Murphy v. Southwest Missouri Railroad , 168 Mo. App. 588 ( 1913 )

OPINION.

FARRINGTON, J.

(after stating the facts).— The authorities cited by both appellant and respondent agree in holding that an amusement company, railway company, or any person or persons engaged in handling the public at their places of business have a right to employ servants to maintain order and protect their property and eject objectionable characters; this person so employed may or may not be a regularly commissioned officer of the law; and the mere fact that such person is paid by the defendant would not, standing alone, make the defendant responsible. [Brill v. Eddy, 115 Mo. 596, 605, 22 S. W. 488; Sharp v. Erie R. Co., 76 N. E. (N. Y.) 923; Deck v. Baltimore & O. R. Co., 59 Atl. (Md.) 650; Tolchester Beach Improvement Co. v. Steinmeier, 8 L. R. A. (Md.) 846; Foster v. Grand Rapids Ry. Co., 104 N. W. (Mich.) 380; McKain v. Baltimore & O. R. Co., 64 S. E. (W. Va.) 18, 23 L. R. A. (N. S.) 289; Healey v. Lathrop, 50 N. E. (Mass.) 540; Cordner v. Boston & M. R. Co., 57 Atl. (N. H.) 234; Tucker v. Erie Ry. Co., 54 Atl. (N. J.) 557; Pennsylvania R. Co. v. Kelly, 177 Fed. 189.] The authorities further agree that whén an assault occurs, if the person (when an employee as well as an officer) acts within the scope of his employment and under instructions either express or implied, general or special, of his employer, then any wrongful act in his conduct is chargeable to the employer. If his act, on the other hand, does not fall within the scope of his employment and is without direction of his employer, then of course his conduct is not chargeable to his employer. In this case, the plaintiff by his instructions assumes that the evidence shows that Coates was acting under the direction of the railway company and that what he did was within the line of his duty as such employee. The defendant by its instructions assumed the very opposite, namely, that under the state of facts presented Coates was acting without the scope of his authority and as a deputy sheriff, for which the company would not be responsible.

The instructions which were requested by the defendant and refused by the court we think were properly refused because of the failure of the defendant to predicate them on the facts and the law as above indicated. The giving of any one of the instructions requested by the defendant would practically have amounted to a directed verdict as they ignore entirely the material question in the case — whether the act Avas done by Coates while acting within the scope of his authority and under the direction of the defendant. Exactly the same omission was made by the respondent in drawing his instructions as he entirely' ignores the fact that Coates might have been acting as a deputy sheriff, and assumes in his instructions that Coates was acting as defendant’s servant; and there is no doubt that the instructions of the respond-, ent would be erroneous for a failure to permit the jury to pass on the question as "to whether the act was done within the scope of his employment and under the direction of the company but for another consideration. There is no question but that in an instruction which is predicated on the facts with a direction to find for or against a party, all the disputed or controverted issues necessary to a recovery must be recited in the instruction. However, where one of the necessary issues is admitted by the adversary, or where there is no dispute about the facts on a necessary issue, then, while it is better that the finding he put in the instruction, yet the court may assume such fact without committing reversible error. In other words, it would have been better to have instructed the jury that if they found that Coates was an employee of the defendant company, and if they found that what he did came within the scope of his authority and under the direction of the defendant, and that Coates, acting as such employee, attempted to eject plaintiff from said park— etc. However, as all the evidence shows without any contradiction that Coates was an employee of the defendant company, that he had general instructions to eject objectionable characters and intoxicated persons from the park, and that what he did was within the scope of his authority, the trial court could ássume in the instruction such a state of facts without requiring the jury to so find.

From the very language which was used by Coates at the time he took charge of respondent at the bridge it will be clearly seen that he did not then intend to arrest the respondent but merely to escort him off the grounds; besides, there is no evidence in the record of any offense committed by respondent up to that time which, would have justified Coates in placing him under arrest; at least none had been committed in the presence of Coates. It is therefore apparent that Coates started off with the respondent, not having arrested him, not for the purpose of taking him to jail — which was all he could have done as a deputy sheriff — but for the purpose of getting him off the grounds which was within the scope of his authority as defendant’s employee and which was in the line of his duty under his instructions from the railway company.

After a careful examination of this record we are convinced that the verdict and judgment were for the right party; that the jury rendered their verdict in the exercise of a sound discretion, realizing, perhaps, that respondent by going to a public park where there were women and children and becoming intoxicated and obnoxious to all about him brought down the trouble upon his own head, and gave him small compensation, yet made the verdict for a sufficient amount that persons employing special officers would understand that they are required to select men who will not become oppressive and abuse their authority. Finding no reversible error with reference to the instructions given or refused, and believing that tlm judgment was for the right party, it is accordingly affirmed.

All concur.