Osment v. Pitcairn

• Decision Date: 16 December 1941
• Docket Number: 37673
• Citation: 159 S.W.2d 666,349 Mo. 137
• Parties: Eugene W. Osment v. Norman B. Pitcairn and Frank C. Nicodemus, Jr., Receivers of the Wabash Railway Company, a Corporation, Appellants
• Court: Missouri Supreme Court

159 S.W.2d 666

349 Mo. 137

Eugene W. Osment v. Norman B. Pitcairn and Frank C. Nicodemus, Jr., Receivers of the Wabash Railway Company, a Corporation, Appellants

No. 37673

Supreme Court of Missouri

December 16, 1941

Rehearing Denied March 13, 1942.

Appeal from Jackson Circuit Court; Hon. Paul A. Buzard Judge.

Reversed.

N. S Brown, J. H. Miller, Sebree, Shook & Gisler, B. F. Boyer and John S. Marley for appellants.

(1)The court erred in overruling appellant's demurrer to the evidence offered at the close of the whole case.Davis v. Green,260 U.S. 349, 67 L.Ed. 299;Atlantic Coast Line v. Southwell,275 U.S. 64, 72 L.Ed. 157;St. Louis & S. F. Railroad Co. v. Mills,271 U.S. 344, 70 L.Ed. 979;Jackson v. C., R. I. & P. Ry. Co.,178 F. 432;Gens v. Wagner Electric Mfg. Co.,326 Mo. 503, 31 S.W.2d 785;Walker v. Hannibal & St. Joe Ry. Co.,121 Mo. 575, 26 S.W. 360, 24 L. R. A. 363;Smith v. Western Union Tel. Co.,232 S.W. 480;Steeley v. Kurn,146 S.W.2d 578;Priest v. F. W. Woolworth Co.,228 Mo.App. 23, 62 S.W.2d 926;Galveston, Harrisburg & S. A. Ry. Co. v. Currie,95 S.W. 1075, 10 L. R. A. (N. S.) 366;Ballard v. Louisville R. Co.,110 S.W. 296, 16 L. R. A. (N. S.) 1052;Medlin Milling Co. v. Boutwell,133 S.W. 1042, 34 L. R. A. (N. S.) 109;Griffin v. B. & O. Ry. Co.,126 S.E. 571, 40 A. L. R. 1326;Goupiel v. Grand Trunk Ry. Co.,118 A. 586, 30 A. L. R. 690;Wells v. Henderson Land & Lbr. Co.,76 So. 28, L. R. A. 1918A, 115;Reeve v. Mo. Pac. Ry. Co.,82 Wash. 268, 144 P. 63, L. R. A. 1915C, 37;Annotation, 72 L.Ed. 157, 162, 164;Hulley v. Moosbrugger,95 A. 1007, L. R. A. 1916C, 1203;Madison v. Phillips Pet. Co.,88 F.2d 515;Mo. Pac. Ry. v. David,284 U.S. 460, 76 L.Ed. 399;Roebuck v. A., T. & S. F. Ry. Co.,99 Kan. 544, 162 P. 1153, L. R. A. 1917E, 741;C. & O. Railroad v. Mihas,280 U.S. 102, 74 L.Ed. 207;Karr v. C., R. I. & P. Ry. Co.,241 Mo. 539, 108 S.W.2d 44;39 C. J. 480.(2)Respondent's petition fails to state a cause of action under the Federal Employers' Liability Act.Authorities cited under Point (1);Jackson v. C., R. I. & P. Ry. Co., 178 F. 432.

Raymond E. Martin and Trusty, Pugh, Green & Trusty by Guy W. Green, Jr., for respondent.

