Phillips v. Western Union Telegraph Company
| Decision Date | 22 May 1917 |
| Citation | 195 S.W. 711,270 Mo. 676 |
| Parties | LEONORA M. PHILLIPS v. WESTERN UNION TELEGRAPH COMPANY, Appellant, and SAMUEL KENZELL, a minor |
| Court | Missouri Supreme Court |
Appeal from St. Louis City Circuit Court. -- Hon. Rhodes E. Cave Judge.
Reversed.
Albert T. Benedict, Franklin Ferriss and Henry T. Ferriss for appellant.
(1) Where the injury to a third party is caused by the servant's negligence in the performance of his duties and the liability of the master is based solely on the doctrine of respondeat superior, each is severally liable to the injured party, although for different reasons, but they are not joint tortfeasors and cannot be sued jointly. Campbell v. Phelps, 1 Pick. 65; Parsons v Winchell, 5 Cush. 592; Mulchy v. Methodist Society, 125 Mass. 487; Page v. Parker, 40 N.H 47; Brewing Co. v. Przbyiski, 82 Ill.App. 361; McNemar v. Conn, 115 Ill.App. 36; Bailey v. Bussing, 37 Conn. 349; Tel. Co. v. Olsson, 40 Colo. 264; Campbell v. Sugar Co., 62 Me. 566; Clark v. Fry, 8 Ohio St. 377; French v. Construction Co., 76 Ohio St. 509; McGinnis v. Railroad, 200 Mo. 359; Warax v. Railroad, 72 F. 637. (2) Plaintiff's evidence failed to sustain the claim that the collision was due to the negligence of Kenzell in respect to any act or deed required by or incident to his employment; on the contrary, the plaintiff's evidence demonstrated that the collision was directly occasioned by Kenzell's conduct outside the scope of his duties. Hillsdorf v. City, 45 Mo. 94; Walker v. Railroad, 121 Mo. 575; Farber v. Railroad, 32 Mo.App. 381; Hartman v. Muehlbach, 64 Mo.App. 566; Collette v. Rebori, 107 Mo.App. 720; Grattan v. Suedemeyer, 144 Mo.App. 723; Slater v. Thresher Co., 5 L. R. A. (N. S.) 598; Geraty v. Ice Co., 16 A.D. 177 (N.Y.) ; Railroad v. Harvey, 144 F. 806; Guille v. Campbell, 49 A. 938; Thurston v. Railroad, 168 S.W. 236; Mfg. Co. v. Roofing Co., 183 S.W. 659. With respect to his manner of walking along the streets, Kenzell's position was analogous to that of an independent contractor; the telegraph company would not be liable for his negligence in so doing.
William H. McClarin and Jones, Hocker, Sullivan & Angert for respondent.
(1) The defendants are jointly or severally liable in this case, and they were properly joined as defendants in this suit. Therefore, the court did not err in overruling the appellant's motion to elect, or its demurrer, or its objection to the introduction of evidence, grounded on non-joint liability. Harriman v. Stowe, 57 Mo. 99; Steinhauster v. Spraul, 114 Mo. 551; Kanfield v. Railroad, 59 Mo.App. 362; Jewel v. Bolt & Nut Co., 231 Mo. 206; Schwyhart v. Barrett, 145 Mo. 332; Stotler v. Railroad, 200 Mo. 119; Lanning v. Railroad, 196 Mo. 656; McGinnis v. Railroad, 200 Mo. 358; Hutchinson v. Safety Gate Co., 247 Mo. 71; Whiteaker v. Railroad, 252 Mo. 450, 239 U.S. 421; Railroad v. Thomson, 200 U.S. 206; Railroad v. Bohon, 200 U.S. 221; Railroad v. Dixon, 179 U.S. 131; Railroad v. Miller, 217 U.S. 209; Railroad v. Willard, 220 U.S. 413; Sec. 1734, R. S. 1909. The appellant, by answering to the merits and not standing on its demurrer and motion to elect, waived the point raised thereby. White v. Railroad, 202 Mo. 561; Hansen v. Neal, 215 Mo. 277. (2) The evidence on the part of plaintiff conclusively showed that defendant Kenzell was in the employ of the defendant and at the time was engaged in and about its business as its servant. Fleischman v. Fuel Co., 148 Mo.App. 117; Long v. Nute, 123 Mo.App. 209; Hays v. Hogan, 180 Mo.App. 237; O'Malley v. Construction Co., 255 Mo. 386; Curley v. Vehicle Co., 68 A.D. 21; Seaman v. Koehler, 122 N.Y. 646; Wilde v. Railroad, 53 N.Y. 156; Pearlstein v. Express Co., 177 Mass. 530; Tuomey v. Fogart Co., 22 N.Y.S. 930; Slothower v. Clark, 191 Mo.App. 105; Phillips v. Tel. Co., 184 S.W. 958. (3) Kenzell's negligence having been committed in the course of the performance of his duties, was the negligence of the master. Ryan v. Keane, 211 Mass. 543, 47 L. R. A. (N. S.) 142; Phillips v. Tel. Co., 184 S.W. 958; Whiteaker v. Railroad, 252 Mo. 438; Garretson v. Duenckel, 50 Mo. 104; Meade v. Railroad, 68 Mo.App. 92; Brill v. Eddy, 115 Mo. 596; Voegeli v. Co., 49 Mo.App. 643; Schamp v. Lambert, 142 Mo.App. 573; Winfrey v. Lazarus, 148 Mo.App. 388; Bouilon v. Light Co., 148 Mo.App. 473; Red v. Railroad, 161 Mo.App. 522; Moore v. Light Co., 163 Mo.App. 270. (4) Kenzell not having stopped in grabbing the paper mentioned in the evidence, but having grabbed it while on his way to appellant's office, had not deviated from nor abandoned the pursuit of his duties to the appellant, so as to relieve it from liability, inasmuch as he was continuing on to the office of the appellant when he struck Mrs. Phillips. This was a question of fact which has been resolved against the appellant by the jury. Long v. Nute, 123 Mo.App. 209; Slothower v. Clark, 191 Mo.App. 105; Vaneman v. Laundry Co., 106 Mo.App. 592; Jones v. Weigand, 134 A.D. 644; Lovejoy v. Lackland, 66 Neb. 469; Whiteaker v. Railroad, 252 Mo. 452.
BROWN, C. Railey, C., not sitting. Woodson, J., dissents in an opinion filed.
In Banc.
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 sixteen years old, in its service, whose duty it was to deliver telegrams. The evidence tends to show that about seven 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 news boy with a bundle of papers under his arm stood on the sidewalk about seven 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 news boy "give me a paper." The news boy refused, when Kenzell snatched one from the bundle and ran, looking over his shoulder, and 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.
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 co-defendant, 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 of 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 Company, 194 Mo.App. 458, 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...
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