author: RAILEY, C. WOODSON, C. J.

text:
    FRANK MANIACI, Appellant, v. INTERURBAN EXPRESS COMPANY.
    In Banc,
    February 9, 1916.
    CORPORATION: Liability for Malicious Assault by Agent Upon Patron. A corporation, an express company and a common carrier, which had delivered a consignment of fruit to plaintiff, who, after refusing on account of a shortage in the shipment to sign a receipt therefor until the company’s agent would present his claim for an allowance for the shortage, returned at the agent’s request, given by telephone, to defendant’s office for the purpose of discussing a settlement of the matter, and when near the office was met by said agent, who demanded that plaintiff then and there sign said receipt, and when plaintiff under protest was in the act of signing it, suddenly drew a pistol and without warning shot plaintiff, is liable in civil damages, both actual and punitive, to plaintiff for the injuries resulting from said assault; and a second count in the petition in which Knowledge by defendant of the agent’s violent temper, quarrelsome disposition and unfitness for his position, in addition to such other facts, is charged, also states a cause of action.

      Held, by WOODSON, C. J., dissenting, with whom BLAIR, X, concurs, that the agent’s act was a crime, personal to himself, in no way within the scope of his agency, and could not be authorized by the company, because unlawful, and being wholly unauthorized and unauthorizable, the com-, pany is not liable in civil damages for the injuries to plaintiff caused by his murderous assault.
    Appeal from St. Louis City Circuit Court. — Eon. Daniel D. Fisher, Judge.
    Reversed and remanded (with directions).

      George E. Moore and Frank A. Thompson for appellant.
    (1) Tlie master is liable even for the wanton and malicious acts of the servant if done in the scope of his employment. 2 Mechem on Agency (2 Ed.), 1522; Richberger v. Express Co., 73 Miss. 161, 31 L. R. A. 390- 6 LaBatt’s Master & Servant (2 Ed.), sec. 2239'a; Chicago Ry. Co. v. McMahon, 103 111. 485; Haehl v. Railroad, 119 Mo. 325; Bouillon v. Gas Light Co., 148 Mo. App. 462; Express Co. v. Sobel, 125 S. W. (Tex.) 925; Railroad v. Hack, 66 111. 238; Amusement Co. v. Martin, 62 So. (Ala.) 404; Bergman v. Hendrickson, 106 Wis. 434; Fishing Club v. Stewart, 9 L. R. A. (N. S.) 475. (2) It is an act of negligence upon the part of the principal to employ as an agent and place in charge of his premises or business one whom he knows or by the exercise of reasonable care should know to be a person of violent passions and ungovernable temper and a dangerous man. Dean v. Depot Co., 41 Minn. 360, 5 L. R. A. 442 ; 6 LaBatt’s Master & Servant, 6676; Wanstall v. Pooley, 6 Cl. &. F. (Q. B.) 910; Christian v. Railroad, 79 Ga. 460; Railroad v. Hackett, 58 Ark. 381, 41 Am. St. 105; Carson v. Canning, 180 Mass. 461; Railroad v. Day, 34 L. R. A. Ill; Richberger v. Am. Ex. Co., 73 Miss. 161, 31 L. R. A. 490; Express Co. v. Sobel, 125 S. W. (Tex.) 925. (3) Public service companies who invite the public to become their patrons owe a duty to such members of the public as accept their invitation to protect them from misconduct on the part of the servants and employees of said companies. The tendency of the most recent decisions is to hold the master to a stricter rule of liability rather upon the ground of a special duty toward the injured party being violated than upon the principle of respondeat superior. 6 Labatt’s .Master & Servant (2 Ed.), 6878; Dickson v. Waldron, 24 L. R. A. 483; 1 Jaggard on Torts, 263; Mallach v. Ridley, 9 N. T. Supp. 922; Amusement Co. v. Martin, 62 So. 404; Swinarton v. Le B'outillier, 7 Misc. N. T. 639, 148 N. T. 752; Express Co. v. Sobel, 125 S. W. 925; Richberger v. Express Co., 73 Miss. 161, 31 L. R. A. 390; Dean v. Depot Co., 41 Minn. 360, 5 L. R. A. 442.

      H. R. Small for respondent; Fred Tecklenberg of counsel.
    (1) While a demurrer admits as true all material facts which are well pleaded in the petition, it does not admit conclusions of law. Pattison’s Code Pleading (2 Ed.), secs. 925, 926. (2) The allegation of the amended petition that the servant was, in shooting plaintiff, acting “within the scope of his employment” .is an allegation of a.legal conclusion. Snyder v. Railroad, 60 Mo. 413; Pattison’s Code Pleadings (2 Ed.), sec. 435; Johannson v. Fuel Co., 72 Minn. 409. (3$ The master, while now held liable civilly to third persons for the servant’s intentional wrongs committed “within the scope of the servant’s employment” is not liable for the servant’s intentional wrongs committed outside the scope of the servant’s employment. 6 Labatt, Master and Servant, sec. 2244; Whiteaker v. Railroad, 252 Mo. 438. (4) An assault on a debtor by a servant employed to collect debts is outside the scope of his employment. Collette v. Rebori, 107 Mo. App. 711; Milton v. Railroad, 193 Mo. 58. (5) Shooting is ordinarily outside the scope of a servant’s employment and is only in exceptional cases within it. Mechem on Agency (2 Ed., 1914), sec. 1979; 26 Cyc. 1541. (6) The petition does not state a cause of action because (while it states facts that would make the servant liable) it states no facts which justify holding defendant as master liable for the shooting. On the contrary, the shooting under the facts alleged is shown plainly to 'be outside the scope of any employment or employment duty stated in the petition. The only duties at all inferable even from- the petition are those incident to the employment of one in charge of an office and the duty to secure a receipt for goods previously delivered by defendant to plaintiff. It was not within the scope of such employment or employment duties to suddenly, without warning, without just cause or provocation, wilfully, wantonly, maliciously and unlawfully shoot plaintiff twice. Snyder v. Railroad, 60 Mo. 413; "Whiteaker v. Railroad, 252 Mo. 457; Collett v. Rebori, 107 Mo. App. 711; Bowen v. Railroad, 136 Fed. 306, 70 L. R. A. 915; Milton v. Railroad, 193 Mo. 58. (7) The wrong perpetrated must be shown to pertain to the particular duty of the servant to make the master liable. Farber v. Railroad, 116 Mo. 94. (8) The act of shooting under the allegations of the petition cannot “fairly be regarded as a natural incident to, a direct outgrowth of, a natural ingredient in the execution of the service which the master confided to the servant” in the case at bar. Mechem on Agency (2 Ed.), sec. 1962. (9) From appellant’s second point it appears that by the second count and by the additional matter contained in the second count appellant now asserts he charged defendant with negligence in employing the agent and keeping him in charge of its office. If this be true, asserting negligence and intentional wrong in the second count renders it a felo de se. If the act was careless or negligent, it was not wilful, and vice versa. Raming v. Metropolitan Street Railway Co., 157 Mo. 507. But it appears plaintiff did not charge defendant with negligence, but simply alleged knowledge of the servant’s propensities in Order to aggravate, increase and to justify punitive damages on account of the wilful wrong of the servant. (10') Missouri law and the weight of authority is against the contention made in appellant’s third point. 6 LaBatt, Master and Servant, sec. 2244; Mechem on Agency (2 Ed.), secs. 1963-1969; Collette v. Re'bori, 107 Mo. App. 711; Bowen v. Railroad, 136 Fed. 306. '
   RAILEY, C.

