*1 re- the case be time. Whether two or three seasons about this equity, we think the court’s garded an at law or a suit in action sustained. against on this must be finding defendant issue points urged other render consideration of Our above conclusions judgment All concur. unnecessary, is affirmed. appellant and the Friend, Elizabeth Gosselin, by Next State ex rel. Frederick City Judges Kansas H. Trimble Gosselin, v. Francis et al., 801. (2d) Appeals. Court of One, September 1931. Division *2 Langsdale for relator. Glif
Charles L. Carr Hogsett, Murray Trippe <& Smith, for re- spondents. original proceeding C. This is certiorari
HYDE, an City opinion Kansas quash relator this court asks of- Appeals, in of Frederick Gosselin Yellow Cab the case Company, term, decided at its March 1930. Relator contends that following former'decisions of this conflict 325, court: Haehl v. Wabash Railroad *3 Express 981. Maniaci v. Interurban Co., and ground Respondents a motion to dismiss have filed on the that brief fair statement of the relator’s does include a and concise required brief 15 of this court. While relator’s facts as rule improved by including in the matters referred to could the be be- are, the and motion, because it is sufficient to show what issues stated, motion case, hereafter the cause of our determination of the merits considered. will be overruled and the facts: these Appeals of finds The Court minor, injuries. appellant, The a personal for is a “This suit He Twelfth Street on taxicab. drove eastward of driver a was the passen- intention to two deliver City, Missouri, with the in Kansas standing Defendant’s was Hotel. cab gers at the Muehlebach attempted stop his car plaintiff of the hotel the front and skidded, cab and cab. Plaintiff’s proximity to close the any which not result slight collision did as a result there was .a cab collected alighted injury either Plaintiff from the cab. Daggett, the driver Whereupon, one passengers. from his the fare plaintiff struck him cab, walked over to of defendant’s Daggett injuries. had thereby causing face, blow in the terrific and, far passengers, sitting cab in defendant’s with nothing. testified witnesses Three discloses, evidence just after that at hotel testified The doorman to the assault. be an- Daggett discharged seemed to plaintiff passengers face to face and plaintiff noyed jumped of met out uttering without him you then struck said ‘What do mean?’ oath, with Daggett, an that a word. Another taxicab driver said witness that at This testified mine.’ off of said: ‘Get that car were; they get than closer could not cars time of assault the two the witnesses All of against other.’ ‘jam up each they agreed plaintiff did not have say any- an opportunity to thing Upon argument before he struck. the oral counsel for appellant disclaimed contention that cab on of top one other, but they juxtaposition. indicates were in The doorman testified both cars left scene at about the same time, plaintiff’s but there was no evidence that car first, moved nor was there evidence from which it could inferred that position plaintiff’s penned in the other car so it could not be conveniently nothing moved. After blow was struck by Daggett done touching, the cars from nor to induce plaintiff action, except to take such assault, soon after the Daggett away.” drove
The trial judg court directed verdict for which defendant, ment was entered and the judgment. Court of affirmed this In Appeals quoted its from Haehl v. Wabash Railroad l. c. 339: superior principle respondeat
“The applies only when what is complained of was done in the employment. course principal responsible, is not because the servant has acted employment, name under color of his because the servant actually engaged carrying and about his business and out his purposes. responsible, thing He is then because complained of, although through agency done another, him- was done self; and matters injury it not in such cases whether the sought charge him of negligence, is the result unskillful or agents conduct, fit must choose trans- taking action of his business. care done, But his business is itself, being engaged and his servant not not concerned *4 impelled by personal about him- wholly that are motives to self, feeling simply gratify to whether resentment, own provoked upon or when unprovoked, another, commits an assault ,that has, any have, tendency promote purpose and can no to principal interested, promote which the is and to which the servant wrong personal wrong employed, was then the is purely servant, he, alone, responsible.” for which he
