Phillips v. Western Union Telegraph Co.
| Decision Date | 04 April 1916 |
| Citation | 184 S.W. 958,194 Mo.App. 458 |
| Parties | GUSTAVE W. PHILLIPS, Respondent, v. WESTERN UNION TELEGRAPH COMPANY, Appellant |
| Court | Missouri Court of Appeals |
Argued and Submitted March 8, 1916.
Appeal from St. Louis City Circuit Court.--Hon. James E. Withrow Judge.
AFFIRMED.
STATEMENT.--About seven o'clock, on the evening of December 28, 1912 plaintiff and his wife were standing at the southeast corner of Grand Avenue and Olive street, in the city of St. Louis awaiting an opportunity to cross to the west side of Grand Avenue. Mrs. Phillips was standing on the east curb of Grand Avenue, a few feet south of Olive, one of her feet resting on the sidewalk, the other on the street some four inches below the level of the sidewalk, when she was run into by Samuel Kenzell, a boy between sixteen and seventeen years of age, and knocked down with such violence that her right femur or hip bone, and also her right wrist, were broken.
It is charged in the petition that at the time he ran into Mrs. Phillips, Kenzell was a messenger boy in the employ of the Western Union Telegraph Company (hereinafter referred to for brevity as the Western Union), and at the time was engaged in the performance of his duties as such messenger boy, and that his act of running into and knocking Mrs. Phillips down was due to his careless, negligent and reckless conduct and done while in the line of his employment. Averring that the expense on account of hospital charges, etc., which plaintiff had paid, was in excess of $ 1000, and that he had incurred other liabilities on account of the attendance of physicians and surgeons in excess of $ 2500, and that he had been deprived of the society and services of his wife ever since the accident, plaintiff avers that he has been damaged in the sum of $ 7500, for which, with costs, he demands judgment against the minor and the Western Union.
Each of the defendants, by separate answers, denied all the allegations in the petition, save that the Western Union admitted that it was engaged at the time in the business of receiving, transmitting and delivering telegrams.
The trial was before the court and a jury. Without setting it out in detail, it is sufficient to say that there was evidence tending to show that at the time of the injury to Mrs. Phillips, the Western Union had in its employ messenger boys who generally wore a uniform consisting of a cap with the words "Western Union" on it, and a blue coat with brass buttons, and that at the time of the accident Kenzell wore such a cap and coat. It was also in evidence that a messenger boy of the name of Kenzell was carried on the payroll of the company at the time. There was also evidence tending to show that at the time of the happening of the accident the Western Union had a branch office in a drugstore situated on the southwest corner of Olive and Grand, with entrances on both streets; that Kenzell was on duty at that office as messenger; that on the evening of the happening of the accident, Kenzell was rapidly walking or running west on Olive Street and about the center of the south pavement of that street, and when near the corner of Grand and Olive saw a newsboy named Pennington, with whom he was acquainted, standing about on the north curb of Olive street, on the south side of the street and near the corner of Grand Avenue, with a bundle of newspapers under his arm. Running along and swerving toward Pennington, Kenzell grabbed a paper from under Pennington's arm and carrying it in his left hand continued running rapidly toward Grand Avenue, looking back over his shoulder toward Pennington. Mrs. Phillips, as stated, was standing on the west curb of Grand, a few feet south of Olive, and a few feet south and west of Pennington, so that Kenzell, who had turned off slightly from his direct course to grab the paper from Pennington, then ran along Olive toward the southwest, and so running ran into Mrs. Phillips and knocked her down. He then proceeded across Olive street and entered the drugstore in which the branch office of the Western Union was located. Directly after the accident he was found in that office and identified as the boy who had knocked Mrs. Phillips down. Two or more witnesses testified that at that time they saw an envelope in the right hand of Kenzell, which they recognized as the ordinary envelope used by the Western Union for the delivery of messages.
Beyond the testimony as to the extent of the injuries received by Mrs. Phillips, which are said to be permanent, disabling her from performance of her wifely household duties, and the expense to which plaintiff had been put, which was heavy, this is substantially the testimony for plaintiff, except that a statement said to have been made by Kenzell was read in evidence, but admitted solely as against him, and not now relevant on this appeal.
The only evidence introduced by defendant was a diagram of the locus in quo and some testimony tending to contradict statements by plaintiff as to his loss of earnings in attending upon his wife, and as to the circumstances under which he had left the service of various companies by which he had been employed.
At the conclusion of the testimony for plaintiff and again at the conclusion of all testimony in the case, defendant Western Union Telegraph Company demurred or, more accurately, asked instructions in the nature of demurrers, which the court refused.
