Phillips v. Western Union Telegraph Co.

• Decision Date: 22 May 1917
• Docket Number: No. 18432.,18432.
• Citation: 270 Mo. 676,195 S.W. 711
• Parties: PHILLIPS v. WESTERN UNION TELEGRAPH CO. et al.
• Court: Missouri Supreme Court

195 S.W. 711

270 Mo. 676

PHILLIPS v. WESTERN UNION TELEGRAPH CO. et al.

No. 18432.

Supreme Court of Missouri. In Banc.

May 22, 1917.

Appeal from St. Louis Circuit Court; Rhodes E. Cave, Judge.

Action by Leonora M. Phillips against the Western Union Telegraph Company. Judgment for plaintiff, and defendant appeals. Reversed.

See, also, 184 S. W. 958.

Albert T. Benedict, of New York City, and Franklin Ferriss and Henry T. Ferriss, both of St. Louis, for appellant. William H. McClarin and Jones, Hocker, Sullivan & Angert, all of St. Louis, for respondent.

BROWN, C.

This is a suit for damages suffered by plaintiff under the following circumstances: The defendant Western Union Telegraph Company is a New York corporation engaged in the business of receiving, transmitting, and delivering communications by telegraph between different places in the United States, including the city of St. Louis, in which it had offices for that purpose, among which was an office on the southwest corner of Olive street and Grand avenue. Olive street, at that place, extends east and west, while Grand avenue crosses it, extending north and south. The defendant Kenzell, at the time of the injury, which occurred about December 28, 1912, was a messenger boy 16 years old, in its service, whose duty it was to deliver telegrams. The evidence tends to show that about 7 o'clock in the evening of that day the plaintiff was standing on Grand avenue in front of the show window of a candy store on the southeast corner, waiting for an approaching automobile to pass, so that she could step down into the street and cross to the southwest corner, on which the telegraph office was situated. A newsboy with a bundle of papers under his arm stood on the sidewalk about 7 feet north of her when the defendant Kenzell came running from the east along the sidewalk on the south side of Olive street with a telegram in his hand, and said to the newsboy, "Give me a paper." The newsboy refused, when Kenzell snatched one from the bundle and ran, looking over his shoulder, collided with plaintiff with such force that she was knocked ten feet into Grand avenue and very seriously injured. There was a verdict and judgment for $10,000 against both defendants, from which the telegraph company alone has taken this appeal. It does not complain of the amount, but does strenuously insist that it is not liable upon the facts as above stated, and this is the point to which our attention will be given.

1. In going into the consideration of this case it is well to have in mind that the boy who caused the injury which is the subject of the suit was not traveling on the street by permission of his codefendant, but in the exercise of a public right valuable to himself as a facility for gaining a livelihood as well as to his employer. Had he not possessed this right his employer could not have conferred it nor taken it away. It went with his service as far as it was necessary to the performance of the duty involved, and no further. In all other respects and for all other purposes it remained his own. It was, like his health and strength, a part of his own equipment for the service in which he was engaged. We cannot arbitrarily assume that by the terms of his employment he was forbidden to seek, while on these trips, his own pleasure or profit in any manner consistent with the performance of his whole conventional duty, nor was the defendant under any obligation to so restrain his liberty of action, in the ordinary use of the public easement, although, should it authorize him to commit a wrong, as by inciting him to dangerous speed in a crowd, it would be liable for the consequences upon familiar principles unconnected with any issue in this case, and having no connection with the relation of master and servant.

On the other hand, neither beasts nor inanimate things participate in these public uses of their own right, but only have status in the public highway by right of their owners. For this reason one who employs a beast upon the street must do so under such management and control as will provide reasonably for the safety of persons and their property. Had this boy been furnished by the defendant with a horse to ride or an automobile to transport him in the performance of his duties, his management of these facilities would have been the management of his master, which would have been liable for his acts and omissions in such management.

These principles are familiar to all, and are firmly embedded in the foundation in our jurisprudence, and we would not feel that it is necessary to mention them were it not that this unfortunate accident has already been the subject of adjudication by an appellate court of this state in a suit brought by the husband of plaintiff (Phillips v. Western Union Telegraph Co. et al., 184 S. W. 958), in which the liability of the appellant was upheld. While this does not constitute an adjudication of the right in favor of this respondent, it is persuasive authority as the decision by a distinguished court of the same question, and is the only authority to which counsel has directed our attention bearing upon the question which seems to us to be the controlling one in this case.

Respondent's counsel meets these simple rules with the proposition that human legs, while safe and proper instruments of transportation...