This action was commenced in the circuit court of the city of St. Louis on March 16, 1912; and afterwards on the 18th day of October, 1912, and during the October term of said court, an amended petition in two counts was filed in said cause, -which,

without caption and signatures, reads as follows:

“Plaintiff states that defendant is and was at all times hereinafter mentioned a corporation duly incorporated under the laws of the State of Illinois and doing business in the State of Missouri; that on and about the first day of February, 1911, defendant was engaged in and carrying on an express business as a common carrier of freight; that defendant had and maintained an office in the city of Edwardsville, Illinois; that said office was in charge of one Plarry Joiner, who was the agent and servant of defendant; that defendant was at said time a merchant in said city of Edwardsville ; that several days previous to the said first day of February, 1911, defendant in its capacity as a common carrier delivered to plaintiff a consignment of fruit, and that plaintiff refused to sign a receipt for same until the said Harry Joiner, the agent and servant of defendant, had agreed to present plaintiff’s claim for an allowance for a shortage in the consignment; that upon the said first day of February, 1911, the said Harry Joiner, defendant’s agent and servant, telephoned to plaintiff to come to the office of defendant for the purpose of discussing a settlement of the matter; and in response to said message plaintiff started to defendant’s office as requested by defendant’s servant; that near the office plaintiff met defendant’s servant, the said Joiner, who demanded that plaintiff then and there sign a receipt for the said consignment of fruit; that plaintiff under protest started to comply with said demand- and was in the very act of signing the receipt when the said Harry Joiner, being at the time the employee, agent and servant of' the defendant company and acting within the scope of his employment as such agent and servant, did suddenly and without warning draw a pistol and without just cause or provocation wantonly, maliciously and unlawfully shoot plaintiff twice, wounding him in the breast and shoulder.
“Plaintiff states that as a direct result of said injuries and assaults he suffered great bodily and mental pain and was confined to a hospital by reason thereof for a long period of time, to-wit, for the period of about one month, and thereafter was confined at his home to his bed and room for the period of about one month; that by reason of said injuries he was disabled and prevented from attending to his business and affairs for the space of about seven months; that he has suffered and will continue to suffer great bodily pain, annoyance, inconvenience and expense; that as a direct result of said injuries and assault he was compelled to procure and did procure necessary medical attention and treatment, which were then necessary, and still are, and will continue to be necessary for an indefinite period, and that on account of said services alone he has been put to .the expense of about the sum of three hundred dollars.
“Plaintiff states that by virtue of the premises, he has been injured and damaged in body, mind, health, pain and suffering and loss of time and necessary expenses in the sum of ten thousand dollars actual damages and ten thousand dollars punitive damages, for both of which amounts, together' with the costs in this behalf expended, plaintiff prays judgment.
“2.
“For a second cause of action, plaintiff states that defendant is and was at all times hereinafter mentioned a corporation duly incorporated under the laws of the State of Illinois and doing business in the State of Missouri; that defendant on or about the first day of February, 1911, was engaged in the express business and was acting as a common carrier of freight; that for the purposes of its business it maintained an office in the city of Edwardsville, Illinois; that defendant had as an agent and servant in charge and control of said office one Harry Joiner; that said Harry Joiner was a person of violent temper, quarrelsome disposition and without control over Ms passions ; that said Harry Joiner was a dangerous and unfit person to place in such a position; that said Joiner’s dangerous and unfit character and disposition were well known to defendant; that on and previous to said first day of February, 1911, plaintiff was engaged in business in the city of Edwardsville, Illinois; that a dispute having arisen between plaintiff and defendant’s servant and said Joiner, because plaintiff refused to sign a receipt of a consignment of fruit delivered to Mm by the defendant, that said Harry Joiner upon February first, 1911, telephoned to plaintiff to come to the office of defendant in the city of Edwards-ville; plaintiff, in response to said request, started to said office and when near there was intercepted by said Joiner, who demhnded that plaintiff immediately sign a receipt for the said consignment of fruit; that plaintiff, under protest, started to sign said receipt, and wMle he was so engaged, the said Joiner, the agent and servant of said defendant, acting within the scope of his employment as such agent and servant, did suddenly and without warning give way to a fit of passion and draw a pistol and without just cause or provocation wantonly, wilfully, maliciously and unlawfully shoot plaintiff twice, wounding Mm in and about the left breast and left shoulder.
“Plaintiff states that as a direct result of said injuries and assault he suffered great bodily and mental pain and was confined to a hospital by reason thereof for a long period of time, to-wit, for the period of about one month, and thereafter was .confined at Ms home to Ms bed and room for the period of about one month.; that by reason of said injuries he was disabled and prevented from, attending to his business and affairs for the space of about seven months; that he suffered and will continue to suffer great bodily pain, annoyance, inconvenience and expense; that as a direct result of said injuries and assault he was compelled to procure and did procure necessary medical attention and service and treatment, which were then necessary and still are and will continue to be necessary for an indefinite period, and that on account of said services alone he has been put to the expense of about the sum of three hundred dollars.
‘ ‘ Plaintiff states that by virtue of the premises he has been injured and damaged in body, mind, health, pain and suffering and loss of time and necessary expenses in the sum of ten thousand dollars actual damages and ten thousand dollars punitive damages, for both of which' amounts, together with the costs in this behalf expended, plaintiff prays judgment.”

On October 21, 1912, respondent filed a demurrer to each count of said amended petition, which said demurrer without caption and signature, reads as follows :

“1. Now comes defendant and demurs to the first, count of the plaintiff’s amended petition on the ground that said count of said amended petition does not state facts sufficient to constitute a cause of action.
“2. And defendant comes and demurs to the second count of plaintiff’s amended petition on the ground that said count of the said amended petition does not state facts sufficient to constitute a cause of action.”

At the December term, 1912, and on January 3, 1913, of said term, demurrer aforesaid was sustained. On. January 31, 1913, .during said term, plaintiff declined to plead further and final judgment was rendered on said date, and the cause was duly appealed to this court.

Does, the first count of the amended petition contain facts, sufficient at law, to constitute a cause of action against defendant?

