Wellman v. Pacer Oil Co.

• Decision Date: 10 December 1973
• Docket Number: No. 56672,56672
• Citation: 504 S.W.2d 55
• Parties: Lionel R. WELLMAN and Bettie Wellman (Plaintiffs) Respondents, v. PACER OIL COMPANY (Defendant) Appellant.
• Court: Missouri Supreme Court

Page 55

504 S.W.2d 55

Lionel R. WELLMAN and Bettie Wellman (Plaintiffs) Respondents, v. PACER OIL COMPANY (Defendant) Appellant.

No. 56672.

Supreme Court of Missouri, En Banc.

Dec. 10, 1973.

Rehearing Denied Jan. 14, 1974.

Roger W. Penner, Joseph B. Bott, Meyer, Smith, Bott & Penner, Kansas City, for respondents.

John M. Kilroy, Fred Wilkins, Shughart, Thomson & Kilroy, Kansas City, for appellant.

HOLMAN, Judge.

This action arose out of an occurrence at a service station operated by defendant Pacer Oil Company when Allen Gamble, a station employee, shot Lionel Wellman (hereinafter sometimes referred to in the singular as plaintiff) inflicting serious injuries. Lionel filed suit against Gamble, Pacer, and Ben Clarke, the station manager, to recover for his injuries, and his wife Bettie joined in seeking a recovery for loss of services. Both plaintiffs also sought a judgment for punitive damages. Gamble defaulted and, at the conclusion of the evidence, the court directed a verdict for Clarke. The jury returned a verdict for Lionel against Pacer in the amount of $42,000 actual and $18,000 punitive damages, and in favor of Bettie in the amount of $2,500 actual and $2,500 punitive damages. The judgment is final as to Gamble. Pacer Oil Company (hereinafter referred to as defendant) has duly appealed. The notice of appeal having been filed prior to January 1, 1972, we have jurisdiction because of the amount in dispute. This case was first heard and submitted in Division One, but was thereafter transferred to Court en Banc by that division without the adoption of an opinion.

On July 2, 1967, plaintiff was a noncommissioned officer at Richards Gebaur Air Force Base located near Kansas City. Plaintiff testified that late in the afternoon of that day he took his family to a Kansas City park for a cookout; that during the process of cooking the food he drank four or five cans of beer; that they returned home at about 9:30 and he and his wife then went to visit her mother; that at about 10:30 p.m., he stopped at the service station at 18th and Paseo to obtain gasoline; that the attendant, Allen Gamble, serviced his car, including checking the oil; that he acted surly but did everything he asked him to do; that they left the station and about two blocks away the hood on his car 'flew up'; that he couldn't get the hood to stay fastened so he tied it down and went back to the station so he could advise the attendant that he had damaged his hood; that his car was a 1961 Falcon which had been driven 70,000 miles.

Plaintiff further testified that when he returned to the station there were a number of cars waiting to be serviced; that he waited for a time and then went over to Gamble who was servicing another car and accused him of 'messing up' the hood on his car and asked him to look at it and see if he he could fix it; that Gamble denied damaging the car and became belligerent; that he pursued the matter for about two minutes, and determined that Gamble was not going to do anything and that he should 'leave and come back tomorrow and see the manager'; that as he turned he heard his wife scream, 'Don't shoot my husband'; that he did not recall a shot being fired then, but realized that he was stunned and dazed; that he crawled around the front of his car and got in the driver's seat; that he then felt his temple and there was blood on his hand; that as he sat there trying to clear his head Gamble opened the door and shot him in the right leg; that just before the shot he had heard Gamble mumble, 'I'll take care of this right now'; that he managed to get the car started, and started to drive to General Hospital but was stopped by a policeman who obtained an ambulance and he was taken to the hospital.

Mrs. Wellman testified that after her husband started talking with Gamble she saw that Gamble was getting 'ruffled' and that she got out of the car intending to tell her husband to 'come on and let's go'; that after she got out she saw her husband turn to leave Gamble, at which time Gamble pulled a gun; that she then screamed, 'Don't shoot my husband' and that Gamble turned and fired a shot at him and her husband fell; that after her husband got back into the car Gamble approached and said, 'I am going to settle this right now'; that Gamble then fired a shot into the car; that her husband then left in the car; that a policeman came up and took the gun from Gamble and took her to where their car was stopped at a stop light about a block away; that she then went with her husband in the ambulance to the hospital.

