Redd v. Missouri Pacific Railway Company

• Decision Date: 05 February 1912
• Parties: WILLIAM A. REDD, Respondent, v. MISSOURI PACIFIC RAILWAY COMPANY, Appellant
• Court: Kansas Court of Appeals

143 S.W. 555

161 Mo.App. 522

WILLIAM A. REDD, Respondent, v. MISSOURI PACIFIC RAILWAY COMPANY, Appellant

Court of Appeals of Missouri, Kansas City

February 5, 1912

Appeal from Lafayette Circuit Court.--Hon. Samuel Davis, Judge.

AFFIRMED.

Robert F. Railey and Harvey C. Clark for appellant.

The petition does not state a cause of action. Snyder v Railroad, 60 Mo. 413; Collette v. Rebori, 107 Mo.App. 711; Hudson v. Railroad, 16 Kan. 470; Davis v. Haughtenlin, 14 L.R.A. (1 Ed.), 739; Waaler v. Railroad, 100 N.W. 1097; Seakator v Lannon, 58 A. 456. (2) The defendant's demurrer to the testimony offered both at the close of plaintiff's case and at the close of the whole case should have been given. The act of the agent was not within the scope of his employment. (a) In order to make the master liable for the tortious act of his servant the act of the servant must be within the scope of his employment. It must pertain to the particular duties of such employment and be one incident to the performance of the same. Corlette v. Reberi, 107 Mo.App. 711; Camphor v. Tel. Co., 127 Mo.App. 557; Grattin v. Suedmeyer, 144 Mo.App. 714; Voegili v. Granite Co., 49 Mo.App. 645; Meade v Railroad, 68 Mo.App. 92. (b) The master is not liable for the willful and tortious acts of his servant committed outside of the scope of his employment. An act done by the servant while engaged in the work of the master may be entirely disconnected therefrom--done not as a means or for the purpose of performing that work but solely for the accomplishment of an independent, malicious or mischievous purpose of the servant. Such act is not as a matter of fact the act of the master in any sense and should not be declared to be so as a matter of law. Milton v. Railroad, 193 Mo. 58; Waaler v. Railroad, 100 N.W. 1097; Evers v. Krouse, 58 A. 181; Davis v. Haughetlin, 14 L.R.A. 739; Hudson v. Railroad, 16 Kan. 470; Williams v. Pullman Co., 3 So. 631. (c) The master is not liable for the tortious acts of his servant unless the act complained of from its nature is within the scope of his employment or is shown either directly or inferentially to have been authorized by the master. Voegili v. Granite Co., 49 Mo.App. 645.

Alexander Graves and Charles Lyons for respondent.

(1) Defendant waived its demurrer to the evidence at the close of plaintiff's evidence, by proceeding to introduce evidence, and therefore we dismiss that point on the later decisions. Frye v. Railroad, 200 Mo. 367; Semple v. Railroad, 152 Mo.App. 22. (2) The petition states a good cause of action, and the court correctly overruled appellant's demurrer to the evidence at close of the evidence. Haehl v. Railroad, 119 Mo. 325; Camphor v. Telephone Co., 127 Mo.App. 553. (3) Retention of a servant in his employment after notice to the principal of a tort committed by the servant is evidence of the ratification of the act by the principal. Bass v. Railroad, 42 Wis. 654; Robinson v. Trans. Co., 94 Wis. 345. (4) Appellant had notice of the agent's misconduct sufficient for ratification. When it is thoroughly understood that it is not profitable to employ careless and indifferent agents, or reckless and insolvent servants, better men will take their places and not before. Goddard v. Railroad, 2 Am. Rep. 50. This case is expressly approved in Perkins v. Railroad, 55 Mo. 214; Buckley v. Knapp, 48 Mo. 162; Sedg. Meas. Dam., 520; Cleghorn v. Railroad, 56 N.Y. 44.

OPINION

BROADDUS, P. J.