Turning to the amended petition, and analyzing same, we find that in substance it alleges the following facts: (1) That defendant is a corporation, organized under the laws of' Illinois, and doing business in the State of Missouri; (2) that on or about February 1, 1911, defendant was engaged in the express business as a common carrier of freight; (3) that it had and maintained an office in the city of Edwardsville, Illinois; (4) that said office was in.charge of one Harry Joiner, who was at the time agent and serva/nt of defendant; (5) that defendant was at said time a merchant in said city of Edwardsville; (6) that several days prior to February 1, 1911, defendant in its capacity as a common carrier, delivered to plaintiff a consignment of fruit, and the latter refused to sign a receipt therefor, until said Harry Joiner the agent and servant of defendant aforesaid, had agreed to present plaintiff’s claim for a shortage allowance in the consignment; (7) that upon said first day of February, 1911, said Harry Joiner, defendant’s agent and servant, telephoned plaintiff to come to the office of defendant for the purpose of discussing a settle-• ment óf the matter; (8) that in response to said message plaintiff'started to defendant’s office as requested by defendant’s servant; (9) that near the office plaintiff met defendant’s servant, the said Joiner, who demanded that plaintiff then and there sign a receipt for the said consignment of fruit; (101) that plaintiff under protest started to comply with said demand and was in the very act of signing the receipt, when said Harry Joiner, being at the time an employee, agent and servant of defendant, and acting within the scope of his employment as sudh agent and servant, did suddenly and without warning draw a pistol, and without just cause or provocation, wantonly, maliciously and unlawfully shoot plaintiff twice, wounding him in the 'breast and shoulder, etc.

A demurrer to each count of said petition was sustained by the trial court, upon the theory, that neither count states facts sufficient to constitute a cause of action.

Defendant strenuously insists that the words, “within the scope of his employment,” is an allegation of a legal conclusion. The above language taken alone, without any reference to that which precedes or follows it, would state simply a legal conclusion, and the truth of same would not be admitted by a demurrer thereto. [State ex rel. v. Railroad, 240 Mo. 35, l. c. 49-50; Gibson v. Railroad, 225 Mo. 473, 482; Shohoney v. Railroad, 223 Mo. 649, 671; Mallinckrodt Chemical Works v. Nemnich, 169 Mo. l. c. 397; Sidway v. Land & L. S. Co., 163 Mo. l. c. 374-5; Clark v. Dillon, 97 N. Y. 370; Snyder v. Railroad, 60 Mo. l. c. 419; Southern Ry. Co. v. King, 217 U. S. l. c. 536-7; General Electric Co. v. El. & Mfg. Co., 144 Fed. 458; Railroad v. Lightheiser, 163 Ind. 247; Fremont, E. & M. V. R. Co. v. Hagblad, 72 Neb. 773; Kennedy v. Street Ry. Co., 72 N. J. L. 19 ; Bullock v. Butler Exchange Co., 22 R. 1.105’.] Numerous other cases can be found in practically every State of our Union announcing the same principle, but we have been unable to locale any case, ivhich would warrant the court, in passing upon the above question, to ignore the tvell pleaded facts upon whicM the conclusion of law was based. In other words, if the facts stated, aside from the language above quoted, are sufficient to stamp the acts and conduct of Joiner, at the time and place of shooting1, as being within the scope of his employment, then the petition states a good cause of action, even if'the language “within the, scope of his employment” be eliminated therefrom. Cases of this character present a mixed question of law and fact. It is a common, but an appropriate form of pleading, in eases like the one at bar, to set out the the facts constituting the cause of action, and follow the same with the allegation that the agent at' the time of the assault was acting within the scope of his employment. The demurrer goes to the count as a whole, and should not be determined upon isolated and disconnected portions of the petition.

As said in Snyder v. Railroad, 60 Mo. l. c. 419, cited and relied upon by defendant: ‘ ‘ The facts being conceded, whether a given act is within the scope of a servant’s employment is a question of law for the court.”

It appears from the petition that defendant was a .corporation, a merchant, and likewise engaged in carrying on an express business, in the town aforesaid, as a common carrier of freight. It is also averred that defendant maintained an office in Edwardsville, Illinois, and that said Harry Joiner was the agent and servant of defendant, in charge of said office.

It appears from the petition that defendant as a common carrier, had delivered to plaintiff a consignment of fruit, and on account of the shortage of same plaintiff declined to receipt for said fruit unless Joiner, the agent, would present plaintiff’s claim for an allowance on account of said shortage. While matters were in this shape, the agent, Joiner, called up plaintiff by telephone, and requested him to come to defendant’s office for the purpose of discussing a settlement of the matter. In response to said message, plaintiff started to defendant’s office as requested, and when near the office plaintiff met Joiner. The latter demanded that plaintiff then and there sign a receipt for the said consignment of fruit. Up to and including above, Harry Joiner was the unquestioned agent of defendant, and was acting within the scope of his employment in endeavoring to obtain from plaintiff a receipt for said consignment, and a settlement of the controversy in respect to said shortage. It is insisted, however, by respondent, that Joiner was not acting within the scope of his employment when he shot plaintiff at the time and place mentioned in the complaint. The petition, however, alleges, that plaintiff, under protest, started to comply with Joiner’s demand and was in the very act of signing the receipt when Joiner, being at the time the agent of defendant, and acting within the scope of his employment, as such agent, did suddenly and without warning draw a pistol, and without just cause or provocation wantonly, maliciously and unlawfully shoot plaintiff, etc.

Joiner was there at the time and place of shooting as the vice-principal of defendant. The plaintiff was there upon the invitation of defendant for a legitimate purpose. He and Joiner were in the midst of the very 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, etc.

A large portion of the business of this country is conducted through agents of common carriers; and in a large measure, the public is required to come in contact with these agents in dealing1 with public service corporations. Upon grounds of public policy, if for no other reason, the principal should not be permitted to withdraw from the business and turn the same over to agents who have no regard for the public welfare, and thereby escape responsibility which he would have to bear, if attending to the business in person.

It ii? not imposing too great a hardship upon either corporations or individuals, to require them to respond in damages to legitimate patrons, • for unprovoked, wanton and malicious assaults, inflicted upon them, while in the very act of settling their controversies with the agent of the carrier. The conclusion thus reached is fully sustained hy the great weight of modem jurisprudence. [Whiteaker v. C. R. I. & P. R. R. Co., 252 Mo. 438; O’Malley v. Construction Co., 255 Mo. l. c. 391-2; Winn v. Railroad, 245 Mo. l. c. 415-6; Haehl v. Railroad, 119 Mo. 325; Perkins v. Railroad, 55 Mo. 201, 214; Garretzen v. Duenckel, 50 Mo. 104; Whimster v. Holmes, 177 Mo. App. 130; 5 Thompson on Corporations (1 Ed.), sec. 6298; Richberger v. Express Co., 73 Miss. 161; Railroad v. Hackett, 58 Ark. l. c. 387; Tillar v. Reynolds, 96 Ark. 358; Skipper v. Clifton Mfg. Co., 58 S. C. 143; Stranahan Co. v. Coit, 55 Ohio St. 398; Carlberg v. House Furnishing Co., 178 Ill. App. 424; Ziegenhein v. Smith, 116 Ill. App. l. c. 82; D. & R. G. Ry. v. Harris, 122 U. S. 597; Lake Shore & M. S. Ry. Co. v. Prentice, 147 U. S. 101, 109; Forrester v. So. Pac. Ry. Co., 36 Nev. 247; 2 Cooley on Torts (3 Ed.), secs. 627, 631, 632; Wood’s Law of Master & Servant (2 Ed.), secs. 307-309; 1 Shearman & Redfield on Negligence (6 Ed., by Street), sec. 146, p. 356; Pierce on Railroads, pp. 277-8; 2 Mechem on Agency (2 Ed.), secs. 1929-1960; 1 Clark & Skyles on Law of Agency, secs. 491, 493, 494, 502; Leavitt’s Law of Negligence, pp. 527-8; Otis Elevator Co. v. First Nat. Bank, 163 Cal. 31; Ryder v. City of La Grande, 73 Ore. 227; Hardeman v. Williams, 169 Ala. 50.] Many other eases are cited in above authorities to same effect. A few quotations' will illustrate the trend of the modern rule in dealing with this subject.

