Walker v. Hannibal & St. Joseph Railroad Company

• Citation: 26 S.W. 360,121 Mo. 575
• Parties: Walker v. The Hannibal & St. Joseph Railroad Company, Appellant
• Decision Date: 08 May 1894
• Court: Missouri Supreme Court

26 S.W. 360

121 Mo. 575

Walker v. The Hannibal & St. Joseph Railroad Company, Appellant

Supreme Court of Missouri, Second Division

May 8, 1894

Appeal from Louisiana Court of Common Pleas. -- Hon. E. M. Hughes Judge.

Reversed.

Spencer & Mosman and Fagg & Ball for appellant.

(1) In order to render the master liable for the negligent act of his servant, the act of the servant must be done in the course of his employment. The master is never liable for the acts of the servant, which are not connected with the particular service he has employed the servant to perform. If the negligence occurred while the servant was doing something inconsistent with his duty to his master, the master can not be held liable. The act must pertain to the duties which he was employed to perform. If the intention of the servant in carrying and delivering the drills, in doing which the negligence occurred, was to serve himself, or to serve another than the master, the master is not liable. Garretzen v. Duenkel, 50 Mo. 104; Cousins v Railroad, 66 Mo. 576; Mitchell v. Crassweller, 13 Com. Ben., 236; McClenaghan v. Brock, 5 Rich. (S C.) 17; Stevens v. Woodward, 6 Q. B. Div. 318; Coal Co. v. Heeman, 86 Pa. St. 418; Farber v. Railroad, 32 Mo.App. 381; Jackson v. Railroad, 87 Mo. 430; Murphy v. Caralli, 3 Hurls & C. 462; Foster v. Bank, 17 Mass. 479, loc. cit. 508. (2) The courts have held that no recovery can be had against the master under these precise circumstances. Cunningham v. Railroad, 31 Upper Can. Q. B. 350; Walton v. Car Co., 139 Mass. 556. (3) A master has a right to determine himself, and assign to his servants their duties, and no assumption by a servant of duties not assigned to him, will bring those duties within the course of his employment, as defined by the master. Marion v. Railroad, 59 Iowa 428; Cunningham v. Railroad, 31 Upper Can. Q. B. 350; Murphy v. Caralli, 3 Hurls & C. 462; Oil Creek R'y v. Keighron, 74 Pa. St. 316; McDaniel v. Railroad, 8 S. Rep. 41; Flower v. Railroad, 69 Pa. 210; Sherman v. Railroad, 72 Mo. 62; Railroad v. Harrison, 48 Miss. 112. (4) It is perfectly clear that James, the train baggage man, was a special agent, appointed for a particular purpose of a very restricted limited nature, and that plaintiff knew it, and the case falls within and is governed by the rule applicable to special agents. "Whoever deals with an agent constituted for a special purpose, deals at his peril when the agent passes the precise limit of his power." 2 Kent Com. [7 Ed.], p. 793; Noyes' Maxims, chap. 44; 1 Parsons Cont., 41; Tate v. Evans, 7 Mo. 420; Wheeler v. Given, 65 Mo. 92, 93; Maybry v. Railroad, 75 Mo. 492; Tucker v. Railroad, 54 Mo. 81; Choteau v. Filley, 50 Mo. 174. It is not a question of scope of the train baggage man's duty, but the question is, did he exceed or transcend his powers and authority? If he did, the defendant is not bound. Oxford v. Peters, 28 Ill. 434; Golden v. Newbrand, 52 Iowa 59. (5) As James was a special agent whose duties and course of employment only authorized him to act for the defendant as the custodian en route of the baggage of its passengers, and as these drills did not belong to any passenger, and clearly were not baggage, the law would hold that the baggage man was acting for himself and not the defendant, in receiving, carrying and delivering these drills. Satterly v. Groat, 1 Wend. 272; Bard v. Yohn, 26 Pa. St. 482; Brown v. Purviance, 2 H. & G. (Md.) 316; Borden v. Bolt, 7 D. & L. 87; Sygo v. Newbold, 24 Eng. L. & Eq. 507; Burke v. Shaw, 59 Miss. 443; Marrier v. Railroad, 31 Minn. 351; Rayner v. Mitchell, 2 C. F. D. 355. (6) James swears that he carried the drills "as a pure accommodation to the lime company," and in this he is fully corroborated by plaintiff. It was a purely voluntary act on the part of James, outside the course of his employment, for the consequences of which the law would not hold the master liable, and certainly the law would not hold the master liable to the party who had induced the servant to perform for him a gratuitous act without the master's consent. Olive's Adm'r v. Marble Co., 103 N.Y. 292; Choteau v. Steamboat, 16 Mo. 216; Hoar v. Railroad, 70 Me. 65; Snyder v. Railroad, 60 Mo. 413. (7) Under the evidence in this case, the law will hold that James, in receiving, carrying and delivering these drills was pro hac vice the servant of the plaintiff, and not of this defendant. Railroad v. Keighron, 74 Pa. St. 316; Paint Co. v. Conlon, 92 Mo. 229; Adams v. Cost, 65 Md. 264. (8) Where A surreptitiously employs the servant of B to perform for him a service, the law conclusively presumes that in that service he is the agent of A alone, and A will not be heard to say that the man was B's agent in the performance of the service. Fitzsimmons v. Express Co., 40 Ga. 330; Robinson v. Jarvis, 25 Mo.App. 426. (9) Walker knew that the carriage of said drills was inconsistent with the duty of a train baggage man; was in violation of defendant's rules, and was in fraud of its interests and business, and the case falls clearly under the decision in Snyder v. Crawford, 74 Mo.App. 8; Desteiger v. Dallington, 17 Mo.App. 288; Lewis v. Stack, 27 Mo.App. 119.