This, said, invariably it the rule which fol- “announces has lowed in this State.” T-he court then said: finding justify any jury
“If a there would evidence attempt plaintiff that made on was incident to an the assault business, then to his master’s defendant’s driver do jury. we no must hold was for There was evidence that authority given concerning any by defendant to introduced direct driver; implied authority its to defendant’s but it was within his drive eject damage, protect possession from to taxicab, the car in his any trespassers. whether there was We must therefore determine bus- prosecution of such to that was about the evidence indicate mess, rightful either a or manner. There was no evi- that making prep- dence attempting .defendant’s was or driver arations to drive slight defendant's taxicab. collision which The any damage already did not result in was occurred, and there attempting no evidence to indicate that defendant’s driver was damage prevent repair or ear. No attempting one was procure passage payment fare; without and there was no evidence indicating coercing purpose that the blow struck for the plaintiff moving simultaneously into his ear. It struck with refuse command, not exhibited inclination to bréale down an evidently anger. compliance, but a mere reaction to There as sudden attempting is no evidence whatever the defendant’s driver was any duty owing to, by, perform power conferred exercise his master. by Daggett accompanied
“The words were uttered were not touching, by single keep act was calculated to the ears from they There preceded nor act. is noth- or followed ing separation in the to indicate that such a would evidence damage, operation, facilitated its saved defendant’s car payment touching prevented passage fare. The without expected trespass to in the harmless technical be cars Daggett’s scope em- business, if it within the damage it trespass to abate such a even when threatened ployment decide), (which or interference defendant’s business we do not nothing possi- yet more shows than a mere evidence a whole making bility purpose in the assault.’’ such was his distinguished thus, Haehl v. Wabash Railroad court, authority opinion: supra, which was the sole cited its company Supreme that the railroad “In that case the Court held committed a watchman whose liable for an assault bridge. trespassers The watch- off of defendant’s it was to duty, of such shot a tres- engaged performance in the man, while engaged performance in the Hill was passer. The court said that done; duties; business was not that the of the master’s was en- taking servant itself, but that the defendant’s care of as the dis- it, and that so far gaged in it and concerned about engaged any other business.” closed, he was not court consider both relator and seen that will It therefore authority controlling Co., supra, as the Railroad v. Wabash Haehl question of whether that the case. Relator contends of this decisive merely *5 business or master’s engaged yellow cab driver jury. resentment, was for His feeling of gratifying his own within Appeals found argument is that the Court possession in his “protect authority implied Daggett’s allowing relator, eject'trespassers;” damage “teehni cab, yellow committed against remain car to touch and 765 mine,” trespass;” command, cal car off of that the “Get that purpose making was evidence on relator was assault trespass. abate the agree "We that Haehl v. Co., supra, Wabash Railroad states the case, rule decisive this and we do not find other authorities upon which the principles state which this case must be decided n more clearly concisely quoted than of the Haehl case.
The Haehl only leading case “has one of the become cases State . . . been frequently approval but has cited opinions text-books and of other States.” Interurban [Maniaci Express Co., 266 l. partic Mo. c. We should be therefore ularly careful departure not to sanction a from such a estab well authority. [However, lished see further discussion of the rule 39 1306, 1506-1510; 807, 263-265; C. J. L. 254-256, secs. 18 R. C. secs. Co., 1009;
Whiteaker v. C. &P. 252 438, R. I. Mo. 160 W. Railroad S. Phillips 711; 270 Co., 676, v. Western Union Tel. Mo. 114; Assn., 559,
Wolf v. Terminal W. Railroad S.
Smothers v. Welch & 272 S. R. 678,W. A. L.
