43 Mo. App. 398 | Mo. Ct. App. | 1891
Lead Opinion
The petition in this case is as follows : “ Plaintiff states that the defendant is, and at all times hereinafter mentioned was, a corporation
“And for a further and separate cause of action, plaintiff states that, being so employed by defendant in manner and form aforesaid, and after receiving the injuries hereinbefore mentioned, defendant compelled
The answer was a general denial, and a plea of contributory negligence. There was a trial before a jury, and a verdict and judgment in favor of the plaintiff in the sum of $1,500 on the first count, and $500 on the second count.
The plaintiff gave evidence tending to show that the defendent was, at the time spoken of, a corporation, owning and operating a steamboat, which plied between St. Louis, in Missouri, and Peoria, in Illinois, on the waters of the Mississippi and the Illinois rivers ; that the plaintiff was employed as a deck-hand or a “ roustabout ” on the said steamer ; that the roustabouts were under the command of an officer of the defendant known as the second mate ; that it was their duty, while so under his command to load the boat with the coal necessary to be consumed on its voyage ; that, for the purpose of holding the coal necessary to be taken on board, there was a large coalbin constructed upon the boiler deck, raised above the deck from three to four feet in height; that, in order conveniently to lift the boxes of coal over the top of this bin so as to empty them therein, a structure had been made by the second mate, by placing three empty coalboxes end
On the other hand, the defendant’s evidence was to the effect that the person, called by the plaintiff’s witness the second mate, was not an officer of the boat, but was merely a stevedore, and that the structure used by the men in loading the coal was erected not by this stevedore, but by another deck-hand named Russell.
Under the second count the plaintiff gave evidence to the effect that, after he had received the hurt and while his hand was bleeding and swollen, and while
On this state of the evidence the court instructed the jury upon the first count as follows : “If the jury believe from the evidence that, in May, 1888, the plaintiff was in the employ of the defendant as a deck-hand on its steamer, the Calhoun, and that the plaintiff was engaged in carrying coal onto the boat and putting it into the bin, and that the officers of the defendant had caused a gang-plank to be constructed on the boat, by placing coalboxes on top of each other with a plank on the top of the same, and then placing a plank from the top of the coalboxes to the deck of the boat, so as to have the deck-hands walk up the plank to dump the coal in the coalbin, and if said plank or gangway so constructed was negligently constructed in a dangerous or unsafe manner, and was not, as constructed, a proper and safe appliance for the purpose it was used for ; and if the defendant or its officers knew the condition of said gang-plank,and if the plaintiff was injured by the giving away, or falling, or breaking of said gang-plank by reason of the dangerous or unsafe manner of its construction, and was not guilty of any negligence himself which directly contributed to the happening of the injury, then the jury should find for the plaintiff on the first count of the petition.”
The court also submitted the issues under the second count to the jury in the following instruction: “If the jury believe from the evidence that, on or about
The defendant requested, and the court refused, the following instruction: “Although you may believe from the evidence that the ’gangway was unsafe and insufficient, and that in consequence thereof the plaintiff’s finger was injured, yet, if you believe from the evidence that such gangway was constructed by fellow-servants of the plaintiff (that is servants engaged in the same kind of work as the plaintiff), then the plaintiff is not entitled to recover on the first count of his petition, and you will return a verdict for the defendant on that count.”
I. The first assignment of error' is, that the court should have given an instruction requested by the defendant to the effect that, under the pleadings and the evidence, the plaintiff was not entitled to recover. This court is of opinion that this error is not well assigned. It is predicated upon the ground that the defect in the plank, which, according to the plaintiff ’ s evidence, caused the injury, was an obvious defect, and
II. The next assignment of error presents more difficulty, but we have concluded that it must be resolved against the defendant. . It is that the court erred in refusing the defendant’s instructions above set
It remains to inquire whether the defendant is entitled to complain of the failure of the court to embody a similar principle in its instruction given under the first count at the request of the plaintiff. It is plain that the failure of the court to do this was mere non-direction, and. that the case comes within the principle that mere non-direction is no ground of reversing a judgment in a civil case. If the learned counsel for the defendant could not frame an instruction upon this hypothesis which was good in point of law, the' court cannot be put in. the wrong for failing to do it of its own motion.