The court gave three instructions at the instance of defendants, refusing one asked as to the measure of damages. We will refer to the pertinent instructions hereafter.
There was a verdict in favor of plaintiff and against both defendants in the sum of $ 2000. The Western Union Telegraph Company, filing its motion for a new trial and in arrest of judgment, and excepting to the action of the court in overruling these motions, has alone appealed.
Judgment affirmed.
Franklin Ferriss and Henry T. Ferris for appellant.
There was no evidence that at the time of the collision the defendant Kenzell was engaged in the performance of any duties as an employee of the Telegraph Company, or that the alleged negligence was in respect to any act or deed on his part required by or incident to his employment, if any. Hillsdorf v. City, 45 Mo. 94; Walker v. Railroad, 121 Mo. 575; Farber v. Railroad, 32 Mo.App. 378-381; Hartman v. Muehlbach, 64 Mo.App. 566; Collette v. Rebori, 107 Mo.App. 711, 720; Grattan v. Suedemeyer, 144 Mo.App. 719, 723; Slater v. Thresher Co., 5 L. R. A. (N. S.) 598; Geraty v. Ice Co., 16 A.D. 177; Railroad v. Harvey, 144 F. 806; Guille v. Campbell, 49 A. 938. (2) Under the facts shown by the plaintiff's evidence, the doctrine of respondent superior is not applicable. Kipp v. Oyster, 133 Mo.App. 711; Cases, supra.
Jones, Hocker, Sullivan & Angert and Wm. H. McClarin, for respondent.
(1) The evidence was sufficient to make out a prima-facie case that the defendant Kenzell was in the employ of the defendant and that at the time of the accident was engaged in and about its business as its servant. Fleishman v. Fuel Co., 148 Mo.App. 117; Long v. Nute, 123 Mo.App. 209; Hays v. Logan, 180 Mo.App. 237; O'Malley v. Construction Co., 255 Mo. 386; Curley v. Electric Vehicle Co., 68 A.D. 18, 21; Seaman v. Koehler, 122 N.Y. 646; Wylde v. Railroad, 53 N.Y. 156; Pearlstein v. Express Co., 177 Mass. 530; Tuomey v. Fogart Co., 22 N.Y.S. 930; 6 Lebatt, pp. 6868, 6859-60, 6879-81, 6886-89. (2) Kenzell's negligence having been committed in the course of his performance of his duties, was the negligence of the master. Bryan v. King, 211 Mass. 543; Garretson v. Duenckel, 50 Mo. 104; Meade v. Railroad, 68 Mo.App. 92; Brill v. Eddy, 115 Mo. 596; Voegeli v. Marble Co., 49 Mo.App. 643; Shamp v. Lambert, 142 Mo.App. 573-5; Winfrey v. Lazarus, 148 Mo.App. 388; Bouilon v. Light Co., 148 Mo.App. 473; Redd v. Railroad, 161 Mo.App. 522; Moore v. Light Co., 163 Mo.App. 270-1-2-3; Sodderland v. Railroad, 102 Minn. 240; 6 Lebatt, pp. 6868, 6859, 6860. (3) Kenzell not having stopped in grabbing the paper mentioned in the evidence, but having grabbed it while on his way to defendant's office, had not deviated from his duties to the defendant; but if he had, inasmuch as he was continuing on to that office when he struck Mrs. Phillips, he had resumed and was engaged in the performance of his duties at the time he struck her. Vanneman v. Laundry Co., 106 Mo.App. 685, 592; Jones v. Wiegand, 134 App.Div. (N.W.) 644; Lovejoy v. Campbell, 16 S.D. 231; Weber v. Lackland, 66 Neb. 469; Ritchie v. Waller, 63 Conn. 155.
REYNOLDS, P. J. (after stating the facts).
--The assignment of error made before us is in permitting the case to go to the jury and in allowing the verdict to stand.
Under this assignment it is contended that there was no evidence that at the time of the collision defendant Kenzell was engaged in the performance of any duties as an employee of the Western Union or that the alleged negligence was in respect to any act or deed on his part required by or incident to his employment, if any, and that by the facts shown by plaintiff's evidence, the doctrine of respondeat superior is not applicable.
It is hardly denied by the learned counsel for appellant that Kenzell was, at the time of the happening of the accident, a messenger boy in the employ of appellant, and it may be added that the evidence tended to show that at the time he was so employed at the branch office of the appellant located in the drugstore. The evidence also was of such a character as to warrant the jury to infer that at the time he, Kenzell, was on his way to that office and that he had in his hand an envelope identified as the kind used by appellant for the delivery or carrying of...
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