161 Mo. App. 483 | Mo. Ct. App. | 1912
Plaintiff brought this action, joining her husband as a party plaintiff. The action is based on a charge of malicious assault and battery, accompanied by abusive and profane words. She recovered judgment in the trial court for $1,000 actual and $7,000 punitive damages. The trial court suggested a remittitur of $5,000 of the punitive damages, which the plaintiff consented should be entered, and judgment was then rendered for $3,000, and defendant appealed.
There was evidence in plaintiffs’ behalf that two negroes in defendant’s employ, or at least one of them, assaulted plaintiff and cursed and abused her. The facts leading up to the assault are substantially as follows : Defendant brought an action of replevin against plaintiff’s husband before a justice of the peace for a cooking stove. The justice issued a writ to the constable, commanding him to summons the husband to appear for trial and to take and deliver the stove to defendant. The constable went to plaintiff’s house, but. the husband was absent. He notified plaintiff of his writ and suggested that she could see defendant and that she could put up a delivery bond. She said she
Liability in this case depends upon whose servants the negroes were, in the particular wark in hand when the assault was committed. In our opinion they were the servants of the constable. It was his duty, in obedience to the command of the writ of replevin, to take the stove “from the possession of the defendant and deliver the same to the plaintiff.” [Sec. 7763, R. S. 1909.] Defendant was under no obligation to take the possession from plaintiff’s husband; indeed it would have been unlawful for it to have done so. Nor was there any duty or obligation to assist the constable. It was the constable’s sole business to .take the property from the premises and deliver it over to defendant. There fore, the acts of the negroes in taking the possession of the stove from plaintiff’s husband were the acts of the constable and not defendant. The acts were not done in the prosecution of the defendant’s business, for the plain reason that it was not its business to take the property. The fact that the negroes were under the general employment of the defendant, does not make it liable for a wrong committed by them in the particular service and control of a third party. The defendant had no right of control, nor did it pretend to exercise any control of the negroes, in the work of securing possession from plaintiff’s husband. If the negroes displeased the constable by their conduct, he had the right to end their service to him and to order them back to the wagon to wait his delivery of the stove to them.
Defendant had not even loaned its servants to the constable, for it is made manifest by the evidence that the only purpose in sending the wagon to plaintiff’s premises was to receive the stove which the constable was commanded to deliver to it. But if it be
What we have written leaves wholly inapplicable the contention that the master is liable for the acts of his servants in the line of that employment, even though not ordered or expected to be committed. We are also cited to many authorities which we likewise think are not applicable to the facts in this controversy. This is not a case where the process is invalid, or the property of third persons was taken. The replevin in which defendant here was the plaintiff was founded on a valid writ, and it was placed in the hands of the proper officer for service in a lawful manner. A fair consideration of the evidence shows that was really all the defendant did in this case. Much stress and frequent iteration is made of an expression by a witness that defendant’s manager said they would send the negroes “to get” the stove. Certainly that was what they were sent for, but not to set the constable.and his writ aside and, themselves, take the stove from the plaintiff. They were “to get the stove” which the officer was to take from plaintiff’s possession and deliver to them. If on that mission the officer made assistants of them in the performance of his work and duty, they were his servants.
The defendant in causing the valid writ to be put in the officer’s hands did not assume liability for the officer’s unlawful conduct, or that of his servants, in executing the writ. [Mechem on Public Officers, Sec. 904.] In Sutherland v. Ingalls, 63 Mich. 620, it is stated, that a landlord placed a writ of possession in the hands of a sheriff, who meeting with opposition from the wife of the tenant, handcuffed her, and kept her in that condition while he executed the writ, and it was held the landlord was not liable to her suit in trespass. It was said that:
*491 “No one can be held liable as a trespasser for employing an officer to execute lawful process. It is the right of anyone to have his regular and valid writ served and enforced, and the officers of the law are bound to perform that duty, and cannot be blamed for doing it in a legal manner. Everyone has a right to suppose that the ministers of the law will not abuse their functions, and no one who lawfully employs them is liable if they do. It is only where the party himself orders or encourages lawlessness that he can be treated as a joint wrong-doer, and then he is liable because actually a trespasser, and to the extent of his own misconduct.”
We are indebted to respective counsel for a thorough investigation and presentation of the case. The judgment will be reversed.