III. The third and last assignment óf error raises the question, whether there was any case to go to the jury under the second count, and the further question whether the court correctly submitted the issues under that count to the jury. We are of opinion that there w7as no case to go to the jury under the second count. The general rule is that the master is not liable for the wilful and criminal acts of his servants. McKeon v.
The case of Schmidt v. Adams, 18 Mo. App. 432, which has been cited to us on behalf of the plaintiff, is perhaps as good an illustration of this principle as any. In that case the defendant instructed his son, who thereby became for the purpose his servant, to drive the plaintiff ’ s cattle out óf and away from the defendant’s field. In executing this order, the defendant’s son worried the plaintiff ’ s cattle with dogs, and it was held that, for this excess of force, the plaintiff could recover damages from the defendant. But here, the very act which the defendant ordered his son to do implied the use of the necessary force to accomplish it; and, as the court justly observes, the injury committed consisted in the use of unnecessary or unlawful force. We do. not question the soundness of the reasoning of the court, as applied to the fact of that case, which was that, where the servant commits an injury while engaged in serving his master, and in carrying out his master ’ s purpose, “ the master will be responsible, whether'the Avrong be occasioned by negligence or by a wanton or
We also lay out of view a class of cases, where the master is held liable for the wanton, malicious or even criminal act of his servant, where the act is not done within the scope of the servant’s employment. Such is the case where the master has assumed a duty to the person injured, or where a duty to.the person injured has been cast upon the master by operation of law by reason of the employment in which the master is' engaged, which duty he undertakes to perform through a particular servant, and where the act of the servant, from its very nature, is a violation of that duty. A common illustration of this is the case where a railway conductor commits a wanton and malicious assault upon a passenger to accomplish some purpose of his own. Here, the railroad company has engaged to carry the passengers safely and without violence or molestation from.its own servants, and the same duty has been cast upon it by operation of the law by reason of its employment as a public carrier. This duty from its very nature, when assumed by a corporation, can only be performed by agents or servants; and, when these agents or servants do an act toward the passenger, which from its very nature is a violation of this duty, then, upon plain grounds, the master is liable. Such was the case where the supreme court of Wisconsin held a railway company liable in damages for the act of a conductor in kissing a female passenger. Craker v. Railroad, 36 Wis. 657.
Neither do we concur in so much of the reasoning of the learned counsel for the appellant as places- the liability of the defendant, if any, on the theory of an implied authority to his vice-principal to do the particular act complained of. The doctrine of respondeat superior does not rest upon any such basis. If it did, there could' seldom be any liability in a case of a master who is a natural person, and never in the case of one
But it does not follow from this that every act which a servant may do, while acting about the business of his master, is one for which the master will be liable. Something more is required. The act must not only be done while the servant is employed about the business of his master, but it must pertain to the duties of the
Neither is any ground gained in such an argument by quoting admiralty decisions to the effect that the master of a ship has the power of chastisement over a seaman. The relation of master and seaman in the admiralty law is in many respects different from the ordinary relation of employer and employe upon land. The sailor, who ships for a voyage, binds himself to remain in the service until the end of the voyage. On grounds of public policy, and having reference to the safety of life and property at sea, the law does not permit him to determine that relation capriciously, or to abnegate its duties while the period of the contract continues. But the case of a.steamboat on the, Mississippi river is not the case of a ship at sea. The relation of employer and employe on such a steamboat, at least when it arises in the courts of Missouri, is governed not by the admiralty law, which is administered in the courts of the United States, but by the common and statute law of Missouri. By that law an employer has no power to use force or violence in order to compel his employe to keep his contract, — that is to perform the labor which he has undertaken to do. As the employer himself has no power to use force or violence, the use of force or violence by his vice-principal cannot be regarded as within the scope of his employment; for it cannot be intended, in the absence of express evidence, that such
The case is not one, where the superior servant or vice-principal had any authority- from the general master, either express or implied, to use violence under any circumstances whatever in accomplishing the purposes of the master. It is, therefore, not like the case where the railway conductor wrongfully expels the passenger. Nor was it a case where the master had assumed, by contract or otherwise, any special duty toward the servant injured of protecting him from injury on the part of another servant, such as the duty which the carrier assumes towards his passenger of transporting him safely and without harm from one place to another. . The act done to the plaintiff by the superior servant was, therefore, neither an act done in the scope of his employment, nor an act done in violation of any special duty, which the general master has assumed towards the plaintiff, which duty the immediate actor was appointed to perform. It stands in law as his mere wanton and criminal act, for which not another person, but himself, is liable.
