Russo v. Brooks

• Decision Date: 01 March 1919
• Docket Number: No. 13242.,13242.
• Citation: 214 S.W. 429
• Parties: RUSSO v. BROOKS.
• Court: Missouri Court of Appeals

214 S.W. 429

RUSSO v. BROOKS.

No. 13242.

Kansas City Court of Appeals. Missouri.

March Term, 1919.

Appeal from Circuit Court, Jackson County; Milton Schwind, Special Judge.

"Not to be officially published."

Action by William Russo, a minor, by his next friend, Agnes Russo, against Benjamin F. Brooks, begun in the justice court and appealed to the circuit court. From a judgment in the circuit court for plaintiff, defendant appeals. Reversed and remanded.

Sharp & Sharp and Ed E. Aleshire, all of Kansas City, for appellant.

W. O. Cardwell, of Kansas City, for respondent.

TRIMBLE, J.

While walking along a street in Kansas City late at night, plaintiff was shot in the foot by defendant's son. He brought this suit for damages against the son and the father, the liability of the latter being predicated upon the charge that the son, Fred Brooks, was in the employ of the father and acting in the scope of his employment, guarding a grading camp which the father owned. The father lived in a tent at this grading camp, and the son, though 23 years of age, lived with him. A jury in the justice court found a verdict for plaintiff in the sum of $500 against both defendants for the full amount sued for, and judgment was rendered thereon, from which the father Benjamin F. Brooks, alone appealed to the circuit court, where the cause was tried de novo, resulting in a verdict for plaintiff in the sum of $350, from which an appeal has been taken to this court.

Independence avenue in Kansas City runs east and west, and at a certain point in the eastern portion of said city, Cleveland avenue runs south from Independence avenue, while about a third of a block further west on Independence avenue, Monroe street commences and runs north from Independence avenue. On the southwest corner of Cleveland and Independence avenue was a vacant lot on which was located defendant's grading camp.

Plaintiff and two other boys had been to a picture show and then to an ice cream parlor, after which they came up to a grocery store on Independence avenue opposite Cleveland avenue and sat for a short while on a box in front thereof. They finally started for their homes, two of the boys going east and plaintiff going west on Independence avenue. They had gotten about 100 feet from the grocery when Fred Brooks came out of one of the tents of the camp and began shooting at the two boys going east, and then fired at plaintiff going west, who by this time had gotten nearly to Monroe street. The ball struck plaintiff in the foot, causing a painful wound, with some likelihood of the injury being permanent.

The claim that the petition states no cause of action against the defendant Benjamin F. Brooks is untenable. It alleged that Fred Brooks was in the employ of Benjamin F. Brooks, and, while guarding the grading camp and in the scope of his employment, carelessly shot the plaintiff in the foot. This made out a cause of action against the defendant, even if the petition did also state that Fred Brooks shot the plaintiff maliciously and without any cause whatever. Besides, there was no attack made upon the petition before verdict, and, unless it stated no cause at all, an attack now is unavailing.

It cannot be successfully maintained that there was no evidence to show that Fred Brooks was within the scope of his employment as a servant of his father when he fired the shot. The evidence tends to show that the camp had been robbed a night or so before; that Fred had been instructed by his father to look out for robbers; that when Fred was arrested for the shooting, both he and his father, in their statements to the prosecutors, said Fred...