Haehl v. Wabash Ry. Co., 119 Mo. 325, has not only become one of the leading cases in this State upon, the question under consideration, but has been frequently cited with approval in text books and opinions of other States. In the Haehl case, suit was brought by plaintiff to recover damages, on account of the killing of her husband, by defendant’s watchman in charge of its bridge across the Missouri river at St. Charles, Missouri, in March, 1891. She recovered in the trial court a judgment for $5000, and it was affirmed by the Supreme Court. The bridge in charge of said watch-, man was a railroad bridge, and not a public highway for foot passengers. At about eight o ’clock in the forenoon of March 17, 1891, deceased was seen crossing above the bridge from the St. Louis county side towards St. Charles on the west. He had gone over the approach on the St. Louis side, the main bridge and a part of the approach on the St. Charles side, when he was met by James W. Hill, defendant’s bridge watchman, and his brother. The watchman motioned to him to go back, but the latter failed to do so. Hill went up to him and had some conversation with him, but no witness heard it. “It resulted, .however, in the deceased starting back, when Hill struck him on the back or shoulder twice with a club or billy, and the deceased commenced running back towards the St. Louis side, followed by Hill. They thus proceeded until the deceased had recrossed the trestle on the St. Charles side, the whole of the main bridge, and about one-half the approach on the St. Louis side, pursued by Hill, when they two being thus alone on that approach, Hill in the rear of deceased and distant about fifteen feet from and pursuing him, a pistol shot was fired, the ball striking the deceased in the back of the neck a little to the left of the median line and on a line with the base of the ears,” producing his death.

With the above facts before it, this court sustained the judgment below, although the jurors in arriving at their verdict were authorized, if they found for plaintiff, to allow both compensatory and exemplary damages.

In the Haehl case, supra, the deceased was not lawfully upon the bridge and was retreating when shot. Here, the plaintiff was not a trespasser, bnt was transacting his, and the company’s business, with the defendant’s agent, upon invitation, and while in the very act of complying with the agent’s request was shot without warning and without provocation. •

In Richberger v. Express Co., 73 Miss. 161, the trial court sustained a remurrer to a petition very similar to the one at bar, and its action in that respect was reversed by the Supreme Court and said petition held to be good. In the above case, plaintiff had been made to pay an overcharge on express matter by the local agent of defendant, and the general agent had been seen and said it would be arranged. Plaintiff saw the local agent about December 25, 1894, bnt was put off. The petition avers that about the first day of January, 1895, plaintiff went to the office of said express company, upon business with it. Said agent of defendant in charge of the office informed plaintiff that he then and there desired to refund to plaintiff said overcharge, “and then and there paid the same to plaintiff, and required plaintiff to sign a receipt for the same, and when plaintiff signed and delivered said receipt to said agent, the said agent did then and there, immediately upon the reception of said receipt, and while plaintiff was there in the business office of said company, wilfully, wantonly, oppressively and wrongfully curse, abuse, insult and maltreat plaintiff, because plaintiff had demanded and received from said company the overcharge as aforesaid. ” Judge Whitfield, upon pages 171-2, closed his opinion in the case just cited, with a quotation from the very able opinion of Judge Andrews of the New York Court of Appeals, in Rounds v. Railroad, 64 N. Y. l. c. 134, as follows:

“The master who puts the servant in a place of trust or responsibility, or commits to him the management of his business or care of his property, is justly held responsible when the servant, through lack of judgment or discretion, or from infirmity of temper, or imder the influence of passion aroused by the circumstances and the occasion, goes beyond the strict line of his duty and authority and inflicts an unjustifiable injury upon another.”

In the well considered case of Otis Elevator Co. v. First Nat. Bank, 163 Cal. l. c. 39, Judge Lorigan, speaking for said court, said:

“It is the general doctrine of the law, as it is our statutory rule, that a principal is liable to third parties not only for the negligence of its agent in the transaction of the business of the agency, but likewise for the frauds, torts or other wrongful acts committed by such agent in and as part of the transaction of such business. [Story on Agency, sec. 452; Shearman & Redfield on Negligence, sec. 65 ; Civ. Code, sec. 2338. J After declaring this to be the rule, Story says: ‘In all such cases the rule applies, respondeat superior; and it is founded upon public policy and convenience; for in no other way could there be any safety to third parties in dealings either directly with the principal or indirectly through the instrumentality of agents. In every such case the principal holds out the agent as competent and fitted to be trusted; and thereby, in effect, he warrants his fidelity and good conduct in all matters within the scope of his agency.’ ”

In Pierce on Railroads, at pages 277-8', the rule is tersely stated as follows:

“The company is liable for the acts of its servants in the course of their employment, both in the rightful use and in the abuse of the powers conferred upon them; and when they keep within the course of their employment, it is responsible for their negligence or wrongful act, although they are acting against its instructions, or even wilfully.”

In 2 Cooley on Torts (3 Ed.), section 626, page 1017, the greatest of all writers upon this subject, in clear and forceful language, said:

“The master is liable for the acts of his 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.”

In 2 Mechem on Agency (2 Ed.), section 1929, .the same principle of law is clearly expressed in the following language:

“It is obvious, therefore, that the question of the principal’s or master’s liability cannot always be determined merely by putting a label upon the motive. The motive is important, but it is important not so much for the purpose of determining how the act was done as to aid in deciding whose act it was. Certain it is, at any rate, that the tendency of the modern cases is to attach less importance to the motive with which the act was done, and to give more attention to the question as to whose business was being done and whose general purposes were being promoted.”

The same author, in the same volume, under section 1960, page 1523, sums up the law upon this subject as follows:

“In many cases no better definition can be given than the words themselves suggest. But, in general terms, it may be' said that an act is within the course of the employment if (1) it be something fairly and naturally incident to the business, and if (2) it be done while the servant was engaged upon the master’s business and be done, although mistakenly or ill-advisedly, with a view to further the master’s interests, or from some impulsé or emotion which naturally grew out of or was incident to the attempt to perform the master’s business, and did not arise wholly from some external, independent and personal motive on the part of the servant to do the act upon his own account.”

We deem it unnecessary to quote further from the authorities upon this subject. The rule declared in the Haehl case supra, is in full accord with the recent utterances of this court, and is sustained by the decided weight of authority. We therefore hold that the first count of the petition states a good cause of action, and that the demurrer thereto was improperly sustained.

The second count of the petition sets out in a general way substantially the same facts pleaded in the first count, and in addition thereto attempts to plead hnowledae. upon the part of defendant as to the temper, disposition, character and unfitness of its agent who assaulted plaintiff. While it does not appear from the petition that such knowledge came to defendant, in time by the exercise of ordinary care’ to have removed said agent before the assault was made, yet the other facts stated in said count, under the authorities heretofore cited, are sufficient to constitute a good cause of action. Hence the demurrer to the second count was improperly sustained.

