67 Ark. 402; 82 Ark. 289; 121 U.S. 637; 99 Ark. 235. The actions and apparent duty of the one designated as an employee were such as to mark him as one. 48 Ark. 180.
Appellees instituted separate suits against appellant in the circuit court of Clay County, Western District, to recover damages in the sum of $ 3,000 each for mistreatment alleged to have been received by them at its depot in Knobel, after purchasing tickets and while waiting for their train. As amended, each complaint set up two grounds as a basis for recovery; first, mistreatment received at the hands of a freight hustler employed around the depot; and second, a failure on the part of appellant to protect appellees, while waiting at the depot for their train, from mistreatment at the hand of third parties. The complaint of W. E. Kellogg, as amended, alleged that said employee, in company with divers other persons unknown to him, used violent, abusive and insulting language to him, assaulted and forced him to leave the depot at Knobel and walk, in the night time, to Stonewall to take the train; that appellant's station agent was informed of the mistreatment being administered to him, but refused to protect him. The complaint of Irene Kellogg contained the same allegations, except she did not charge therein that the parties assaulted her.
Appellant filed an answer to each complaint, denying the material allegations contained therein.
The causes were tried together upon the pleadings, the testimony introduced by the respective parties, and the instructions of the court, which resulted in separate verdicts and judgments in favor of appellees, from which is this appeal.
The testimony introduced by appellees was, in substance, to the effect that, on the night of January 28, 1923, appellees bought tickets from appellant's station agent at Knobel, entitling them to transportation to Paragould, and, while waiting at the depot for their train, a freight hustler around the depot, who was an employee of appellant, in company with others, who were not employees of appellant, called, W. E. Kellogg out of the waiting room, and, after abusing and beating him, forced him and his wife to walk to Stonewall; that said parties used violent, abusive and insulting language to Irene Kellogg; that, when they called W. E. Kellogg out onto the platform and began to abuse and beat him, Irene Kellogg asked the station agent to protect them, which request was refused. Appellees admitted they were dope fiends, and that they had been frequently arrested, excluded from Memphis, and notified by officers to leave other towns.
The testimony introduced by appellant was, in substance, to the effect that its freight hustler offered no indignities to appellees; that he had not participated in the abuses and assault, and that the station agent knew nothing of the indignities offered or the assault made upon them; that Irene Kellogg had not called upon him to protect her and her husband; that the freight hustler had nothing to do with preserving order in and around the depot; that his only duties were to pump water, handle baggage and shovel coal.
Appellant contends for a reversal of the judgments upon the ground that the court...
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