State ex rel. Gosselin v. Trimble, 30641.

• Citation: 41 S.W.2d 801
• Decision Date: 05 September 1931
• Docket Number: No. 30641.,30641.
• Parties: THE STATE EX REL. FREDERICK GOSSELIN, by Next Friend, ELIZABETH GOSSELIN, v. FRANCIS H. TRIMBLE ET AL., Judges of Kansas City Court of Appeals.
• Court: United States State Supreme Court of Missouri

41 S.W.2d 801

THE STATE EX REL. FREDERICK GOSSELIN, by Next Friend, ELIZABETH GOSSELIN, v. FRANCIS H. TRIMBLE ET AL., Judges of Kansas City Court of Appeals.

No. 30641.

Supreme Court of Missouri.

Division One, September 5, 1931.

Certiorari to Kansas City Court of Appeals.

WRIT QUASHED.

Clif Langsdale for relator.

Plaintiff made a case for the jury and the opinion of the Kansas City Court of Appeals holding otherwise, should be quashed. Haehl v. Railway Co., 119 Mo. 325; Maniaci v. Interurban Express Co., 266 Mo. 633, 182 S.W. 981; Goucan v. Atlas Portland Cement Co., 298 S.W. 789; Uptegrove v. Walker, 7 S.W. (2d) 734.

Charles L. Carr and Hogsett, Smith, Murray & Trippe for respondents.

(1) The opinion of the Court of Appeals is in harmony with the controlling decisions of this court. Haehl v. Railway Co., 119 Mo. 339; Smothers v. Furnishing Co., 310 Mo. 144; Phillips v. Western Union Tel. Co., 270 Mo. 676; Wolf v. Terminal Ry. Assn., 282 Mo. 559; Walker v. Railway Co., 121 Mo. 575; Farber v. Ry. Co., 116 Mo. 81; Jackson v. Iron Mountain & Southern Ry. Co., 87 Mo. 422; Snyder v. Railroad Co., 60 Mo. 413. (2) The opinion is not in conflict with those cases cited by the relator. (a) The case of Haehl v. Railroad Co., 119 Mo. 325, is not in conflict with the opinion, but strongly supports it. The opinion cites and follows that case. (b) The opinion in Maniaci v. Interurban Express Co., 266 Mo. 633, was not concurred in by a majority of the court, and is not a binding precedent. Coleman v. Haworth, 8 S.W. (2d) 931; Viquesney v. Kansas City, 305 Mo. 488; State v. Frost, 289 S.W. 895; State v. Gochenour, 225 S.W. 690. However, there is no conflict with the Maniaci opinion, the facts in that case being so different as to make the case inapplicable. (c) There is no conflict with Goucan v. Atlas Portland Cement Co., 317 Mo. 919, because the opinion below gave the plaintiff the benefit of all favorable inferences. (d) The case of Uptegrove v. Walker, 7 S.W. (2d) 734, is a decision by a Court of Appeals, and it is immaterial on certiorari whether the opinion conflicts with such decision. State ex rel. Lumber Co. v. Robertson, 197 S.W. 79. In point of fact no such conflict exists. (3) The opinion below is in harmony with decisions generally, dealing with the scope of employment of a servant, committing an assault. Where a servant in anger commits an assault as a means of inflicting punishment, or gratifying feelings of malice or resentment, the act is not within the scope of his employment and the master is not liable. Collette v. Rebori, 107 Mo. App. 711; Grattan v. Suedmeyer, 144 Mo. App. 719; Brown v. Ice Co., 178 Mass. 108, 86 Am. St. 469; McDermott v. Am. Brewing Co., 105 La. 124, 52 L.R.A. 684; Cleveland Ry. Co. v. Huntington, 119 Ohio St. 518; Smith & Sons v. Dawson, 206 Ky. 107, 266 S.W. 926; Steinman v. Laundry Co., 109 Md. 62, 21 L.R.A. (N.S.) 884; Feneran v. Singer Machine Co., 47 N.Y. Supp. 284, 20 App. Div. 574; Kastrup v. Yellow Cab & Baggage Co. (Kan.) 282 Pac. 742; Bowen v. Railroad Co., 136 Fed. 306; Brown v. Railroad Co., 111 Kan. 338; Berry on Automobiles (4 Ed.) sec. 1204.

HYDE, C.

This is an original proceeding in certiorari in which the relator asks this court to quash the opinion of the Kansas City Court of Appeals in the case of Frederick Gosselin v. Yellow Cab Company, decided at its March term, 1930. Relator contends that this opinion is in conflict with the following former decisions of this court: Haehl v. Wabash Railroad Co., 119 Mo. 325, 24 S.W. 737, and Maniaci v. Interurban Express Co., 266 Mo. 633, 182 S.W. 981.

