Opinion
No. 40263.
November 10, 1947. Rehearing Denied, December 8, 1947.
1. TORTS: Master and Servant: Wrongful Shooting by Private Watchman: Outside Scope of Employment. When defendant's private watchman shot plaintiff's husband he was acting outside the scope of his employment.
2. NEGLIGENCE: Master and Servant: Wrongful Shooting by Private Watchman: Vicious Propensities Unknown to Employer. Defendant was not liable for the wrongful shooting of plaintiff's husband by defendant's private watchman, as defendant had no knowledge of the vicious propensities of said watchman.
Appeal from Circuit Court of City of St. Louis. — Hon. William B. Flynn, Judge.
AFFIRMED.
Frank Wolff and James A. Riley for appellant.
(1) The appellant's evidence created a question of fact as to whether the respondent was negligent and the court should not enter a directed verdict where reasonable men might differ as to the facts. Parrent v. Mobile O.R. Co., 70 S.W.2d 1068, 334 Mo. 1202; Barker v. Silverforb, 201 S.W.2d 408. (2) Appellant made a prima facie case and the court invaded the province of the jury in directing a verdict for the respondent. Because it became a question of fact under appellant's evidence as to whether respondent used reasonable care in employing a watchman of vicious propensities and retaining such watchman in his employ. Maniaci v. Interurban Express Co., 182 S.W. 981, 266 Mo. 633; Priest v. F.W. Woolworth Five Ten Cent Store, 62 S.W.2d 926; Oganaso v. Millow, 201 S.W.2d 365; McCrink v. City of New York, 71 N.E.2d 419, 266 N.Y. 99; Van Leet v. Kilmer, 252 N.Y. 454, 169 N.E. 644; Fletcher v. Baltimore Ohio Ry. Co., 168 U.S. 135, 18 S.Ct. 35, 42 L.Ed. 411; Mullich v. Brocker, 97 S.W. 549, 119 Mo. App. 332; Galentine v. Borglum, 150 S.W.2d 1088; Roberts v. Wabash R. Co., 134 S.W. 89, 153 Mo. App. 638; 39 C.J., p. 1357, sec. 1585. (3) Because it became a question of fact as to whether negligence could be imputed to respondent for employing a watchman without a license from the Police Commissioners of the City of St. Louis. Wooldridge v. Scott County Milling Co., 102 S.W.2d 958; Kneezle v. Scott County Milling Co., 113 S.W.2d 817. (4) Because it became a question of fact as to whether the custom of the watchman to leave the railroad property and go into the restaurant where the shooting took place several times during his working hours, armed with a revolver, was with the knowledge and consent of the respondent. Reilly v. Hannibal St. J.R. Co., 7 S.W. 407, 94 Mo. 600; Milburn v. Chicago, M., St. P. P.R. Co., 56 S.W.2d 80. (5) Because it became a question of fact as to whether the death of appellant's husband was the natural and probable result of the respondent's negligence. Phillips v. St. Louis S.F.R. Co., 111 S.W. 109, 211 Mo. 419; Haehl v. Wabash R. Co., 24 S.W. 737, 119 Mo. 325.
Thomas J. Cole, Oliver L. Salter and Ragland, Otto, Potter Embry for respondent.
(1) Whether a servant's act is within the scope of his employment or not is ordinarily a jury question but, if his departure from his employer's business is of a decided character, the question is one for the court. State ex rel. Gosselin v. Trimble, 328 Mo. 760, 41 S.W.2d 801; Chisolm v. Berg, 78 S.W.2d 486. (2) The shooting of Ewell Porter occurred away from respondent's premises where William Robinson was engaged as a watchman and at a place where Mr. Robinson had no duties to perform for respondent and where respondent had no business interests. His act in shooting Mr. Porter could have no tendency to promote any purpose in which respondent was interested but was purely personal to Mr. Robinson. The respondent is not liable therefor. Haehl v. Wabash Ry. Co., 119 Mo. 325; Smothers v. Welch Co. House Furnishing Co., 310 Mo. 144, 274 S.W. 678; Milazzo v. Kansas City Gas Co., 180 S.W.2d 1; Oganaso v. Mellow, 201 S.W.2d 365; Vert v. Metropolitan Life Ins. Co., 117 S.W.2d 252; Rohrmoser v. Household Finance Corp., 231 Mo. App. 1188, 86 S.W.2d 103. (3) Appellant's witness Rogaschnik did not even know whether William Robinson was on duty for respondent at any time during the night of the shooting. But, even if he was, and even if the shooting occurred during the period when he was supposed to be on duty, the motives for the shooting being purely personal to him and wholly unconnected with respondent's business, the respondent is not responsible therefor. Wolf v. Terminal Ry. Assn., 282 Mo. 559, 222 S.W. 114; Smothers v. Welch House Furnishing Co., 310 Mo. 144, 274 S.W. 678. (4) The evidence wholly fails to substantiate appellant's claim that William Robinson was of such vicious propensities as to make respondent negligent in employing him as a watchman. But, even if such were the fact and it had been shown in evidence, since, in shooting Mr. Porter, he was not engaged in the prosecution of respondent's business, the respondent would not be liable because the injury complained of was not on respondent's premises nor to an invitee or other person rightfully on respondent's premises. Smothers v. Welch House Furnishing Co., 310 Mo. 144, 274 S.W. 678; Priest v. Woolworth Five Ten Cent Store, 228 Mo. App. 23, 62 S.W.2d 926. (5) The evidence did not make a case against respondent on the theory of conspiracy. Even if respondent's employment of Mr. Robinson as a watchman, when the latter had no license, constituted a conspiracy between them to violate the law with reference to the licensing of watchmen (which respondent denies), respondent still would not be liable for the shooting because it was not done pursuant to the supposititious conspiracy. It is only when the act complained of is in the carrying out of the object of a conspiracy that a co-conspirator is liable therefor. Wooldridge v. Scott County Milling Co., 102 S.W.2d 958; Remmers v. Remmers, 217 Mo. 541; Pyles v. Armstrong, 275 P. 753; Santoro v. Mack, 145 A. 273. (6) The case of Riley v. Railroad, 94 Mo. 600, cited by appellant is clearly distinguishable. In that case, the engine was owned by the defendant, operated by defendant's servants and on defendant's premises. Calhoun v. Mining Co., 202 Mo. App. 564.