1209, see note.] injured
In Maniaci plaintiff, Express who was Company’s agent, present company’s at the invitation transacting the company business between himself and the which ’company’s court, was invited to come to the office. The in that case, said: grounds
“Upon public policy, reason, if for prin- no other cipal permitted should not be to withdraw from the business and agents regard turn the same over to public who for the welfare, thereby escape responsibility which he would have bear, attending if person. imposing to the business in It is not too hardship great corporations require either or individuals to respond damages legitimate patrons, them to for unprovoked, very upon them, wanton and malicious assaults inflicted in the while settling agent act of their with the controversies the carrier.” duty There vast corporation, is a difference in the relation and of a engaged serving" who, request public, to an invitee at the company, has come to it to transact the business which the 'company desires transact with him and the relation and corporation trespasser stranger. of such to a The Maniaci case court, Banc, was a four-to-three decision of this en in which two majority only result, in the concurred and in there very vigorous dissenting opinion. was a Because of the different parties, Appeals, of the Court in the relation of the bar, said to in conflict with the Maniaci case at cannot be case. recognizes case, the rule of the Haehl The Court of therefore, conflict, any, case; opin- between its law of this correctly consist of its apply failure to ion and the Haehl case must *6 ma- there was a to the facts it found. It evident that that rule defendant’s purpose in duties for which terial difference the and the and the employed, Ilaehl case and the duties watchman the in this case. purpose employed which for defendant’s driver trespassers employed keep In Haehl watchman “to the case the duty bridge; necessarily put- the off involved of defendant’s this ting duty watchman, they got off of the them after on.’’ Part of the necessary, off therefore, violence, if to or was to use or force to'get attempted got bridge trespassers who on or put off of the his disclosed, this was fact, In so far as of that on. the facts get duty. course, keep trespassers he off or principal Of could so, force, expected to do and them without the use of he off right expected to, more or to, had no use force he was not If he necessary accomplish purpose. did violence than this to injured by one so, company employing him was liable to him wrongful violence, because such duties invested of force or use as to how authority for defendant to decision make company, any particular case. The necessary in much force was judgment, delegated authority him, on that having such to made was re- question, says, the defendant judgment. court its As the through although sponsible thing complained of, done “because the by himself; it matters not agency another, was done sought charge him it is to injury with which cases whether the conduct, negligence, unskillful or result of In his business.” agents transaction of must fit he choose put to of his duties watchman, in exercise case, Haehl trespasser and bridge, stopped the trespassers off of defendant’s run causing him to turn and thus club. After struck him with a him pursued bridge, the watchman the other side toward engaged bridge. lie was got him and shot before he off bridge) when (to put trespassers off of performance duty of his to carrying out his idea as trespasser the course of he shot Therefore, performed. off, him should duty, putting how his liable. properly held the defendant which purpose for principal case, the present In the Daggett was to drive one employed Company Yellow Cab implied also- this found The Court its taxicabs. damage eject to tres- authority protect the car force his duties to use may passers. While it damage attempting ride trespassers eject or violence to attempting to here, one was since no material is not behind and cab slid happened was that relator’s so. What had do cab, damage touching did of defendant’s the back stopped, There was no being driven forward. it from it or hinder damage any future condition threatened this car. If anything there was to be done about it was either to drive his ear Assuming forward have relator’s car backed. Daggett’s duty remedy condition, by causing
it was one or done; authority the other to be that he had decide is there do: evidence to what Daggett, did, show *7 acting was away to have relator’s from ear backed car? “get The words that car off of are mine” the basis of re- acting thereby lator’s Daggett trespass claim that was abate and prevent injury charge. to the taxicab in his Relator claims “it was duty Daggett in this ease of other taxicabs driving. necessarily off the duty taxicab he was This involved the getting they got of them off on.” While, then, after it is even duty doubtful if such or violence would authorize the use force against cars, the driver of that his assuming but it was fight by against cars, drivers, if, off other their in- using force waiting stead touched, Daggett ears until the had advanced sliding pavement relator his on while the wet toward the was yellow him, cab, “Keep mine,” struck and car off saying, that doing there would been was more reason to contend that he Likewise, his carrying master’s purposes. business and out his Daggett had, touching, after cars relator to back the were ordered him, car, and, upon so, his then hit had it could his refusal to do separation doing cause purpose be said that his so was to having if, might So, also, of the cars. this be true after attempted comply, by Daggett, ordered to relator had do Daggett thought quickly not as so in manner or he should.
