59 Mo. App. 354 | Mo. Ct. App. | 1894
This is an action for damages because of an assault on the plaintiff’s person, committed by defendant Pox, December 22, 1892, at Altmont station, in Davies county, -on the line of the Chicago, Rock Island & Pacific Railway. At the trial below there was a verdict and judgment for $2,000 against all the defendants and they have appealed.
The material facts are undisputed. For some time prior to December 8, 1892, plaintiff, Canfield, had been in the employ of the Rock Island Railway Company as ticket agent and telegraph operator at Cameron, Missouri . During the time, too, and since, defendant Cook was assistant general superintendent of the line, defend
On said December 8, 1892, Canfield, as a member of the “Order of Railway Telegraphers,” engaged in a “strike” and left the employment of the railway company. These strikers had been annoying the railroad company by visiting its stations and inducing the telegraph operators,- not connected with the O. R. T., to join them and leave the service of the company. To obviate this, Assistant Superintendent Cook, detailed Eox, the brakeman, and sent him out on the road to watch for these strikers, and when any were found meddling with the operators he, Fox, was authorized to drive them off, or expel them from the company’s offices. Eox had been a prize fighter in Iowa, which it was supposed qualified him for the work assigned. His duties were succinctly stated in the following question and answer given at the trial:
“Q. Then your duties were to prevent such persons as you might determine in your own way as to belong to the Order of Telegraphers, or was talking improperly with any of defendant’s operators, from so doing, were they not? A. Yes, sir; and, if necessary in my opinion, to resort to force to prevent any such persons from talking to defendant’s operators or visiting the private offices.”
On December 22, Canfield appeared at Altamont • station, and his purpose was, very clearly, to induce the operator there to join the O. R. T. and go out on the strike. As to what occurred there, he and Eox disagree, in some minor particulars. Canfield sa^s he was standing in the public waiting room talking to the agent when the assault was made. “I was,” he testified, “talking there when this man (referring to Fox) came up and either touched me on the shoulder, or I
Eox, after saying that he found Canfield in the private office of the company talking to the operator about the strike, etc., thus details the circumstances of the assault:
“Q. Did you speak to Canfield while he was in that private office? A. Yes, sir.
“Q. What did you say to him? A. I asked him what business he had in there.
ilQ. What did he answer, if anything. A. He didn’t answer anything; he just stood and looked at me.
“Q. Was that before or after this ‘scab’ talk he had with the operator? A. It was afterwards.
“Q. Did you say anything more to him? A. I told him to get out.
“Q. Well, what did he do? A. He didn’t say anything; he didn’t go.
“Q. What did you do? A. I hit him.
“Q. How often, whereabouts and what with. A. I hit him with my fist once alongside of the nose.
ltQ. Did you knock him down? A. No, sir; he staggered up against the bill press that was standing there.
“Q. Did you do or say anything else to him? A. I told him to clear out of there and let these operators alone.
“Q. Did he go then? A. Yes, sir.”
1. Counsel for defendants have devoted much of their brief and argument to alleged erroneous instructions given by the trial court. As we view it a dis
That Fox committed a legal outrage on the plaintiff, and for which he is bound to respond in damages, can not be denied. The assault can not be justified under the law, even admitting the facts to be as he (Fox) relates them. Assume it to be true that Canfield had wrongfully invaded the privacy of the railroad office, and was wrongfully interfering with the company’s employees in the discharge of their duties, and yet his, Fox’s, conduct was unwarranted. He asked Canfield what he was doing there, and ordered him out; says that Canfield simply stood still, said nothing, and looked at him (Fox). Thereupon, without more, he, Fox, struck Canfield in the face. If the plaintiff was intruding himself where he had no right to be, then Fox may have ordered him away and, if he refused, then Fox would have been justified in using such force as was reasonably necessary to expel him; but there was nothing in the circumstances to warrant this brutal assault.
As to the defendant railway company, it was clearly liable for the assault, because the same was committed by its agent or servant while in the performance of the work entrusted to him. It is now the well settled rule, “that the master is liable for all acts committed by his servant, whether unlawful or not, that are within the scope of the authority conferred upon him by the master either expressly or by fair implication.” Wood on Master & Servant, sec. 309. See, also, Boogher v. Life Ass’n, 75 Mo. 319, 324;
We hold, then, that, under the testimony considered in its most favorable light for the defense, a clear case was made against the defendants, Fox and Eailway Company. The servant while in the performance of the master’s work which had been entrusted to him wrongfully assaulted a third person; and for this tort either or both are liable in damages, and both may be joined in the same suit. Wharton on Agency, sec. 546; Wood on Master and Servant, sec. 325.
3. Counsel for defendants further assail the judgment on account of the damages awarded—objections being taken both as to the instruction -in that behalf, as well as the amount of the verdict. At plaintiff’s instance, the court told the jury, “that in assessing plaintiff’s damages, if they find for him, they are not limited to the physical injury inflicted, or shame, humiliation or disgrace caused plaintiff (if any), by said acts and conduct of said Fox, but they may, in addition thereto, if they find the assault of plaintiff by said Fox was wanton and malicious (and, by the term malicious, is not meant spite or ill will, but the intentional doing of a wrongful act without just cause or excuse), they may allow such further damages, known in law as exemplary, as will be a punishment to defendant and a wholesome warning to others, in all not to exceed, however, $2,000.”
After a careful consideration of the argument of defendant’s counsel, we fail to discover, either in the form of this instruction or in the extent of the damages awarded, any substantial error. In actions of this nature, the conduct and motives of the defendant are always open to inquiry in determining the amount of damages. “If in committing the wrong complained of he acted recklessly, oppressively, insultingly or wilfully and maliciously, with a design to oppress and injure, the jury, in fixing the damages, may disregard the rule of mere compensation; and beyond that, may, as a punishment of the defendant, and as a protection to society against the violation of personal right and social order, award such additional damages as' in their discretion they may deem proper.” 1 Sutherland on Damages [2 Ed.], sec. 392.
After a patient consideration of all the points made in brief, we discover no substantial reason for disturbing the judgment as to defendants Pox and the railway company. We, then, affirm the judgment as to said defendants;- but, for reasons already expressed, the judgment as to defendants Cook and Tinsman will be reversed.