(1) The demurrer was properly overruled because defendants owed plaintiff a duty to exercise reasonable care to so control their servant while acting outside the scope of his employment as to prevent him from creating an unreasonable risk of injury to the plaintiff and violated this duty in (a) negligently retaining and failing to control a servant who, with their knowledge, was in the habit of misconducting himself in a manner dangerous to others, and (2) negligently failing to exercise reasonable care to so control said servant through Finnell as to prevent him from injuring the plaintiff when defendants had the opportunity and the power to do so.Federal Employers' Liability Act, 45 U.S.C. A. 51;Restatement of the Law, Torts, sec. 317;4 R. C. L., sec. 650; 1 Shearman and Redfield on Negligence (Rev. Ed.), sec. 160, p. 381; 2 Sheaman and Redfield on Negligence (Rev. Ed.), sec. 199, pp. 456-459;Dean v. St. Paul Union Depot Co.,43 N.W. 54;Priest v. F. W. Woolworth,62 S.W.2d 926;Williams v. Mo. Pac. Ry. Co.,18 S.W. 1098;Blaine v. Huttig, etc., Co.,105 S.W.2d 946;Stuart v. Kansas City,102 Kan. 307;White v. K. C. Stockyards,104 Kan. 90;Zabawa v. Oberbeck,146 Wis. 621, 131 N.W. 826;M., K. & T. Ry. Co. v. Day,136 S.W. 435;Fletcher v. B. & P. R. Co.,168 U.S. 135, 18 S.Ct. 35;Barrentine v. Henry Wrape Co.,152 S.W. 158;Barrentine v. Henry Wrape Co.,211 S.W. 366;Waldo v. Galveston, etc., Co.,50 S.W.2d 274;Galveston, etc., Ry. Co. v. Waldo,77 S.W.2d 326;Griffin v. B. & O.,122 S.E. 912;Swinanton v. Le Boutillier,28 N.Y. 553, 48 N.Y. 752;Nenstiehl v. Freedman,153 N.Y.S. 120;Blaisdell v. Long Island R. Co.,136 N.Y.S. 768;Davis v. Merrill,112 S.E. 628;Yazoo & Midland Valley R. Co. v. Hare,61 So. 648;Hogle v. Franklin Mfg. Co.,199 N.Y. 388, 92 N.E. 794;Palmer v. Keene,112 A. 798;Rofsky v. City,12 N.Y.S. (2d) 560;2 Roberts Federal Liability of Carriers(2 Ed.), sec. 711;Jamison v. Encarnacion,281 U.S. 635, 50 S.Ct. 440;Steeley v. Kurn et al.,85 S.Ct. 864;Waeckerley v. Colonial Baking Co.,67 S.W.2d 779;Restatement of Torts, sec. 435;Mrazek v. Term. Railroad Assn.,111 S.W.2d 26.(2) The petition stated a cause of action under the Federal Employers' Liability Act: (a) For negligence in retaining a dangerous employee with knowledge of his habit of so conducting himself as to create an unreasonable risk of bodily harm to others and: (b) For negligence of the defendants through Finnell in failing to so control the conduct of Stalac while acting outside the scope of his employment as to prevent him from harming plaintiff, when Finnell knew Stalac's propensities and saw him approach and seize plaintiff and had the opportunity and ability to do so.Dean v. St. Paul Union Depot Co.,43 N.W. 54;Griffin v. B. & O.,122 S.E. 912;Jamison v. Encarnacion,281 U.S. 635;Steeley v. Kurn,85 S.Ct. 864; Authorities cited under Point (1).(3)The court did not err in admitting in evidence the rules of the special service department.

Barrett, C. Westhues and Bohling, CC., concur.

OPINION

PER CURIAM

The receivers of the Wabash Railroad appeal from an entered judgment of $ 35,000.00 in favor of Eugene W. Osment for personal injuries.The action is under the Federal Employers' Liability Act, as amendedAugust 11, 1939.[45 U.S.C. A., Sec. 51;53 Stat. 1404.]

