Robbs v. Missouri Pacific Railway Co.

• Decision Date: 11 March 1922
• Parties: HOWARD ROBBS, a Minor, by Next Friend, NEWTON ROBBS, Respondent, v. MISSOURI PACIFIC RAILWAY COMPANY, a Corporation, and C. M. BOLTON, Appellants
• Court: Missouri Court of Appeals

242 S.W. 155

210 Mo.App. 429

HOWARD ROBBS, a Minor, by Next Friend, NEWTON ROBBS, Respondent, v. MISSOURI PACIFIC RAILWAY COMPANY, a Corporation, and C. M. BOLTON, Appellants

Court of Appeals of Missouri, Springfield

March 11, 1922

Appeal from the Circuit Court of Butler County.--Hon. Almon Ing Judge.

AFFIRMED (on condition).

James F. Green and J. C. Sheppard for appellants.

(1) The judgment cannot be sustained against appellant Railroad Company for the reason that the testimony fails to show that appellant, Bolton, at the time he shot respondent was performing any act for the Company which pertained to the particular duties of his employment. Milton v Railroad, 193 Mo. 46; Snider v. Hannibal & St. Jo R. R. Co., 60 Mo. 413; Golden v. Newbrand, 52 Iowa 59; Holler v. Ross, 68 N.J. L. 324, 59 L.R.A 943; Walker v. Railroad, 121 Mo. 575. (2) The verdict and judgment cannot be sustained against either of the appellants if it be found that appellant Bolton was attempting to apprehend the respondent for the commission, or attempted commission of the crime of burglary, as any private person has a right to arrest for felony actually committed, or attempted to be committed in his presence, and may even kill the felon, if necessary, to procure his arrest, or prevent his escape. 5 C. J. 410, 411, sec. 39, 40; State v. Albright, 144 Mo. 638; Pandjiris v. Hartman, 196 Mo. 539. (3) Respondent having pleaded a wilful shooting cannot recover on the theory of negligence, because it is not pleaded, and the two are inconsistent. Christy v. Butcher, 153 Mo.App. 397. (4) The court erred in allowing the jury under the instructions to give punitive damages because there was no proof of malice. State v. Prater, 130 Mo.App. 355.

David W. Hill and Sam M. Phillips for respondent.

(1) Defendant C. M. Bolton was in his line of employment at the time he shot plaintiff. He was employed as an armed guard of defendant's dynamite cellar and while in the discharge of his duties as such he shot the plaintiff. This made the shooting in the scope of his employment. Hanel v. Wabash Railroad Co., 119 Mo. 325; Green v. Standard Oil Co. of Ind., 199 S.W. 746; Sturgis v. K. C. Ry. Co., 228 S.W. 861; Redd v. Mo. P. Ry. Co., 161 Mo.App. 522, 143 S.W. 555; Moore v. Jefferson Light Co., 163 Mo.App. 266, 146 S.W. 825; Maniaci v. Express Co., 266 Mo. 633, 182 S.W. 981; Whitaker v. Railroad, 252 Mo. 438; 160 S.W. 1009; Davis v. Railroad, 192 Mo.App. 419, 182 S.W. 826; Wahl v. Railroad, 203 Mo. 272; Chandler v. Gloyd, 217 Mo. 412, 116 S.W. 1073; Fellhauer v. Railroad Co., 191 Mo.App. 137, 177 S.W. 795; Slothower v. Clark, 191 Mo.App. 105, 179 S.W. 55; Hellriegel v. Dunham, 192 Mo.App. 43, 179 S.W. 763; Winn v. K. C. Belt Ry. Co., 151 S.W. 98, 245 Mo. 406; Meade v. Railroad, 68 Mo.App. 92; Curtis v. Railroad, 99 Mo.App. 506; McDonald v. Railroad, 146 S.W. 83, 165 Mo.App. 75. (2) The fact that plaintiff and his companions intended to break into defendants' cellar and take some of its explosives is no felony, there being no overt act toward carrying the intention into effect. The mere intent to commit an offense is not a crime. State v. Rider, 90 Mo. 54; State v. Painter, 67 Mo. 89; State v. Davidson, 157 S.W. 890; State v. Riseling, 186 Mo. 529; State v. Hayden, 141 Mo. 311; People v. Webb, 127 Mich. 29, 86 N.W. 406; People v. Young, 122 Mich. 292, (Attempt to commit burglary) 81 N.W. 114, 47 L.R.A. 108; McDade v. People, 29 Mich. 50. The jury having passed upon a controverted issue of facts upon which there was evidence both ways, their verdict is conclusive and will not be disturbed by the appellate court on appeal. Porter v. Hetherington, 158 S.W. 469, 172 Mo.App. 502; Johnson v. Railway, 166 S.W. 1105, 183 Mo.App. 403; Mann v. Weiss, 170 S.W. 355, 185 Mo.App. 335; Matthews v. Coal Co., 177 S.W. 650; Davis v. Railroad, 182 S.W. 826, 192 Mo.App. 419; Cundiff v. R. N. of A., 144 S.W. 128, 162 Mo.App. 117; Kelly v. Ross, 148 S.W. 1000, 165 Mo.App. 475; Hutton v. Railroad, 150 S.W. 722, 166 Mo.App. 645; City of Kennett v. Katz Const. Co., 202 S.W. 558, 273 Mo. 279; Koslove v. Dittmeier, 203 S.W. 499; Murray v. Bank, 206 S.W. 577; Plummer v. Ford, 208 S.W. 489, and other cases too numerous to cite. (4) Criminal and penal statutes are to be strictly construed in favor of the defendant and against the plaintiff. State v. McMahon, 137 S.W. 872, 234 Mo. 611; Howell v. Stewart, 54 Mo. 400; State v. Jaguer, 63 Mo. 403; State v. Gritzner, 134 Mo. 512; State v. Bryant, 90 Mo. 534; State v. McCauce, 110 Mo. 398; State v. Reid, 125 Mo. 43; State v. Howard, 137 Mo. 289; State v. Butler, 178 Mo. 272; State v. Balch, 178 Mo. 392. (5) Plaintiff being guilty of no criminal offense, either felony or misdemeanor, did defendant have a right to shoot him, conceding for the purpose of argument only that the shot was fired with the intent to protect the railway company's dynamite? We answer the query emphatically, no. See in this connection the following cases: Hartman v. Hoernle, 201 S.W. 911; Callahan v. Billat, 68 Mo.App. 435; State v. Martin, 52 Mo.App. 611; State v. Dooley, 121 Mo. 591; State v. Forsythe, 89 Mo. 671; Shellabarger v. Morris, 115 Mo.App. 569; Maniaci v. Interurban Express Co., 266 Mo. 633, 182 S.W. 981.