However, Daggett actually nothing what did was to do at all after impact passengers until relator had let his out of his car and Thereupon jumped collected their fare. he out of his walked relator, away cars, saying, over to you and “What do “get ear off mine” adding mean?” and words, and more violent not full, Daggett which the court did struck set out him. then, showing having moved, without interest relator’s ear got away. Daggett into his ear and Now if acting drove on trespass, employer by getting behalf his to abate a two ears why separated, did he sit in his car until pas- still after relator’s sengers discharged paid-their fare? It had would seem that, necessary all, necessary if it was to move relator’s car at- it was they together. only to do so as soon as came reasonable con- Daggett fanning anger clusion over the occurrence ways devising preventing white rather than means heat ear, imaginary damage which he to defendant’s could have made moving a few Certainly, sure would not occur feet forward. - employment scope pun- it was within of his to administer damaged employer’s property. persons"who even ishment 768 Ry. 644; Cleveland (Mass.), Brown v. Boston Co. 59 N. E. Ice [See 92 Valley Clay Huntington 752; (La.), (Ohio),
Co. v. 164 N. E. v. 926; Grattan 308; (Ky.), & Dawson So. Smith Sons v. Snedmeyer, It W. is true App. S. themselves, without words, mine,” “Get car off of taken evi regard (which all relator’s rest of possi says, least a dence), might at show, as the tres abate making assault was to bility purpose in acting determining whether or not he pass. However, considered Daggett employment, said must of his what course spoke under with what circumstances he did and the acted. surrounding view
“Each case must with a to the be determined employment facts and circumstances—the character of not such act nature of act. Whether the was or ordinarily employment’s scope as to be within one of fact departure employer’s jury’s from the determination. But if the *8 character the business is a marked and decided decision may ser- question province of the ‘Where a be within the court. not steps act vant business and does an aside the master’s another, mani- business, to with the hurtful connected having the reason that festly act, the master is not liable did and servant employer’s business, relation of master left 795, R. L. sec. wrongful act;’ to . . .” C. not exist as [18 254.] Assn., 563, 282 Ry. v. l. c. this court said:
In Wolf Terminal Mo. servant’s during “The act the time fact was done employment conclusive, servant so. motive of the not nor is the question employment and is, virtue of the ivas the act done 199 Railroad, in v. furtherance of business? the master’s [Hinkle general being ‘Whose done and whose business 227.] being Express 182 W. purposes Co., v. S. promoted?’ [Maniaci employment, acting about of his Was the servant in line 981.] purpose?” seeking accomplish business his master’s master’s unloading freight car on defend- case, plaintiff, in a In the Wolf gondola a car. Defendant’s premises, placed two crates ant’s on plaintiff car, re- desired, this assisted move switchmen, who plaintiff. moving injured The court held so the crates acting liable, switchmen were not because the defendant temporarily stepped business, but of their master’s had furtherance plaintiff. The court said that to accommodate therefrom aside obligation wait until the crates were were under switchmen removed, it, leaving crates on with the but could have moved they had plaintiff, right on until put to wait them who had no stepped that had switchmen do not believe We the car. moved plaintiff thrashing give because business to from the master’s aside 769 politely him re- helping on instead of crates were acting move switchmen were them, the court would held though admin- employment, even while scope within the of their your off istering said, “Get crates punishment one of them that ear.” Considering Daggett’s together actions, words and sur- rounding circumstance, showing whose business he was trans- acting, considering the different of the employment, nature we hold the Court of is not conflict with Heahl holding that defendants’ demurrer to relator’s evidence properly sustained because shown the assault was not to be incident any attempt upon his master’s business, to do anger slight a mere reaction to sudden after the collision had oc- curred and was all over. n complains Ap Relator further of the Court of peals holding of court in such cases as also conflicts with Co., 919, 789, 298 S. Goucan v. Atlas 317 Mo. W. Portland Cement every fact be made in favor of a favorable inference of must plaintiff ruling But “where the on demurrer to his evidence. conclusion, the of but one is free from conflict and admits Cyc. jury.” court ease from the should withdraw the 1534.] [38 view however, said: there was but one “If, And as this court has view conduct, men of his and that to be entertained reasonable him, question matter of law.” itself into a adverse to resolves 567, Co., 550, l. B. R. R. c. K. C. J. & C. v. St. [Mockowik Ry. 132, Co., 130 Mo. Metropolitan Street 256; 94 S. W. Hite v. conjecture. speculation on W. Verdicts be based S. cannot 767; 123, Ry. 318 Mo. F. L. & S. St. [Hamilton 690; 246, 281 W. 313 Mo. S. Ry. Bland, Co. v. ex Wabash State rel. Cox, Co. v. Utilities rel. Missouri Public State ex *9 Ry. Co., Wabash 551; Rollison v. giving Appeals, after City Kansas think We which could be inference every reasonable the benefit of relator this court the decisions facts, did not from the contravene drawn only the con- considered, admits evidence, finding that the reached. court clusion writ he our conflict, ordered that therefore, no Finding, CC., concur. Sturgis, quashed. Ferguson and adopted Hyde, C., .foregoing
PER CURIAM: The All judges concur. opinion of the court. as the