33 Mo. App. 250 | Mo. Ct. App. | 1888
delivered the opinion of the court.
The amended petition alleges that the plaintiffs were husband and wife, and the parents of Thomas P. Mangan, aged three years and five months ; that, on the eleventh day of March, 1885, the defendants (originally John O’Leary and appellant Foley), by the servant and employe of each of them, were driving and operating a certain wagon and team of horses and mules on the public streets and highways of the city of St. Louis, and while so doing, the defendants and each of them did carelessly, negligently and recklessly cause said wagon to run over and against said Thomas P. Mangan, thereby then and there inflicting great bodily injuries upon the said infant Thomas, from the effect of which he died on said day ; that,' by reason of the premises, they suffered damages in the sum of five thousand dollars, for which judgment is asked. The separate answer of appellant Foley was a general denial. The separate answer of the defendant O’Leary was a general denial, and also a plea of the statute of limitations of one year.
It should be here stated (though the record is obscure as to this fact) that the trial court held the plea of the statute of limitations made by O’Leary good, and the cause was dismissed as to him, and thereafter the cause proceeded to trial as against defendant Foley, as is shown by the fact that O’Leary’s name is dropped from the record.
On trial by a jury in the circuit court, the plaintiffs had judgment for seven hundred dollars damages, to reverse which defendant appeals. This case discloses very sad features, and however much our sympathies may be enlisted for those who have lost a bright child,
The plaintiff Annie Mangan testified that Thomas Mangan, co-plaintiff, was her husband, and Thomas P. Mangan was her child; that she lived, on March 11, 1885, at 804 South Twenty-second street, up-stairs; that she saw the child (Thomas P.) going down stairs about half-past two p. m. The child was three years and five months old, and went down stairs with a little girl between six and seven years old. Next saw the boy about five minutes after killed, on the corner of Twenty-second and Papin streets. This was about thirty yards from her house.
William Ward testified for plaintiffs that he was on the southeast corner of Twenty-second and Papin streets at the time of the accident. Saw the team in question driven by a colored man east along Papin street near the north side. He was driving in a trot, and as he crossed over Twenty-second street-crossing on the east side, he ran over the little child. The first witness saw of the child the front wheel was just passing over him. The driver was looking toward the foundry, and was sitting on the rear mule or horse. The foundry was on the south side of the street, and the .child on the north side. It was a four-horse team. Both wheels went over the child. It was Mr. Mangan’s child. The child was dead in two minutes after the hind-wheel went over it.
At the close of plaintiff’s evidence the defendant
The only evidence offered by defendant was that of defendant Foley himself. He testified that he never employed any one to drive the team but Crouch, never knew that Ramsey was driving it until after the accident. Never hired Ramsey, never saw him driving, never paid him, never authorized any one to employ or pay Ramsey.
Whereupon defendant renewed his demurrer to the evidence, which the court overruled and defendant again excepted.
It is unnecessary to set out the instructions, as in our view of the case, it is hardly necessary to consider them. If the plaintiff is not entitled to recover, it is by reason of the fact that the evidence fails to make a case by which the master can be held responsible.
The question is, under this evidence, can the defendant be held liable for the negligence and carelessness of the driver in charge of the team at the time of the unfortunate accident? The question is not whether the servant was trusted, but whether he was employed so as to make the master liable. The way it is always put is, “whether the man was about his master’s business at the time.” Now suppose Crouch had said to Ramsey, you take the team and drive your wife and children out for pleasure, would Foley have been responsible for an injury done by his negligent driving on that trip ? I think not. Crouch is employed to drive this team; instead of doing that which he is employed to do, he does something which he is not employed to do, i. e., hires another man, without the consent or approval of the master, to drive the team, the accident occurs, the master cannot be said to have caused the accident by his servant, 'and is therefore not responsible. Towanda Coal Co. v. Heeman, 86 Pa. St. 420. In the leading case
In this case the evidence does not show any authority, either special or general, by which we can infer even the right of Crouch to employ Ramsey to drive the team. In no way is the master connected with the employment of Ramsey, all the evidence being the other way, and upon what principle a master can be held for the act of a servant, whom he has not,employed and to whose employment he has not even consented, is quite difficult to comprehend. That a special agent, to
There was no testimony to show, by implication even, that defendant had gived Crouch authority to hire another driver on the day of the accident, or that defendant knew there was any other driver than Crouch in charge of his team on that day. To render one person liable for the negligence of another, the relation of master and servant, or principal and agent, must exist between them. Stevens v. Armstrong, 6 N. Y. 435 ; McGuire v. Grant, 25 N. J. Law, 356 ; Larock v. Railroad, 26 Hun, 382. It is absolutely essential, in order to establish a liability against a party for the negligence of others, that the relation of master and servant should exist, and it is not enough, in order to establish the liability of one person for the negligence of another, to show that the person whose negligence caused the injury was, at the time, acting under an employment by the person sought to be charged. It must be shown in addition that the employment created the relation of master and servant between them. Unless the relation of master and servant exists, the law will not impute to one person the negligent act of another. King v. Railroad, 66 N. Y. 181; Hexamer v, Webb, 101 N. Y. 377; Ricci v. Mueller, 41 Mich. 214; Brohl v. Lingeman, 41 Mich. 711.
If the plaintiffs were entitled to recover anything, they were entitled to the five thousand dollars sued for, and the fact of the jury returning a verdict for seven hundred dollars indicates a compromise between sympathy and law. The demurrer to the evidence ought to have been given. We may as well remark here that trial
The other judges concurring herein, the judgment of the lower court will be reversed.