It is worthy of note that, notwithstanding the diligence which counsel for the plaintiff has displayed in
The act of the second mate in compelling him to labor, after his hand had been hurt, rests upon the same principle as his act in committing a battery upon him. The relation between the defendant and the plaintiff being that of contract merely, the plaintiff was not compelled to labor if he did not see fit to do so. He was at liberty to quit the employment subject to the liability of the loss of his wages, and to any liability for damages for the breach of his contract in case of improperly quitting it. If the defendant cannot be held liable for the actual violence which its superior servant committed upon the plaintiff, for equal reasons it cannot be held liable by reason of the act of its superior servant in compelling the plaintiff to labor through fear of committing violence upon him.
In such a case as this our ordinary judgment would be to reverse the judgment of the circuit court, and remand the cause with directions to the circuit court to enter judgment upon the verdict as to the first count, and for the defendant as to the second count notwithstanding the verdict. But as the plaintiff’s right of recovery on the first count even is doubtful under the evidence, and as the verdict on the first count may have been influenced by the evidence received under .the
Rehearing
ON MOTION POE EEHEAEING.
In view of an able and earnest argument made by the plaintiff’s counsel in moving for a rehearing of this cause, we have re-examined the questions involved in the second count of the petition. We concede that the language used by some of the judges is broad enough to warrant an action of that character, but we must repeat that no adjudged case has been found and that certainly none has been cited to us, where a master has been held liable for the acts of a superior servant in beating a subordinate for the purpose of making him work, even though the battery was for the admitted purpose of furthering the master’s business.
We have not held, as counsel assumes, that a master may not be held liable for a battery committed by liis servant under some circumstances, nor have we held that there is a difference in thát regard between the servant of an individual and the servant of a corporation. The proposition that a master may be held thus liable, whether an individual or a corporation, is too well settled to be questioned, and while some cases doubt the liability of the master where the battery is wilful and malicious, there are well-reasoned cases which hold the master liable even in the latter event. On the other hand no case can be found, which places the liability on the ground that the servant is supposed to
The proper limitation, recognized in all the cases, is that the wrong done must be within the scope of the servant's employment. Where the authority given to the servant implies the use of force, the master is always responsible for the excess of force used. This is the rule in many cases, even though the excess of force used is wilful. The master, having authorized the servant to use force, is liable for its abuse. It is that principle which upholds the liability in cases of collision and kindred cases. The case of Levi v. Brooks, 121 Mass. 501, which is the strongest case cited by plaintiff’s counsel is strictly within the limit, because there, the servant being intrusted with the seizure of goods, was impliedly authorized to use force in case of resistance. No other safe rule can possibly be adopted without making the master an insurer of his servant’s conduct to all fellow-servants and third parties on the theory, that the master is responsible for his acts simply because they were done in the supposed interest of the master. Applying the test above stated we are bound to adhere to our original opinion, that the direction by one servant of others in doing the master’s work where all are freemen cannot imply the use of force, and hence the use of force in making his subordinates work is not within the scope of the superior servant’s emifloyment.
All the judges concurring, the motion for rehearing is overruled.