February 6, 1945, William Robinson, a private watchman of respondent, shot and killed plaintiff's husband, Ewell Grant Porter, and plaintiff filed this cause against Robinson and respondent to recover $10,000 for the alleged wrongful death of her husband. At the close of plaintiff's case the trial court, on motion, directed a verdict for respondent and the jury returned a verdict against Robinson for $6,500. Robinson did not appeal, but plaintiff appealed from the judgment of dismissal as to respondent.
At the time Robinson shot plaintiff's husband he (Robinson) was stationed at the Biddle Street (St. Louis) freight house of respondent; his territory was the freight house and the adjacent yards, and his hours were from about 6 P.M. to 6 A.M. The Cantoni restaurant was about 3 blocks from these yards, and Robinson frequently visited this restaurant. The proprietor of the restaurant was Andrew Cantoni. Helen Rogaschnik, a sister of Cantoni's wife, worked in the restaurant. Robinson became infatuated with Miss Rogaschnik; wanted to marry her. Plaintiff's husband was a long distance truck driver and also frequently visited this restaurant; knew Miss Rogaschnik. Robinson became jealous of Porter and about 10 P.M., February 6, 1945, he, without warning, shot Porter 3 times in the back while Porter was seated at the bar in the restaurant. After shooting Porter he turned on Miss Rogaschnik and shot her, but she survived. Robinson was adjudged insane after the shooting and at the time of the trial was in the asylum, and was represented at the trial by a guardian ad litem.
Plaintiff sought to hold respondent liable for her husband's death on the theory that Robinson was a man of vicious propensities, violent temper, quarrelsome; without control of his passions, dangerous, and an unfit person to have such a position as private watchman and go around with a pistol, and that respondent knew, or by the exercise of ordinary care could have known that Robinson was an unfit person for the position of private watchman in time to have removed him from such position before he shot and killed plaintiff's husband.
Plaintiff's evidence showed that Robinson was at the Cantoni restaurant frequently during the hours he was on duty as watchman for respondent; that he was always armed with a pistol carried in a scabbard; that he was somewhat careless with the pistol; frequently placed it on the bar; that on occasions he would walk about in the restaurant looking like he was mad; that he wanted to overtalk to the waitresses, but Miss Rogaschnik was his favorite. He gave her large tips, on one occasion a hundred dollar bill; posed as a "big shot" and on some occasions was rude and threatening to customers and to Mrs. Cantoni. He had been deputy sheriff in Arkansas, and boasted that he had killed two people in Arkansas, and talked about the nicks on his gun to represent these killings, but he had not killed anyone. There were some other incidents pertaining to Robinson, but it is not necessary to further detail.
The police were notified of Robinson's conduct in the restaurant, but respondent was not. Theodore Brownslow, also a special agent of respondent and supervisory officer of Robinson, was in the restaurant on one occasion with Robinson, but on that occasion there was no out of order conduct on the part of Robinson. Three or four months prior to the shooting of plaintiff's husband, Robinson, while on duty and on respondent's premises, and without cause, drew his gun on Ed Malone, a janitor for a car loading company, and threatened to blow his brains out. Malone reported this to his (Malone's) boss and guessed that "he (the boss) reported it to the Missouri Pacific." Also, it was shown that Robinson [511] did not have a private watchman's license from the police commissioners of St. Louis to act as a private watchman and to so act without such license was in violation of a city ordinance. But it appeared that Robinson came from Little Rock, Arkansas, recommended to respondent, and it appeared that in order to be licensed as a private watchman, an applicant, among other qualifications, had to be a resident of St. Louis for three years and a registered voter.
