Nichols v. Chicago, R. I. & P. Ry. Co.

• Decision Date: 13 June 1921
• Docket Number: No. 13765.,13765.
• Court: Missouri Court of Appeals
• Parties: NICHOLS v. CHICAGO, R. I. & P. RY. CO.

232 S.W. 275

NICHOLS v. CHICAGO, R. I. & P. RY. CO.

No. 13765.

Kansas City Court of Appeals. Missouri.

June 13, 1921.

Appeal from Circuit Court, Miller County; John G. Slate, Judge.

"Not to be officially published."

Suit by George T. Nichols against the Chicago, Rock Island & Pacific Railway Company. Judgment for plaintiff, and defendant appeals. Affirmed.

Luther Burns, of Topeka, Barney Reed, of Ulman, and J. E. Du Mars, of Topeka, Kan., for appellant.

H. L. Donnelly, and W. S. Stillwell, both of Tuscumbia, and Pope & Lohman, of Jefferson City, for respondent.

ARNOLD, J.

This is a suit for slander. Plaintiff was engaged in hauling freight from Eldon to Tuscumbia, the county seat of Miller county, Mo.; the latter being off the railroad and about 13 miles from the former.

During the months of March and April, 1920, one H. W. Scott was employed by defendant railway company as an officer in its special service department, and his duties were to investigate the loss of stolen property, to secure evidence relative thereto, and to do the necessary things to protect the property belonging to defendant, or in its custody or control.

About April 2, 1920, there was a bag of sugar missing from the freight station of defendant at Eldon. Plaintiff was questioned about it by one Mr. Mennell, agent of the defendant company at that point, but no accusations were made against him by said agent. Mr. Houser, the ticket agent and cashier of defendant at Eldon, sent word to plaintiff that he (Houser) wanted to see him, but plaintiff was not successful in seeing Mr. Houser, but did see Mr. Adkins, freight checker of defendant at said station, and he informed plaintiff that H. W. Scott thought plaintiff had taken a bag of sugar from the station of defendant on Saturday evening.

While plaintiff was in the railroad station of defendant settling bills for the freight he was then about to transport to Tuscumbia, Mr. Scott came in, and plaintiff told Scott he wanted to see him, and then asked why he (Scott) had been prowling around his (plaintiff's) truck, to which Scott replied then, and there, in the presence of Urich Houser, W. L. McClung, Roy Brockman, and others:

"Yes, Shorty; you stole a sack of sugar: what in the hell are you going to do about it?"

The amended petition charges the facts practically as stated above, and charges that said W. W. Scott, agent of defendant —

"In the course of defendant's business for the purpose of locating a 100-pound sack of sugar alleged to have been stolen from the office of defendant, at Eldon, Miller county, Mo., and while acting within the scope of his employment and in the actual performance of his duties * * * did, in the presence of * * * U. R. Houser, Roy Brockman, and divers other persons, * * * speak of and concerning the plaintiff the following false, malicious, and defamatory words, to wit: `Shorty (meaning plaintiff) you stole a sack of sugar here Saturday evening; now what in the hell are you going to do about it?' which said charge, if true, constituted a crime under the laws of the state of Missouri, and would subject plaintiff to degrading punishment, and was so heard and understood by those who heard it. * * * Plaintiff further says that the false and slanderous words so spoken of and concerning the plaintiff * * * have greatly prejudiced him in his good name, fame, and reputation, and have greatly injured him in his business to his damage."

The prayer is for $1,000 actual and $2,000 punitive damages.

The defendant filed only a general denial. The cause was tried to a jury and resulted in a verdict for plaintiff in the sum of $500. After its motions in arrest of judgment and for a new trial were overruled, defendant brought the case here by appeal.

The first complaint of defendant is that the court erred in overruling its demurrer offered at the close of all the evidence, for the reason that defendant's agent, Scott, was not acting within the scope of his employment, nor in the performance of his duties in connection with his employer's interests, when the alleged slanderous words were uttered.

"The test is not the lawfulness or the unlawfulness of the means adopted by the servant to accomplish his master's business, but it is whether such means are so far incident to the employment as to come within its scope." Voegeli v. Pickel Marble & Granite Co., 49 Mo. App. 643.

"The simple test is whether they were acts within the scope of his employment, not whether they were done while prosecuting the master's business, but whether they were done by the servant in furtherance thereof, and were such as may fairly be said to have been authorized by him. By `authorized' is not meant authority expressly conferred, but whether the act was such as was incident to the performance of the duties intrusted to him by the master, even though in opposition to his express and positive orders." Wood on Master & Servant, § 307; Fensky v. Casualty Co., 264 Mo. 154, 174 S. W. 416, Ann. Cas. 1917D, 963.

In the instant case the testimony shows that defendant's agent, Scott, was employed for the purpose of preventing thefts of freight and any other depredations committed against the property and interests of the company; and at this particular time he was engaged in investigating the loss of a 100-pound sack of sugar, and the testimony tends to show that Scott suspected plaintiff of having unwarrantedly taken the same. The witness Houser had so informed plaintiff, and the station agent, Mennell, had questioned plaintiff about how many bags of sugar he had removed from the station on Saturday.

For the purpose of showing the scope of Scott's duties, defendant introduced in evidence the printed instructions of defendant issued for the guidance of its special agents. Section 17 of said "instructions," read into the record, is as follows:

"When a crime has been committed involving the interests of the company, no time should be lost, or exertion spared, to discover the offenders and bring them to justice. In making inquiries in criminal cases the greatest attention must be paid to details. Officers of short experience are...