We have reached the conclusion, that each count of the petition states a good cause of action.

We therefore reverse and remand the case as to both counts, with directions to the trial court to set aside the judgment rendered upon each of said counts; to grant the plaintiff a new trial as to each count and that the cause be proceeded with in accordance with the views herein expressed.

Brown, G., not sitting.

PER CURIAM. — The foregoing opinion by Raiuuy, C., is adopted as the opinion of the Court in Banc.

Graves and Bond, JJ., concur; Faris and Bevelle, JJ., concur in result; Woodson, G. J., dissents in separate opinion, in which Blair, J., concurs; Walker, J., dissents.

WOODSON, C. J.

(dissenting): — I dissent from the majority opinion in this case, principally for the reasons stated by me in the dissenting opinion filed in the case of Whiteaker v. Railroad, 252 Mo. 438, 1. c. 463; also for the reason that it is absurd, to my mind, to say that public service corporations of the country in employing men to conduct their business thereby authorize them to commit murder or other felonies, which constitute no part of the acts performed by them as such agents. No such idea ever enters the minds of the carrier, their employees or any of their customers; consequently, it is a non sequitur to say that such an agent or employee as Joiner, in this case, was acting within the scope of his employment when committing the crime with which the petition charges him — one of the most heinous known to Grod and man. In other words, no such corporation could, by express authority, authorize one of its employees to commit a crime in the performance of his duty to the company, unless he was acting within the scope of his employment. If such authority should be given, it would clearly be ultra vires, and not binding on the company; but should the officers of the company direct the agent to commit a crime and he should perpetrate it, then he and they would be particeps criminis in its commission, which, in no manner, could or would render the company liable to the injured party in damages; consequently, in order to render'the company liable in such a case, the agent must be acting within the scope of his employment, that is, the crime committed must have been a part of or an integral element of the act he performed for the company under its contract with him authorizing him to perform the same; and in such a case it is wholly immaterial whether his authority to commit the crime was given in express terms or implied from the authority to perform the act of which the crime was a part. This is self-evident.

That being true, then let us for a moment briefly consider what services or acts the agent was employed to perform for the defendant. While the petition does not state them in detail, yet in general terms it charges that he was the agent of the company at Edwardsville, Illinois, and that it was his duty to deliver to its patrons all goods transported by it to them at that point, and to take their receipts therefor.

It is also charged that the goods which the company had transported to plaintiff at Edwardsville, had been delivered to him by the agent-days prior to the day upon which the shooting occurred.

From this statement in the petition it is clearly seen that the act of delivering the goods in no manner caused or contributed to the injury; that service had been fully performed long before the shooting occurred. So this fact will be dismissed without further consideration.

Consequently, if the company is liable to plaintiff, it must be for the reason that it authorized the agent to use violence if necessary toward the plaintiff in the performance of the service of the company in procuring the receipt for the goods delivered to him.

There is no charge in the petition that the defendant had given the agent express authority to commit the assault upon the plaintiff, and, therefore, if the agent possessed that authority, it must be implied from the general authority given by the defendant to all of the agents, the plaintiff included, to take receipts from its patrons for goods transported for and delivered to them. So it is seen that the question has been narrowed down to the single legal proposition, was the crime committed by the agent, a part of, or an integral element of the act of the agent in demanding the receipt of the plaintiff for the goods previously delivered to him?

That question, in my opinion, must he answered in the negative. The authority of the agent to demand and receive the receipt in no manner required the exercise of any force or violence on his part toward the plaintiff, nor is such a thing contemplated by any one in the performance of such a duty; and if procured by violence, the receipt would be worthless for the purpose for which the company wanted it, namely, as evidence of the delivery of the goods. Its procurement by that means would amount to duress or robbery, which would render the receipt illegal and destroy it as evidence of the delivery, the design of the company in demanding it.

Clearly the case of Haehl v. Wabash Ry. Co., 119 Mo. 325, does not support the propositions of law announced by our learned commissioner in this case. In that case the performance of the act of the agent for the defendant, which resulted in the death of Haehl, was authorized by the company, and from the very nature of that act,, force or violence was contemplated, if necessary, for its performance. There the agent was a watchman, and among other things he was required to keep trespassers off of defendant’s bridge, and while expelling Haehl therefrom the latter was killed by the agent. In discussing that case, the court on page 340, said:

‘ ‘ It is conceded that a part of the business which Hill was employed to perform as watchman, was to keep trespassers off of defendant’s bridge; this necessarily involved the duty of putting them off after they got on, if they were found unwilling to go. The evidence tended to show that Hill was engaged in the performance of this duty when he fired the fatal shot; that the business was not done; that it was not taking care of itself, but that the defendant’s servant at the time was engaged in it and concerned about it; that he shot dum fervet opus; and so far as evidence discloses, was concerned about, and engaged in, no other business.”

In the case at bar, the duty of the agent to demand the receipt from the plaintiff did not involve the duty of using force or violence toward him. Nor does the case of Whiteaker v. Ry. Co., 252 Mo. 438, lend any support to the opinion of the commissioner. In that case it was the duty of the conductor of the train to keep trespassers off of it. There the court held, as in the former case, that the act of expelling persons from the train necessarily implied the authority to expel them therefrom by force, if necessary, and that if more force was used than was necessary to accomplish his ejection, and he was thereby injured, then the company was liable. I dissented from the opinion in the latter case, not because it did not announce correct legal propositions, but for the reason that there was not sufficient evidence upon which to base them, as will appear .by the dissenting opinion filed therein.

But in both of those eases, this court clearly recognizes the principles of law I am here contending for. In the.first case this court on page 339,. said:

“But if his [the master’s] business is done, or is taking care of itself, and his servant not being engaged in it, not concerned about it, but impelled by motives that are wholly personal to himself and simply to gratify his own feeling of resentment, whether provoked or unprovoked, commits an assault upon another, when that has and can have no tendency to promote any purpose in which the principal is interested and to promote which the servant was employed, then the wrong is the purely personal wrong of the servant for which he and he alone is responsible.”

The case of Rounds v. Railroad, 64 N. Y. 129, is one of the.best considered cases in this country upon the subject, and clearly supports the views I have here expressed. At page 136, Judge Andrews puts the matter clearly:

“If he [the servant] is authorized to. use force against another when necessary in executing his master’s orders, the master commits it to him to decide what degree of force he shall use; and if through misjudgment or violence of temper he goes beyond the necessity of the occasion and gives a fight of action to another, he cannot as to third persons be said to have been acting without the line of his duty or to have departed from his master’s business. If, however, the servant', under the guise and cover of executing his master’s orders and exercising the authority conferred upon him, wilfully and designedly- for the purpose of accomplishing his own independent, malicious or wicked purposes, does an injury to another, then the master is not liable. The relation of master and serant as to that transaction does not exist between them. It is a wilful and wanton wrong and trespass, for which the master cannot be held responsible. And when it is said that the master is not responsible for the wilful wrong of the servant, the language is to be understood as referring to an act of positive and designed injury, not done with a' view to the master’s service or for the purpose of executing his orders.”

At page 137 : “It is conceded that the removal of the plaintiff from the car was within the scope of the authority conferred upon the baggageman. .