Assault and battery. The trial was had on the amended petition of plaintiff which charges in substance that plaintiff who resided at Dover went to Grand Pass, Missouri, for the purpose of ascertaining whether or not defendant's agent at that point had procured a car previously ordered for shipment, and while plaintiff was negotiating with such agent about the matter, that the agent committed an assault upon his person; that it was the duty of said agent to procure a suitable car for said purpose, and that the assault was committed while he was in the exercise of such duty. The defendant moved to strike out certain parts of the original petition which the court sustained. It also filed a demurrer to the amended petition which the court overruled, to which action of the court the defendant excepted.

The plaintiff, in July, 1910, went to Grand Pass, a station on defendant's road, to buy and ship a carload of wheat at that place. He ordered a car for that purpose at that point from the defendant's agent, Williams, which was set out for him at eight o'clock on July 22, 1910. It appeared that plaintiff was not satisfied with the car the agent had selected for him and that he went back to Dover and got the conductor to bring one in its stead to Grand Pass on the morning local freight, July 24th; that he came on the local himself and got off at the water tank when the train stopped at the depot, and ran across the street but returned almost immediately to the depot; that while the agent was on the depot platform with a pencil and writing pad in his hands engaged in checking freight the difficulty began which resulted in the agent assaulting plaintiff. Plaintiff's statement of the occurrence in part is as follows: "I met him in front of the waiting roof of the depot, he had a pad and pencil in his hand, and he said to me, 'I have placed your car at eight o'clock, fill it in two days or pay the penalty, that is the rule of the road.' I said, 'I went up the road last night to the little town of Dover and heard that George Gould owned the road and that you were not even a partner.' He said, 'I gave you a car last night and you would not fill it.' I said, 'yes, you gave me a traveling privy, that kind of a car may be good enough to put stuff in if you and your kind had to eat it, but this is for decent people,' and yip, he hit me and I whirled around and fell on my hand like this, and I was some time getting up, and as I raised up he was standing still and had anger in his eyes, and they were gleaming like a demon, and do you want to know what I told him? I said, 'you cowardly son-of-a-bitch to strike an old man, you ought to be ashamed, and I wish I had a gun to shoot you.' I said, 'you get away from here I do not want you around,' and he whirled around to strike me without the least provocation." The evidence of the agent, Williams, corroborates that of plaintiff in all important particulars to which attention will be called later on.

It appears that after the car from Dover was set out by the conductor the agent met plaintiff and insisted that he should use the car set out by him previously instead of the one obtained from Dover, and that he should fill it in two days or pay the penalty for not doing so as required by the rules of the company, and that this was the matter being discussed when the quarrel began and the agent struck plaintiff. The evidence of the agent, Williams, was in part as follows: "I was standing at the car right in front of the depot and had been unloading freight. I had some weighbills in my hand, some one was up in the car unloading it and I was taking it out when he came down. . . . He came down to me . . . from the west end of the depot. That is the first I remember. I may have seen him before, but I did not notice him before. He spoke to me first. He said, 'I got that car, sir, I understand that you are not running this road. Mr. Gould is running the road.' I told him I would not let them place it for him; that I had placed one already. He did not say where he had gotten the car. He then said, 'I will not use that car, sir, it is dirty, and not fit to use.' I told him again that I would not let them place the car they had for him as we had this car all ready placed for him at the team track and it had been four days to his credit; it was placed on the track the 22d day of July for him at eight o'clock. To this he said, 'if you and your kind were to eat the flour made out of that wheat shipped in that car it would be all right, but it was for decent people to eat.' I do not remember exactly his words, and at the same time he was shaking his finger in my face mighty close, and the next thing he called me, there were not but a few words said, he called me a dirty puppy. About that time I struck him. I do not remember any other words. He was mad. I struck him with my fist. He did not fall. He went backwards and his hat fell off. He picked up his hat and said to me, 'you son-of-a-bitch for hitting an old man like me, I will have you arrested.' That was all that was said."

The plaintiff testified that his eye was blackened by the blow that he received. He was asked: "How was your face, cut or disfigured?" A. "Yes, sir, my wife did not know me, that was about all." That his eye remained in that condition three or four weeks, during which time he was nervously prostrated, but that he went around however; that his health was good previously; that a doctor was then treating him for nervous prostration; that he has some miserable nights when he thinks about his injury as it disturbs...