The plaintiff's petition alleges that while he was a member of an interstate switching crew he was standing in the freight house when a messenger boy, John Stalac, walked up behind him and seized him around his neck and shoulder in such a manner that he could not get loose and squeezed him so tight he lost consciousness and fell, fracturing his head on the concrete floor.

The negligence specified is (1) that Stalac was "incompetent, habitually careless, and an improper and dangerous person to have and retain in such employment, and defendant knew he was young, big, strong and had propensities to show his power by scuffling and grappling and violently seizing other employees from behind, and that he was dangerous in and near the employment of other" employees; and (2) that the railroad was negligent and breached its duty to the plaintiff through Finnell, a policeman in the special service department, in that, although Finnell knew of Stalac's propensities and was sitting nearby at the time of the assault, he made no effort to control Stalac or prevent him from injuring the plaintiff.

The plaintiff's proof was that John Stalac habitually engaged in rough horseplay and the railroad had knowledge of the fact.Stalac went to work for the railroad as a boy in the messenger service, later becoming an extra switchman.He was a large, rough fellow.His conduct was described by one member of the plaintiff's switching crew as being playful like a big pup.He was always engaged in horseplay.Another member of the switching crew had seen him scuffling with various employees.The plaintiff described his conduct by saying he was "a fellow that liked to scuffle with fellows."He would grab a fellow and tussle with him, twist his arms and throw him down.Three negroes employed in a warehouse had observed his conduct for several years and he was always grabbing people and scuffling with them.He would bear down on the rear end of a loaded truck as it was being pulled and cause the handle to fly up.Sometimes he would hit a man back of the knees and cause him to fall.He would "grab a fellow rough" and pick him up.Once he grabbed a freight house employee's breast so hard he had to have medical attention.He never acted in anger.His conduct is best described as unnecessarily rough horseplay.

The plaintiff's theory of his right to recover on the first assignment is that the railroad was negligent in knowingly retaining in its employ one who was dangerous to others by reason of his habit of misconducting himself in a manner dangerous to others.The plaintiff says liability attaches even though the employee was acting outside the scope of his employment.In other words, the plaintiff seeks to apply the tort doctrine of liability for negligently employing or retaining in one's employment a known habitually incompetent or vicious employee to cases arising under the Federal Employers' Act. [Dean v. St. Paul Union Depot Co., 41 Minn. 360, 43 N.W. 54;Zabawa v. Oberbeck,146 Wis. 621, 131 N.W. 826;Isaacs v. Smith(Mo. App.),275 S.W. 555;Allen v. Quercus Lumber Co.,171 Mo.App. 492, 157 S.W. 661;Williams v. Missouri Pac. R. Co.,109 Mo. 475, 18 S.W. 1098;39 C. J., secs. 639-641, pp. 533-536;2 Shearman & Redfield, Negligence, Secs. 199-200, pp. 456-465;2 Restatement, Law of Torts, sec. 317, pp. 860-862;Barrentine v. Henry Wrape Co.,105 Ark. 485, 152 S.W. 158;Henry Wrape Co. v. Barrentine(Ark.),211 S.W. 366.]

The difficulty with applying the plaintiff's theory of liability to this case is that the rights of the plaintiff and the obligations of the defendant depend upon the Federal Employers' Liability Act and the applicable principles of the common law as interpreted by the federal courts.[Missouri Pac. R. Co. v. Aeby,275 U.S. 426, 48 S.Ct. 177, 72 L.Ed. 351, reversingAeby v. Missouri Pac. R. Co.,313 Mo. 492, 285 S.W. 965;Weiand v. Southern Pac. Co.,34 Cal.App. (2d) 500, 93 P.2d 1023, certiorari denied, Southern Pac. Co. v. Weiand,309 U.S. 670, 60 S.Ct. 613, 84 L.Ed. 1016. The latter case was decided since Erie R. Co. v. Tompkins,304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188;Annotation83 L.Ed. 519.]

While the federal courts might recognize the plaintiff's theory of liability and construe the...