But the 'court could not say from the evidence that the brakeman [baggageman] was acting outside of and' without regard to his employment or designed to do the injury which resulted, or that the act was wilful within the rule we.have stated.”

In the case of Pendleton v. Kinsley, 3 Cliff. 416, Fed. Case No. 10922, Judge Clifford said: “The moment the passenger enters the steamer or other conveyance he is more or less under the control of the master- or conductor and subject to their orders. Fit or unfit, humane or brutal, good-tempered or morose,’ the passenger is comparatively helpless and may be obliged to submit for the time without any means' of redress.”

In the case at bar, as stated by counsel for respondent : ‘ ‘ The assault upon appellant was not committed upon the premises of the respondent, but appellant assaulted him upon the public highway near the premises of the respondent, and after being intercepted by respondent’s agent while he was on the way to respondent’s office in response to a telephone-message from the respondent’s agent requesting him to come to the office. Plaintiff was not under the ‘control’ of defendant or any of its agents and so ‘helpless and obliged' to submit without any means of redress’ within the reason of the rule. ’ ’

Where the reason for the rule stated by Judge Clifford fails, the rule fails also, and therefore, the defendant was not the insurer of the safety of the plaintiff against assaults made by its agents, except when acting within the scope of their employment.

Thompson on Corporations (1 Ed.), in section 6298 states: That the old rule that the master was in no case liable for the wilful or malicious act committed by the servant is unsound. In section 6299, entitled ‘ ‘ The True Test Suggested, ’ ’ he says: ‘ ‘ The modern rule is, that if a servant, authorized to use force about his master’s business, uses excessive force, his master must answer in damages to the person thereby injured, wholly without reference to the state of mind under which the servant acted. If he is required to use force, and is left to his discretion as to how much he shall use, the master will, upon either view of the subject [i. e., whether with or without malice], be answerable if he uses too much force through negligence.”

In section 6300 he says: “It must now be conceded as a modern rule that the mere fact that the wrong complained of was wilful or malicious, or that in doing it the state of mind of the actor was really that which is characterized by the use of the words ‘malice,’ ‘hatred’ or ‘ill-will,’ does not exonerate the corporation from liability. But on the other hand-, this very state of mind of the actor may he relevant evidence, and in some cases of the most cogent nature, to show that when he did the act he was not acting for the corporation. . . . The actor may he the agent, and even a principal officer of the corporation, and he may even at the time of doing the wrongful act he intending to serve the corporation, and yet the act may be of such a character so extraordinary as to defeat any presumption that is could possibly he authorized by the corporation. . . . Assuming in such cases that there is authority to use force in case of resistance or non-compliance with orders, may not the force used he so extreme — may not the weapon employed be so unusual — as entirely to defeat this presumption of authority?”

In Richberger v. Express Co., 73 Miss. 161, the court, at page 171, refers with approval to Rounds v. Delaware, Etc. R. R. Co., 64 N. Y. l. c. 136, quoted in Railroad v. Latham, 72 Miss. 32, to show when in this character of case the corporation would not be liable, and quotes at the end of the opinion from Rounds v. Delaware, Etc. R. R. Co., to show when liability exists.

Next consider 2 Cooley on Torts (3 Ed. — Lewis), sections 627, 631, 632. In section 627: “But the liability of the master for intentional acts which constitute legal wrongs can only arise when that which is done is within the real or apparent scope of the master’s business. It does not arise where the servant has stepped aside from his employment to commit a tort which the master neither directed in fact, nor could he supposed from the nature of his employment to have authorized or expected the servant to do.”

Judge Cooley, for the Supreme Bench of Michigan, in a case of a boy, the servant of defendant, driving over plaintiff, approved an instruction that “if the hoy ‘drove in a careless and reckless manner, he would he acting within the scope of his master’s employment; but that if he wantonly, wilfully and intentionally ran over the plaintiff, he would not be acting within the scope of his master’s authority. But if he carelessly,' unintentionally and accidentally ran over the plaintiff, then the plaintiff should recover.’ ” “This instruction” (says Judge Cooley) “was all the defendant could reasonably aslc. It stated the law correctly and fairly. If it was a case of intentional injury, defen-' dant was not responsible.” [Cleveland v. Newsom, 45 Mich. 62.] This opinion of Judge Cooley’s was approved and declared to be the law of Michigan in 1911 in the case of Ducre v. Sparrow-Kroll Lumber Co., 168 Mich. 49, opinion by McAlvay, a case where a salesman wantonly and wilfully beat with a hammer a drunken person who came into the store. “It was a wanton, wilfull and intentional injury committed without regard to consequences and within a narrow margin of having resulted in the crime of manslaughter. Under the circumstances presented by this record', such an act cannot be held to have been committed by this man while in the performance of his duties for defendant within the scope of his employment; and our conclusion is that, as a matter of law, no liability attached to the appellant.” [Ducre v. Lumber Co., supra.]

Woods’ Law of Master and Servant (2 Ed.), sections 307-309. — In section 307 it is said: “The simple test is whether they were acts within the scope of his employment; not whether they were done while prosecuting the master’s business; but, whether they were done' by the- servant in furtherance thereof, and were such as may fairly be said to have been authorized by him. ’ ’

In section 309, at page 585, it is said: “He must have been authorized, either expressly or impliedly, to do the act in some manner, which he has improperly or wrongfully performed, and the fact that he was only authorized to do the act in a certain way does not save the master from liability.”

At page 586 it is said: ‘ ‘ The rule may 'be stated thus: For a wilful and malicious trespass of a servant, not commanded or ratified by the master, but perpetrated to gratify the private malice of the servant under mere color of discharging the duty which he has undertaken'for his master, no action will lie against the master. But if the act of the servant was necessary to accomplish the purpose of his employment and was intended for that purpose, however ill-advised' or improper, then it was implied in the em-' ployment, and the master is liable, though the servant may have executed it wilfully and maliciously.”

In Shearman & Redfield on Negligence (6 Ed., by Street), sec. 146, p. 356, it is again said the master is liable for the acts of his servant in the course of the servant’s employment. In section 148 it is said: “The fact that the servant was at the time of the injury engaged in the service of his master is not conclusive of the master’s liability. . . . The act complained of must be within the scope of authority which- the agent had from the master, or which the master gave the servant reasonable cause to believe that he had or which servants employed in the same capacity usually have or which third persons have a right to infer from the nature and the circumstances of the employment. ’ ’

In Clark & Styles, on Law of Agency, sections 491, 493, 494, 502, are cited. In section 502, concerning assault and battery by agent, it is said: “In accordance with the principles heretofore considered a principal may be held liable for an assault committed by his agent in the course of his employment and for the purpose of advancing the principal’s interests. Hence, in cases where an agent is authorized to use force against another in order to carry out his principal’s orders, the principal commits it to the agent to decide what degree of force he shall use, ’ ’ and the principal is held liable for excessive force of wanton assaults. “If . . . the agent . . . ., where he is not authorized to use force at all, wilfully and designedly, for the purpose of accomplishing his own independent, malicious and wicked purposes, does an injury to another as by assaulting him, the principal is not liable therefor.”