Harrison & Mahan for respondent.

(1) The defendant should have shown plaintiff ordinary care. It was defendant's duty to maintain the place where he put the letters on its train in a reasonably safe manner, and, having failed to do so, defendant is liable. Moore v. Railroad, 84 Mo. 487; Bennett v. Railroad, 102 U.S. 577; Holmes v. Railroad, 4 Ex. L. R. 254; 1 Thompson on Negligence, 313; Wharton on Negligence, sec. 821. (2) The inference is irresistible, that defendant acquiesced in, and consented to, its baggage men carrying and delivering the drills; and under such circumstances the defendant is clearly liable for the negligence of its baggage man. Reilly v. Railroad, 94 Mo. 600; Carpenter v. Railroad, 21 Am. & Eng. R. R. Cases, 331; Railroad v. Johns, 34 Am. & Eng. R. R. Cases, 480; Bishop on Non-Contract Law, sec. 609; Cooley on Torts, pp. 538, 539; Edwards v. Thomas, 66 Mo. 468; Wharton on Agency, secs. 476 and 477; Brannock v. Elmore, 114 Mo. 55; 16 Am. & Eng. Encyclopedia of Law, 791, and cases cited. (3) "Proof of the notoriety of a fact is competent to show notice or knowledge of it by another." Crane v. Railroad, 87 Mo. 588; Johnson v. Hurley, 22 S.W. 492; Gurley v. Railroad, 93 Mo. 451; Barry v. Railroad, 98 Mo. 63; McGee v. Railroad, 92 Mo. 220; Wood on Master and Servant, sec. 401, p. 776; Lawson on Custom, 41 and 42. (4) "He who has knowledge of facts sufficient to put him upon inquiry, is chargeable with notice of the fact which inquiry would disclose." Eyerman v. Bank, 84 Mo. 408; Mason v. Black, 87 Mo. 342; Meier v. Blume, 80 Mo. 184; Fellows v. Wise, 55 Mo. 413. (5) Mr. Beeler, one of defendant's executive officers, testified that conductor Hance had full charge of the train, except of express matters. Now, the knowledge of the conductor was the knowledge of defendant. He represented the company, and the information he received while in the line of his duty, was information given to the company. Smith v. Railroad, 92 Mo. 369; Hoke v. Railroad, 88 Mo. 360; Holden v. Bank, 72 N.Y. 286; Whithead v. Railroad, 99 Mo. 271; Mahill's Mfg. Co. v. Camp, 49 Wis. 130; 1 Redfield on Railways [5 Ed.], 537, 538. (6) The authority of both, agent Stover and baggage man James, was apparent and binding on defendant. Evans on Ag., 594-606; Wharton on Cont., secs. 90, 130, 269; Express Co. v. Schlessinger, 75 Pa. St. 246; Evans on Ag., 193, note.

OPINION

Burgess, J.

Action to recover damages on account of personal injuries sustained by plaintiff by reason of the alleged negligence of the servant of defendant.

The evidence showed that the plaintiff was the general foreman in charge of the works of the Hannibal Lime Company, at Bear Creek, a small station on the line of defendant's road six miles west of Hannibal; that the office of the Lime Company was in that city; that plaintiff had charge of all its business, including the shipment of lime from Bear Creek, and had been such foreman for five or more years previous to the injury; that he was accustomed to send iron drills, used for getting out the rock to make lime, to a blacksmith at Withers' Mills, two miles west of Bear Creek, to be sharpened. The drills were from five to six feet in length, weighing some thirteen pounds each. They were sometimes sent on wagons, sometimes on hand cars and sometimes in defendant's baggage car. No instructions or directions were given as to the manner in which the drills were to be returned by the blacksmith. The blacksmith at Withers' Mill, Jacob Stover, was postmaster at that place, and was also defendant's ticket agent and had been for about fifteen years before the accident. After the drills were sharpened by Stover he would take them from the shop to the station house and lay them down on the railroad platform in front of the depot; they were usually wired three together. He would then tag the drills "Hannibal Lime Company, Bear Creek Station," or if not so tagged, he would mark them with chalk, in the same way. He would then, upon the arrival of defendant's passenger train from the west, put the drills in the baggage car, in charge of defendant's baggage man, who would receive them, place them in the car and deliver them to the Lime Company at Bear Creek Station. If the train stopped, he would drop them off at the platform, and if it did not stop, he would throw the drills off anywhere east of the rock chute. This way of delivering the drills the baggage man had continued for ten or fifteen years before and up to the day of the injury. It was a custom of long standing, and the drills were so delivered as frequently as from three to five times...