BRADLEY, J. Cox, P. J., and Farrington, J., concur.

OPINION

BRADLEY, J.

--Plaintiff, a minor, thirteen years of age, by next friend, proceeded against defendants for personal injury resulting from being shot by defendant, Bolton. On a jury trial plaintiff had judgment for $ 2000 actual and $ 2000 punitive damages. The usual motion was filed and overruled, and defendants appealed.

Plaintiff alleges that on July 15, 1920, defendant Bolton, while in the employ of defendant railway company as an armed watchman or guard of its dynamite storage house, and while acting for the railway company and within the scope of his employment, did unlawfully, feloniously, on purpose, wilfully and maliciously and with intent to kill, and without just cause or excuse, shoot plaintiff in and upon the right side of his neck, and that the bullet passed through and out on the left side of the face, all to his injury, damage, etc. Defendants answered by a general denial, and further alleged that plaintiff and two others at the time plaintiff was shot went to the railway company's powder house in which were kept dynamite, powder, tools, etc., and attempted to burglarize said house and steal the dynamite, powder, etc., therein, and that while plaintiff and those with him were attempting to burglarize said house, defendant Bolton approached, and that plaintiff and those with him discovered the approach of Bolton and fled, and that Bolton pursued, and called to them to halt, but that said parties continued to flee, and that Bolton, in order to frighten them, cause them to stop that he might apprehend them for the commission of a felony, fired his pistol in the air with no intention of hitting any one, and that if plaintiff was injured it was purely accidental, and without malice. The reply is a general denial.

Plaintiff with two other boys some two years older had been breaking into this powder house and stealing dynamite, powder, caps fuses, etc. Bolton was a deputy sheriff of Cape Girardeau county, and had done some work as special agent for the defendant railway company. On July 11th he was called to Poplar Bluff in Butler county and directed to guard the powder house. Bolton testified that he was directed "to stay there and try to catch the parties; that if they were boys, not to hurt any boys, just find out who they were, but if men catch them." Thomas F. Cadwallader, special agent for defendant railway company, instructed Bolton as to his duties and told him to be careful and not hurt any boys in case it turned out to be boys that came up there to rob the place. "I told him to protect the property and prevent it from being stolen like it had been. Q. Did you tell him to arrest any body? Did you give him any special instructions along that line? A. I don't know that I did especially. I supposed he would know what to do as an officer." Bolton had been on the job from July 13th. Plaintiff was shot on the 15th. Bolton describes the incident of the shooting as follows: "On the night of the 15th I went out there about eight o'clock, or near eight o'clock and took my position as usual, and somewhere about nine-thirty, or close to ten o'clock, between nine and ten, it was pretty dark, you know, on my side of the hill it was real dark, but the reflection of the lights against the other side of the hill would let me see anybody coming over the top of the hill, or see enough to tell it was people or anything like that. I was in the usual position where I usually stayed, and I saw three fellows come up over the hill, and they hesitated when they got on the top of the hill, talking a little bit; they stopped there, the two went on to the west powder house, one stood out maybe forty feet from the powder house, and the other two went on to the door, and they got down there and began to knock and hammer, and flash a light of some kind, I guess they had been there three or four minutes, and they quit knocking for the reason they had the door open. I thought I would let the whole bunch get in there, get in the house, and I would go there and close the door. One waited out there, and I saw I could not do that and so, when they quit knocking, I thought they had the door open, they stood there; I saw the other fellow was not going to go down and I thought I could go there and make a run for them. As soon as I got out of the shade of the trees the fellow on the watch saw me coming, he said 'there is somebody here.' I knew then the thing was up and I run--Q. What did they do? A. They started to run out. There...