Respondents have filed a motion to dismiss on the ground that relator's brief does not include a fair and concise statement of the facts as required by rule 15 of this court. While relator's brief could be improved by including the matters referred to in the motion, because it is sufficient to show what the issues are, and because of our determination of the case, hereafter stated, the motion will be overruled and the merits considered.

The Court of Appeals finds these facts: "This is a suit for personal injuries. The appellant, a minor, was the driver of a taxicab. He drove eastward on Twelfth Street in Kansas City, Missouri, with the intention to deliver two passengers at the Muehlebach Hotel. Defendant's cab was standing in front of the hotel and the plaintiff attempted to stop his car in close proximity to the defendant's cab. Plaintiff's cab skidded, and as a result there was a slight collision which did not result in any injury to either cab. Plaintiff alighted from the cab and collected the fare from his passengers. Whereupon, one Daggett, the driver of defendant's cab, walked over to the plaintiff and struck him a terrific blow in the face, thereby causing injuries. Daggett had been sitting in defendant's cab with no passengers, and, so far as the evidence discloses, was doing nothing. Three witnesses testified to the assault. The doorman at the hotel testified that just after plaintiff had discharged his passengers Daggett seemed to be annoyed and jumped out of his car, met plaintiff face to face and said `What do you mean?' and then struck him without uttering a word. Another taxicab driver said that Daggett, with an oath, said: `Get that car off of mine.' This witness testified that at the time of the assault the two cars could not get closer than they were; that they were `jam up against each other.' All of the witnesses agreed that the plaintiff did not have an opportunity to say anything before he was struck. Upon the oral argument counsel for appellant disclaimed any contention that one cab was on top of the other, but the evidence indicates that they were in juxtaposition. The doorman testified that both cars left the scene at about the same time, but there was no evidence that plaintiff's car was moved first, nor was there any evidence from which it could be inferred that the position of plaintiff's car penned in the other car so it could not be conveniently moved. After the blow was struck nothing was done by Daggett to keep the cars from touching, nor to induce the plaintiff to take such action, except that soon after the assault, Daggett drove away."

The trial court directed a verdict for defendant, upon which judgment was entered and the Court of Appeals affirmed this judgment. In its opinion the Court of Appeals quoted from Haehl v. Wabash Railroad Co., 119 Mo. l.c. 339:

"The principle of respondeat superior applies only when what is complained of was done in the course of the employment. The principal is responsible, not because the servant has acted in his name or under color of his employment, but because the servant was actually engaged in and about his business and carrying out his purposes. He is then responsible, because the thing complained of, although done through the agency of another, was done by himself; and it matters not in such cases whether the injury with which it is sought to charge him is the result of negligence, unskillful or of wrongful conduct, for he must choose fit agents for the transaction of his business. But if his business is done, or is taking care of itself, and his servant not being engaged in it, not concerned about it, but impelled by motives that are wholly personal to himself, and simply to gratify his own feeling of resentment, whether provoked or unprovoked, commits an assault upon another, when that has, and can have, no tendency to promote any purpose in which the principal is interested, and to promote which the servant was employed, then the wrong is the purely personal wrong of the servant, for which he, and he alone, is responsible."

This, it said, "announces the rule which has been invariably followed in this State." The court then said:

"If there is any evidence which would justify a jury in finding that the assault made on the plaintiff was incident to an attempt upon the part of defendant's driver to do his master's business, then we must hold that the case was for the jury. There was no evidence introduced concerning any direct authority given by defendant to its driver; but it was within his implied authority to drive defendant's taxicab, protect the car in his possession from damage, and to eject trespassers. We must therefore determine whether there was any evidence to indicate that he was about the prosecution of such business, either in a rightful or wrongful manner. There was no evidence that the defendant's driver was attempting or making preparations to drive defendant's taxicab. The slight collision which did not result in any damage had already occurred, and there was no evidence to indicate that defendant's driver was attempting to prevent or repair damage to the car. No one was attempting to procure passage without payment of fare; and there was no evidence indicating that the blow was struck for the purpose of coercing the plaintiff into moving his car. It was struck simultaneously with the command, not to break down an exhibited inclination to refuse compliance, but evidently as a mere reaction to sudden anger. There is no evidence whatever that the defendant's driver was attempting to perform any duty owing to, or to exercise any power conferred by, his master.

"The words that were uttered by Daggett were not accompanied by a single act that was calculated to keep the cars from touching, nor were they preceded or followed by any such act. There is nothing in the evidence to indicate that such a separation would have saved defendant's car from damage, facilitated its operation, or prevented passage without the payment of fare. The touching of the cars was a harmless technical trespass to be expected in the defendant's business, and if it was within the scope of Daggett's employment to abate such a trespass even when it threatened no damage or interference with defendant's business (which we do not decide), yet the evidence as a whole shows nothing more than a mere...