All such men should stand before the courts and jurors of their country in the nakedness of their crime, unveiled with the cloak of apparent authority from their employer, who never dreamed of such depravity, aud receive the just punishment the law wisely prescribes for them. They are nothing but criminals disguised in sheep’s clothing.

But it is said, what will become of the innocent and injured public who suffer at their hands? Answer : What becomes of the innocent and injured public who suffer at the hands of all criminals, regardless of their avocation in life? All such criminals should be swiftly tried and speedily punished for their violation of the law, regardless of the badge they wear, whether that of an individual, an agent or an officer of the law; and in my opinion, those who commit crime under the guise of real or apparent authority are more guilty than the individual who acts upon his own initiative and responsibility, for the latter knows that he must alone meet the charge and suffer the consequences thereof, whereas the former cowardly shield themselves behind their cloak of real or apparent authority to reek their hellish designs upon others.

The score and a half or more authorities cited in the majority opinion in support of companies’ liability, as well as the many more that might be cited, show to what extent this subterfuge has been resorted to as a cloak under which to commit wrong, knowing or supposing that the company, prompted by its financial interests, will defend the civil side of all such civil actions, and thereby at the same time extract from the crime the poisonous malignity which prompted it, and thereby stay criminal prosecution.

In my opinion, it would be for the better public policy to let all such criminals know that they, and they alone, must personally stand responsible for such crimes; and at the same time give full force and effect to the letter and spirit of the contract of employment, namely, that the agent is to transact the 'business of the employer in an efficient, prudent and careful manner, and not to commit crime against God and man under the cloak of its authority.

The law is and always has been that where the principal exercises ordinary care and prudence in the selection of an employee, he is not liable to a fellow employee because of injury inflicted in consequence of the unskillfulness of the former. That being true, then how much stronger is the reason for the law which universally holds that no person is liable for the crime of another without he is a party to it or a conspirator in its commission?

In the case at bar there is no evidence tending to show that the respondent employed Joiner to commit the crime charged in the petition, or that it was necessary for him to commit it in asldng for the receipt, nor that the respondent conspired with him or knew of its commission until long thereafter.

Public service corporations must, because of the very nature of their business, conduct the same through numerous agents and the law presumes that they are men of good character and law abiding; and never presumes that any one will commit crime, and under that presumption it does seem to me that it is a harsh and unjust rule which holds such a company liable for the crime of one of its agents, the commission of which was not contemplated, necessary or within the scope of his employment, expressed or implied, but was wholly beyond the legal bounds of contractual liability. If liable, it is because the company was a party to the crime, of which, there is no evidence.

Of course, had Joiner injured the appellant while acting, within the scope of his employment', the company should be held strictly liable, but not otherwise.

I am therefore of the opinion that the judgment of the circuit court should be affirmed.

Blair, J., concurs.


source: Caselaw Access Project

author: BOND, J.

license: Public Domain

text:
    THE STATE ex rel. RUBY E. ODELL v. FRANK G. JOHNSON et al., Judges.
    In Banc,
    February 9, 1916.
    LISTING OF CASHS FOR TRIAL: Rules of Court. In view of the facts set out in the opinion it is held that relator is not entitled by writ of mandamus to compel the presiding judge of the circuit court of Jackson county to make an immediate assignment of and set for trial her suit against the Metropolitan Street Ttailway Company et al. pending in said court.
    Mandamus.
    Writ denied.

      G. W. Prince, E. A. Harris and J. E. Westfall for relator.
    (1) The cause was properly at issue when listed for jury trial. The answer of the defendant Metropolitan Street Railway Company was a general denial. The answer of the defendant Standard Oil Company under the authorities is a general denial and not a plea of contributory negligence. Johnson v. Traction Co., 176 Mo. App. 182; State ex rel. v. Rau, 93 Mo. 130; Jordan v. Buschmeyer, 97 Mo. 97; Watkinds v. Railroad, 38 Fed. 711; Benjamin v. Railroad, 245 Mo. 598.

      (2) Relatrix was entitled to have her cause of action assigned for jury trial in its regular numerical order when reached in the regular, orderly and lawful procedure of the court in the trial of jury cases. Rule 22 of Circuit Court; Sec. 10', art. 2, Mo. Constitution. (3) The respondents, judges of the circuit court, violated the court’s own rules as well as the substantive law of the State, in assigning other cases for jury trial which were listed for jury trial subsequent to the day on which relatrix listed her said cause for jury trial. Rule 22 of Circuit Court; Sec. 10, art. 2, Mo. Constitution. (4) Said respondents, judges of the circuit court, unlawfully and without authority refused to assign relatrix’s cause of action for jury trial for the sole reason that the Metropolitan Street Railway Company was a defendant in relatrix’s cause of action. Sec. 10, art. 2, Mo. Constitution. (5) This court has authority by mandamus to compel the respondents,judges of the circuit court, to assign relatrix’s cause of action for jury trial. 'State ex rel, v. 0 ’Bryan, 102 Mo. 254; State ex rel. v. Philips, 97 Mo. 347; State ex rel. v. Gibson, 187 Mo. 554; State ex rel. y. Grimm, 220 Mo. 489.

      Clyde Taylor, John E. Lucas and Charles A. Stratton for respondents.
    (1) The issuance of the writ of maüdamus is within the discretion of this court. 19 Am. & Eng. Ency. Law (2 Ed.), p. 753-b; State ex rel. v. Cottengin, 172 Mo. 134; State ex rel. v. Bridge Co., 206 Mo. 74; State ex rel. v. Wilder, 211 Mo. 305; 26 Cyc. 143, 144. (2) “The Supreme Court will not grant the writ of mandamus to an inferior court unless it appear that the court has omitted or refused to perform its duty.” State ex rel. v. St. L. Court, 41 Mo. 598, syl. 2; State ex rel. v. Pludson, 226 Mo. 265. (3) The writ will not issue when it will cause disorder and confusion. 26 Cyc. 146, citing: Bibb v. Gaston,* 40 So. (Ala.) 936; Bd. v. San Diego, 128 Cal. 369; People v. Olsen, 215 111. 620. (4) “Mandamus will not lie to control or review the exercise of the discretion of any court, hoard or officer when the act complained of is either judicial or quasi-judicial. ” 26 Cyc. 158; State ex rel. v. St. Louis, 158 Mo. 505; State v. Cramer, 96 Mo. 75; State v. Wilson, 49 Mo. 146; 26 Cyc. 160. (5) The manner of assignment and trial of cases is within the discretion of the circuit court. Laws 1913, p. 212; Rule 22 of Circuit Court; 26 Cyc. 208; Allen v. Calhoun, 6 Cowen (N. Y.), 32; Carpenter v. Jones, 121 Cal. 362. (6) Relator has been guilty of gross laches in this ease. State ex rel. v. Reynolds, 243 Mo. 715. (7) Plaintiff’s case was not at issue at the time she listed same as required by Rule 22 of the circuit court.
   OPINION.

I.

BOND, J.

An original writ of mandamus was awarded by this court upon the relation of Ruby E. Odell, directed to the presiding judge of the circuit court of Jackson County sitting in the assignment division of that court by the authority of rule eighteen, adopted by the court, which imposed on him the duties of controlling the docket and assignment of causes. Our writ required said presiding judge to show cause why he should not make an immediate assignment and setting for trial of a certain suit pending in said court, brought by the relator against the Metropolitan Street Railroad Company and the Standard Oil Company.