Another eyewitness, Mr. Pettijohn, was seated in his car waiting for service. His testimony was about like that of the plaintiff, except he said that after the two men had argued for a time plaintiff stepped forward towards Gamble, at which time Gamble stepped back and pulled his gun and told plaintiff he was going to shoot him.

Another witness was Galen Hemmering, a Kansas City police officer, who was driving by in his car when he saw the argument between the two men. He stated that plaintiff put his hands up and shoved Gamble back 'like he was fending someone off, and at that time I saw a pistol in the right hand of Mr. Gamble'; that he then pulled his car into the station; that as he left his car and was approaching plaintiff's car he saw Gamble open the car door and shoot plaintiff; that he took the pistol away from Gamble and then followed plaintiff's car a short distance to where it had stopped; that he radioed for an ambulance and had plaintiff taken to General Hospital.

Plaintiff received serious and permanent injuries to his leg which will not be detailed here because not material upon this appeal.

Plaintiff read certain admissions filed by James Rush, Vice President of Pacer Oil Company, and from the deposition of Clarke, the station manager. From these admissions it appears that Gamble was working the 10 p.m. to 8 a.m. shift that night; that he had no supervisor and thus was in charge of the station; that it would be his duty to hear complaints, although not necessarily to adjust them; that it was the duty of Clarke, the manager, to hire and discharge employees; that Gamble was permitted to work about eight days after the shooting and was then discharged because of the shooting and for other reasons; that the employees of Pacer were not given any instructions one way or the other concerning the carrying of weapons during the time they were on duty.

There was no evidence that Clarke or anyone connected with defendant Pacer had any knowledge that Gamble carried a gun. There was also no evidence to indicate that Pacer knew or had reason to believe that Gamble was a person of violent tendencies at any time prior to the occurrence in question.

No evidence was offered by defendant.

The sole question presented upon this appeal is whether the trial court erred in overruling the motion of defendant for a directed verdict and its after-trial motion for judgment. It is the contention of defendant that no submissible case was made against it because Gamble's acts in shooting plaintiff were not within the scope and course of his employment. Obviously, if defendant is to be held responsible for the acts of Gamble on the occasion in question, it must result from the application of the principle of respondeat superior.

Many of the cases cited and discussed in the briefs deal with the question as to whether the business of the employer had been completed before the assault occurred and that, for that and other reasons, the assault was not inflicted with an intent to promote the business of the employer but was motivated by purely personal reasons of the employee, such as gratifying feelings of anger or resentment. We will not further pursue those questions because we have decided that this case should be ruled upon a theory or principle that has not heretofore been expressly applied in this state.

We have concluded that the actions of Gamble were so outrageous and criminal--so excessively violent as to be totally without reason or responsibility--and hence must be said, as a matter of law, not to be within the scope of his employment. In support of that ruling we approve certain statements in Restatement of Agency 2d, § 231, Comment a, as follows:

'The fact that the servant intends a crime, especially if the crime is of some magnitude, is considered in determining whether or not the act is within the employment, since the master is not responsible for acts which are clearly inappropriate to or unforeseeable in the accomplishment of the authorized result. The master can reasonably anticipate that servants may commit minor crimes in the prosecution of the business, but serious crimes are not only unexpectable but in general are in nature different from what servants in a lawful occupation are expected to do.

'A chauffeur, driving on an errand for his master, who knowingly drives on the left-hand side of the street or exceeds the speed limit, is still acting within the scope of employment. Likewise, a gardener using a small stick in an assault upon a trespassing child to exclude him from the premises may be found to be acting within the scope of the employment; if, however, the gardener were to shoot the child for the same purpose, it would be difficult to find the act within the scope of employment. So, if a servant is directed to use any lawful means to overcome competition, the bribery of employees of the competitor or the circulation of malicious stories, might be found to be within the scope of employment, while the murder of the competitor, although actuated solely by zeal for the master, would not be.'

Also, in § 235, in Comment c, it is said:

'Outrageous acts. The fact that an act is done in an outrageous or abnormal manner has value in indicating that the servant is not actuated by an intent to perform the employer's business. * * * In such cases, the facts may indicate that the servant is merely...