Smith v. Western Union Telegraph Co.

• Decision Date: 27 June 1921
• Docket Number: No. 13999.,13999.
• Citation: 232 S.W. 480
• Parties: SMITH v. WESTERN UNION TELEGRAPH CO.
• Court: Missouri Court of Appeals

232 S.W. 480

SMITH v. WESTERN UNION TELEGRAPH CO.

No. 13999.

Kansas City Court of Appeals. Missouri.

June 27, 1921.

Appeal from Circuit Court, Jackson County; 0. A. Lucas, Judge.

"Not to be officially published."

Action by Pearl Smith against the Western Union Telegraph Company, a corporation. From judgment for plaintiff, defendant appeals. Reversed.

New, Miller, Camack & Winger, Edwin Camack, and S. J. McCulloch, all of Kansas City, for appellant.

Blanton and Shannahan, of Kansas City, for respondent.

TRIMBLE, P. J.

A judgment for $1,500 was rendered in plaintiff's favor for personal injuries alleged to have been sustained by her in defendant's kitchen and lunchroom maintained by it for the purpose of preparing and furnishing food to its employees in its building in Kansas City. Defendant objected to the introduction of any evidence under the petition on the ground that it wholly failed to state a cause of action. This was overruled, and, at the close of plaintiff's case, a demurrer to the evidence was also overruled, whereupon defendant stood on its demurrer, and later appealed from the judgment rendered.

The plaintiff was a waitress in defendant's said lunchroom and kitchen, and her petition grounds her case upon the wrongful act of the cook employed by the defendant at said place, in that said cook, "while in the line of his employment and in the performance of his duties as the servant and employee of the defendant, took from a garbage can, which was then in said kitchen, a live mouse, and unlawfully, willfully, wrongfully, wantonly, and maliciously assaulted plaintiff, and threatened and attempted to put said mouse upon her person, and in pursuance of said threat and attempt did unlawfully, willfully, wrongfully, and maliciously greatly frighten plaintiff and assault her, and chase her round and about said kitchen, threatening and attempting to put said mouse upon her; and that, while plaintiff was being so pursued and was greatly frightened by said servant and employee of said defendant, she slipped and fell upon the floor of said kitchen with great force and violence, thereby" injuring her in certain specified particulars. No other ground of negligence was stated in said petition. Nor were any facts stated showing that the wrongful act of the cook occurred, not only while he was performing his duties, but that such act was in the scope of his employment.

The defendant having stood on its demurrer, the facts disclosed by the evidence in plaintiff's behalf are conceded, and such evidence must be accepted at its full face value with all reasonable inferences arising therefrom.

That evidence is that, as plaintiff was passing by the range, the cook called to her to "come here and see this mouse in the garbage can." Plaintiff went over and looked, and the cook told her to get the cat, and they would give the mouse to it. Plaintiff thereupon went out to get the cat, but, after hunting for it for a time, was unable to find it. While she was doing this the cook had secured the mouse, and when plaintiff returned the cook was standing holding the mouse in his hand behind his back. Plaintiff, upon returning, told the cook, "The cat is not here," or, "Can't find the cat," whereupon, when she had gotten within a few feet of him, the cook said to her, "All right, I'll put the mouse on you," and ran towards plaintiff who, being frightened at the prospect of having a mouse placed on her person, turned hastily and ran a short distance, possibly six feet, when she slipped and fell and sustained the claimed injuries for which this suit is brought.

We need not go into the question of whether the petition, in failing to set forth facts which would support the pleader's legal conclusion that the wrongful act of the cook was done while in the line of his employment and in the performance of his duties is so defective as to wholly fail to state any cause of action at all, and thereby be vulnerable to a mere objection to the introduction of evidence, when such vulnerability is to be applied on appeal after the trial court has overruled the objection and a trial is had. We are not compelled to go into the question of the sufficiency of plaintiff's pleading and of the manner in which defendant has chosen to object thereto, for the reason that another of defendant's points goes deeper into the case, and, a decision of such other point being, of itself, fatal to the case, a decision on the question of pleading is unnecessary.

That other and further point is that plaintiff's evidence is as insufficient to support a case as the petition is said to be. It is true her evidence shows that the cook's act in attempting to put the mouse on plaintiff was done while he was employed as a cook in that kitchen. However, it not only fails to show that such act was in the scope of his employment or in furtherance of his master's business, but, on the" contrary, discloses that such act had no relation to his employment. It was not an act that pertained to the duties of the servant, or that could in any way be regarded as a furtherance of the master's business, but was done by the cook solely in the accomplishment of his own object or purpose, namely, to have some mischievous fun by teasing or frightening plaintiff. There is nothing to show authorization or...