93 F. 936 | 5th Cir. | 1899
This is an action originally brought by John J. Pial ten, Jr., defendant in error, against the Southern Express Company, a corporation under the laws of the state of Georgia, plaintiff in error, to recover damages for personal injury inflicted upon him by reason of an assault with deadly weapons committed by certain employés of the defendant company. The suit was originally brought in the circuit court, Pope county, Fla.,, but was afterwards removed by the defendant company into the circuit court of the United States for the Southern district of Florida. The facts alleged by the plaintiff in his declaration, and proved on trial, except as hereinafter qualified, are as follows: That on or about the 1st.day of April, 1897, the office of the defendant company situated in the town of Bartow, Fla., was robbed of the sum of $2,500, and that shortly thereafter the defendant
The three questions raised by the demurrer are: (1) Does the declaration show, by relation of fact, any connection between the defendant company and the assault complained of? (2) Were the employés of the defendant corporation, in committing the assault, acting within the scope of their employment? (3) Is it necessary that in such an action against a corporation the names of the parties who actually committed the assault be given?
To the first question it is alleged by the declaration that the defendant company selected, and sent to the vicinage of the robbery, its special agents and representatives, W. T. Sherrett and O. L. Myers; that these1 agents were specially instructed to investigate the alleged robbery, and that the said agents, in pursuance of their employment, and in the investigation of the alleged robbery, acting within the scope of their employment, committed the trespass, to recover compensation for which this action was brought. The assault upon the defendant in error by these agents of- the express company was committed to further the investigation of the robbery, and the wrong to defendant in error was committed by the agents of the defendant company, therefore, in carrying out the purposes of their émployment. It is true that if the assault alleged had been committed willfully by the agents of the corporation, and in the performance
Whether or not there was a subsequent ratification of the acts of these agents by the chief officers of the company is immaterial, for the reason that Immediately upon the perpetration thereof the liabil
Should the demurrer to the declaration have been sustained for the reason that the names of the persons committing the assault were not named therein? There is nothing in this contention, for the reason that the names of these persons are set forth. In the declaration the names of these persons are given as follows: “Four persons, to wit, C. L. Myers, N. W. Buxton, and two others to plaintiff unknown,” employés of the company, committed the acts complained of. But even if no names were set forth in the said declaration, and it was alleged simply therein that certain agents and representatives of the defendant company, to the plaintiff unknown, had been guilty of this trespass, then the contention of plaintiff in error could not be sustained, for the .reason that this deficiency would be only in a matter of proof, and not of allegation in the pleadings. It follows that there was no error made by the trial court in overruling the plaintiff in error’s demurrer.
It is contended by the plaintiff in error (the defendant below) that the trial, court erred in permitting the plaintiff below to testify as to the mental suffering occasioned him by reason of the assault. Bearing-in mind that this action was one purely of tort, and that there was proof of substantial physical hurt and injury, there can be no question but what the plaintiff below was entitled to recover compensation for the mental pain and suffering that inevitably and necessarily resulted from the original injury. As was said by Mr. Justice Gray in Kennon v. Gilmer, 131 U. S. 28, 9 Sup. Ct. 697:
1 “When the injury, whether caused by willfulness or by negligence, produces mental as well as bodily anguish and suffering, independently of any extraneous consideration oA cause, it is impossible to exclude the mental suffering in estimating the extent of the personal injury for which compensation is to be awarded.”
And in the case of McIntyre v. Giblin, 131 U. S. clxxiv., 9 Sup. Ct. 698, in an action brought by the defendant in error against the plaintiff in error to recover damages for negligent shooting, Chief Justice Waite expressly held that the plaintiff below was entitled to recover “a fair compensation for the physical and mental suffering caused by the injury.”
In the declaration it was charged that Myers and Buxton, and two others to the plaintiff unknown, were procured to make the assault set forth therein. There is no testimony whatever in the record that in any wise connects Myers with the assault, directly or indirectly. Upon the conclusion of the testimony on behalf of the plaintiff below at the trial, the-attorney for the plaintiff in error moved the court to instruct the jury to bring in a verdict for the defendant on the ground that the evidence disclosed a fatal variance between the allegations of the declaration and the proof in this respect, which motion was denied by the court; and the ruling of the court on this motion was assigned as error. There is no allegation, or even intimation, that the plaintiff in error had been misled in maintaining its defense upon the merits by this variance. There is nothing in the record, or on the face of the pleadings, in any wise showing that the express company was prejudiced thereby in any respect. This being tbe case, such variance was an immaterial one, and the court was correct in overruling the motion, and allowing defendant in error at that time to amend his declaration by striking out the name of Myers. It is only in case of a very gross or flagrant abuse of tbe discretion of the trial judge in allowing amendments to tbe pleadings that the same will be interfered with in the appellate court. A careful examination of the entire record discloses no substantial error against the appellant, and the judgment appealed from is therefore affirmed.
TAIiDEE, Circuit Judge, dissenting.