[1, 2] Respondent contends that plaintiff did not make a sufficient showing as to the alleged vicious propensities of Robinson and his employment by respondent to make an issue on the alleged negligence of respondent in employing and retaining him as a watchman and thereby authorizing him to go armed. It is conceded that Robinson was not on respondent's premises when he shot and killed plaintiff's husband, and that he had no duty to respondent to discharge at the Cantoni restaurant. In plaintiff's brief her contention is stated as follows:
"It is appellant's theory that it became a question of fact for the jury as to whether respondent, Guy A. Thompson, trustee for the Missouri Pacific Railroad Company, a corporation, was negligent, when she introduced evidence that William Robinson was in the employ of respondent when he shot and killed her husband; that it was during Robinson's working hours; that he was employed as a private watchman without a license from the board of police commissioners of the City of St. Louis, Missouri; that he was carrying a gun on his person; that he was a man of vicious propensities and later declared insane; that he was in the habit of coming in or passing through the restaurant with a gun on his person, where the shooting took place, almost every hour during the time he was on duty, exhibiting vicious propensities to persons in said restaurant and the employees of same and with actual or constructive notice on the part of respondent."
Assuming without deciding that the evidence tended to show Robinson's propensities were as plaintiff contends, that alone would not make respondent liable. In the excerpt from plaintiff's brief it will be noted that it is stated that respondent had actual or constructive notice of Robinson's conduct in the restaurant, but that statement is not supported by the evidence. Robinson was not on respondent's premises when he shot plaintiff's husband and there is no claim that he was acting within the scope of his employment. In the brief respondent says: "It would be difficult, if not quite impossible, to imagine a more decided departure by a servant, from his employer's business, than was Mr. Robinson's departure from respondent's business when he, Robinson, shot Mr. Porter. It is undisputed in the record that the shooting occurred in a restaurant two or three blocks away from the premises which Mr. Robinson was employed to watch for respondent; that respondent had no business, and consequently Mr. Robinson had no duties to perform for respondent at said restaurant."
Plaintiff says that the trial court erred in directing a verdict for respondent: (1) Because, under the evidence, it became a question of fact as to whether respondent used reasonable care in employing Robinson and thereafter retaining him; (2) because it became a question of fact, under the evidence, as to whether negligence can be imputed to respondent for employing an unlicensed watchman; (3) because it became, under the evidence, a question of fact as to whether the custom of Robinson, while on duty, to leave the railroad property and go to the restaurant armed with a revolver was with the knowledge and consent of respondent; and (4) because, under the evidence, it became a question of fact as to whether the death of plaintiff's husband was the natural and probable result of respondent's negligence. Able counsel cite no authority that would support submission, as to respondent, under the facts here.
"A master is responsible for injury occasioned to a third person by any negligence or misconduct of which his servants are guilty while acting within the scope of their employment." 6 Labatt's Master Servant, Sec. 2224; Rohrmoser v. Household Finance Corp., 231 Mo. App. 1188, 86 S.W.2d 103, l.c. 105; Oganaso v. Mellow et al., 356 Mo. 228, 201 S.W.2d 365. "The general rule is that the maxim, respondeat (superior), applies when the servant, in the line of his employment about his master's business, seeks to accomplish his master's [512] purposes and in doing so acts negligently, or wilfully and maliciously, or even contrary to his orders or criminally, in some instances. That general rule is hornbook doctrine and beyond dispute. The difficulty is in applying it to the circumstances and facts of each particular case; for it would be intolerable to hold the master liable when his servant was pursuing his own ends for his own purposes, and not the master's, and in doing so commits a wrong. The employer of men would be in hard lines if that were the law." Whiteaker v. Chicago, R.I. P.R. Co., 252 Mo. 438, l.c. 458, 160 S.W. 1009, l.c. 1014; Rohrmoser v. Household Finance Corp., supra.
Under the law it is quite clear that plaintiff did not make a submissible case under the rule of respondeat superior. Did she make a submissible case on the theory that respondent was negligent in employing a watchman of vicious propensities and that such negligence was the proximate cause of the death of plaintiff's husband? As above stated, if it be assumed that Robinson was of vicious propensities, that alone would not make respondent liable. The burden was on plaintiff to show that respondent knew or should have known of Robinson's propensities, and there was no substantial evidence tending to so show. In fact, there was no evidence at all to so show. A demurrer to the evidence (motion for a directed verdict) admits the truth of the evidence to which the demurrer is directed, and also admits all inferences of fact which a jury might fairly draw from that evidence; and such demurrer can only be sustained when the facts in evidence and the fair inferences to be drawn from such facts are so strongly against the party at whom the demurrer is directed as to leave no room for reasonable minds to differ. Goslin v. Kurn et al., 351 Mo. 395, 173 S.W.2d 79, l.c. 84, and cases there cited. But in the present case there was no substantial evidence to support submission as to respondent, hence the directed verdict was proper.
No purpose could be served by further discussion. The judgment should be affirmed and it is so ordered. Dalton and Van Osdol, CC., concur.
The foregoing opinion by BRADLEY, C., is adopted as the opinion of the court. All the judges concur.