270 Mo. 676 | Mo. | 1917
Lead Opinion
— This is a suit for damages suffered by plaintiff under the following circumstances:
The defendant Western Union Telegraph Company is a New York corporation engaged in the business of receiving, transmitting and delivering communications by telegraph between different places in the United States, including the city of St. Louis, in which it had offices for that purpose, among which was an office on the southwest corner of Olive Street and Grand Avenue. Olive Street, at that place, extends east and west while Grand Avenue crosses it, ■ extending north and south. The defendant Kenzell, at the time of the injury, which occurred about December. 28, 1912, was a messenger boy sixteen years old, in its service, whose duty it was to deliver telegrams. The evidence tends to show that about seven o’clock in the evening of that day the plaintiff was standing on Grand Avenue in front of the show window of a candy store on the southeast corner, waiting for an approaching automobile to pass, so that she could step down into the street and cross to the southwest corner, on which the telegraph office was situated. A news boy with a bundle of papers under his arm stood on the sidewalk about seven feet north of her when the defendant Kenzell came running from the east along the sidewalk on the south side of Olive Street with a telegram in his hand, and said to the news boy “give me a paper.” The news boy refused, when Kenzell snatched one from the bundle and ran, looking over his shoulder, and collided with plaintiff with such force that she was
On the other hand, neither beasts nor inanimate things participate in these public uses of their own right, but only have status in the public highway by right of their owners. For this reason one who employs a beast upon the street must do so under such management and control as will provide reasonably for the safety of persons and their property. • Had this boy
These principles are familiar to all, and are firmly embedded in the foundation of our jurisprudence, and we would not feel that it is necessary to mention them were it not tfiat this unfortunate accident has already been the subject of'adjudication by an appellate court of this State in a suit brought by the husband of plaintiff (Phillips v. Western Union Telegraph Company, 194 Mo. App. 458), in which the liability of the appellant was upheld. While this does not constitute an adjudication of the right in favor of this respondent, it is persuasive, authority as the decision by a distinguished court of the same question, and is the only authority to which counsel has directed our attention bearing upon the question which seems to us to be the controlling one in this case.
Eespondent’s counsel meets these simple rules with the proposition that human legs, while safe and proper instruments of transportation when carefully used, are, like automobiles and other things of a similar nature, dangerous when used negligently, and that the master has as much control over thé legs of his servant as over his own animal or machine; and cites Ryan v. Keane, 211 Mass. 543, as an authority, and the same case is cited and quoted by the St. Louis Court of Appeals in Phillips v. Western Union Telegraph Company, supra. In the Massachusetts case the accident occurred in the stable yard of a livery, in which a customer waiting for a conveyance he had ordered was roughly pushed, run against and injured by the employee who had been serving him, and who was on foot. We do not see the relevancy of this case, in which the employer failed in the duty of protecting his customer from negligent injury by his own servant upon, his own premises to which he had been invited, to the duty of the master to control
The respondent has also cited the decision of this court In Banc in Maniaci v. Interurban Express Co., 266 Mo. 633. In that case the defendant express company had in charge of its office and business at Edwardsville, Illinois, one Joiner, “a person of violent temper, quarrelsome disposition and without control over his passions” and “a dangerous and unfit person to place in such a position,” which it well knew; a dispute had arisen between Joiner and plaintiff over the refusal of plaintiff to sign a receipt for a consignment of fruit previously delivered to him; and Joiner had telephoned him to come to the office; and while he was doing so intercepted Mm, presented the receipt, demanded that he sign it and while he was doing so “under protest” shot him. In holding the express company liable- under the circumstances this court said: “The plaintiff was there upon the invitation of defendant for a legitimate purpose. He and Joiner were in the midst of the vevy business which had called them together, at the time said shooting occurred. In addition thereto, the petition alleges that plaintiff was in the very act of signing the receipt when he was suddenly shot.” It also cited a number of authorities sustaining the principle clearly stated by Judge Cooley, Cooley on Torts (3d Ed.) sec. 626, as follows: “'The master is liable for the acts of Ms servant', not only when they are directed by him, but also when the scope of his employment or trust is such that he has been left at liberty to do; while pursuing or attempting to discharge it, the injurious act complained of. It is not merely for the wrongful acts he was directed to do, but the wrongful acts he was suffered to do, that the master must respond.
There is nothing in any of these authorities which applies the doctrine of respondeat siiperior, or the principles on which it rests, to the facts of this case as already stated, and we are not surprised that the diligent search indicated by the briefs of eminent counsel in this case have failed to disclose one. Had the messenger
We have already referred to the paucity of authority upon the liability of the master for the use by his servant of the public street. The most of us frequently send our servants to the post office or the store, or, if we have no one regularly employed to do these errands, expend a nickel or a dime for a special messenger for such purposes. Traveling salesmen in the employ of com-, mercial houses go from store to store and house to house in the pursuance of their calling. Boys engaged in this’ employment frequently encounter their juvenile enemies and we, who employ them, do not think of worrying over our financial responsibility for the result.
Nor are we prepared to hold that a corporation is, in this resjject, subject to'a more stringent rule of liability than a natural,person,
The judgment of the circuit court for the city of St. Louis is therefore reversed.
— The foregoing opinion of Brown, C., is adopted by the Court In Banc as the opinion of said court.
Dissenting Opinion
(dissenting)-. — I dissent from the majority opinion for the reason that the same rule of law applies to the facts of this case as if the injury had been inflicted by an automobile instead of being caused by the messenger’s body negligently coining in physical contact with the plaintiff. The messenger was performing the master’s business at the time he injured the plaintiff, and had it not been for that fact he would not have been pursuing the journey which resulted in the injury, and the mere fact that he sidestepped a few feet to gratify some personal desire does not change the rule. In that case, as in this, he would have been about the master’s business and the negligence in the one is identical with that in the other; the authorities cited abundantly so hold.