To this alternative writ the presiding judge at the time and his successor made returns praying for the quashing of our writ. Relator moved for judgment on said returns and thereafter filed an answer to them, ■ wherefore, a special commissioner was appointed to take the evidence and report his findings, and state his conclusions of law to this court. In compliance with this reference, the commissioner, Hon. Willard P. Hall, has made his report and has recommended that the alternative writ of mandamus awarded herein he quashed, and the prayer for the peremptory writ he denied.

Counsel for the respective parties having been heard in oral argument and upon a submission of briefs on the issues involved, and the evidence taken before the commissioner, the cause was thereupon submitted to this court in Banc for decision.

II.

It is urged on behalf of the relator in support of the writ that the presiding judge of the assignment division of the circuit court of Jackson County was under the legal duty to assign her cause of action for trial to one of the divisions of that court in its regular numerical order, and the failure so to do was in disregard of rule 22 adopted by that court in the following terms:

“ASSIGNMENT OF CAUSES.
“At least two weeks before the beginning of each term, and as often thereafter as may be necessary, the presiding judge shall cause to he posted on the bulletin boards in the assignment division and the circuit clerk’s office a notice requiring attorneys to file with the clerk of the assignment division on or before the date fixed in said notice a memorandum of each case at issue of which a trial is desired, between the numbers stated in said notice. A separate memorandum shall be filed for each case, and such memorandum shall contain the number and title of such case, and the attorneys of record of each of the parties thereto.
“The presiding judge shall, from time to time, make and cause to be posted ás above, settings of the cases thus noted for trial. On the day that such cases are set for trial they shall be placed in numerical order on the ‘Trial’ list, and the first case on such ‘Trial’ list shall be assigned to the next waiting division.”

The transcript of the evidence filed by the commissioner shows that on the 20th of January, 1911, the foregoing rule was modified by the court en banc and publication of such modification was made in the daily record, to-wit:

“NOTICE.
“Beginning with the January term, a new plan will be inaugurated in the assignment of cases against the Metropolitan Street Railway Company. Twelve of the lowest numbered cases (no more than three cases in which plaintiffs are represented by the same attorneys) will be set down for each week.
“The court will expect plaintiffs to be ready when cases are reached for assignment and will expect defendant to keep three attorneys constantly available and ready to try any of such cases.”

The report of the special commissioner further shows that in January, 1913, another change and modification was made in the foregoing rules; viz., “Metropolitan cases were separately listed without any limitation as to number except that the assignment judge would not set more cases for trial than'thought proper, and enough.cases would be set for trial to keep at least three divisions of the court always busy. And it was ordered that attorneys for ■ plaintiffs. in Metropolitan cases should receive .twenty-four hours’ notice of the setting of their cases for trial.”

The authority of the circuit court of Jackson County en banc to make reasonable rules for the conduct of its business and modification thereof, was inherent in its constitution as a court of general jurisdiction and specially conferred by a statute including that court and defining its powers.

Section 3970, Revised Statutes 1909, provides:

“In addition to the ordinary power of making rules conferred by the general law, the court en banc may make all rules which .its peculiar organization may, in its judgment, require, different from the ordinary course of practice, and necessary to facilitate the transaction of business therein.”
Laws 1913, p. 212, provide:
“ . . .. Members of the court en banc . . shall have power to frame and enact such rules for the numbering of civil cases now pending or hereafter brought therein, for the proper distribution of civil cases for trial and disposition among the nine divisions of said court at Kansas City, and for the transfer of civil cases to and from each of said seven divisions and the Independence divisions, which rules may in like manner be changed from time to time, as may be found necessary. . -. . ” [Allen v. Calhoun, 6 Cowen (N. Y.), 32; Carpenter v. Jones, 121 Cal. 362.]

The foregoing rules and modifications thereof were in force when this writ was prayed.

The facts as to the suit brought by plaintiff against the Metropolitan Street Railway Company and Standard Oil Company, were these: Said suit was begun on the 26th of November, 1910. Its docket number was 54,386. Owing to the pleadings filed by defendants and the efforts made by one of them to remove the case, and owing to the retiracy of the original counsel for plaintiff, no issue was reached on the original, petition, hut an amended one was filed on the 9th day of April, 1914. To this amended petition separate answers were filed by the defendants on July 18 and August 21, 1914.

In January, 1915, court en banc turned back in the listing of cases and made two calls; first, for the listing of cases for trial from number 16 to 53,997 and thereafter in the same month called for all cases from number 54,001 to 70,000.

On February 1, 1915, relator listed her case for trial under the last call. On June 7,1915, relator filed a reply to the answers of defendants and at the same date filed a motion praying her cause of action be specially set or assigned for trial. This motion was overruled on the 9th of June, 1915, because in conflict with the rules then in force regulating the order of trials of causes, to which action of the court relator duly excepted.

If the replies filed by relator were essential to the joinder of issues on the answers to her suit against respondent then her cause of action was not assignable for trial under the rule and amendments thereof, because it had not been previously listed. But waiving that technical point and construing her replies to have been unnecessary, for the reason that in their essence the answers of the two defendants were only general denials, the question remains, whether under the record and the rules and the amendments thereof in the circuit court then'in vogue, that court abused its discretion in overruling relator’s action.

III.

In his finding as to the workings of the court rules as amended, the learned commissioner finds that they were formed to expedite the trial of Metropolitan cases and have expedited the trial °ther eases as well; that the capacity of the nine divisions of the court does not suffice to keep pace with its docket, hence, no cases are tried at the return term, and the court, when cases are reached which are returnable to the term preceding the one in session, generally turns back to the beginning of the docket. That in so doing it does not necessarily turn back on the two lists of cases (Metropolitan and general) at the same time, for one may be ahead of the other, since no case is listable until at issue and every case bears, at all times, its original number, and when listed, must be listed according to the date of its original number and not the date when issue was joined.

Under this system of return calls of its docket from the beginning, the court also postpones the trial of cases listed under such calls to those which have been listed under previous calls and are undisposed of. These latter are assigned for trial before the cases newly listed. The application of this order of business to the matter in hand was that the court en banc called on November 5, 1913, for a listing of general cases, and on February 30, 1913, for a listing of Metropolitan cases — in both instances between the same numbers; to-wit, 16 (that being the beginning of the docket) and 59986.

During the year 1914, the court called for a listing of two classes of cases from 59986 to a higher number. In following the plan provided for in its rules as modified, the court did not again call for a listing of its docket from the beginning within numbers which would include relator’s' case until January 15, 1915, and it was after this call that her case (number 54386) was listed, on February 1, 1915, as previously stated.

At the time relator’s case was thus listed there remained unassigned other Metropolitan cases of higher numbers previously listed under regular calls. Upon these facts the commissioner finds; viz., “Delator’s case has been treated regularly and consistently in accordance with the system in force in the circuit court as herein outlined. No claim to the contrary is made for the relator. Delator’s motion to assign her case for trial was, in effect, for a special setting of her case, and was denied for that reason and because in conflict with said system.”

As the court overruled the motion of relator to set her case specially for trial because that would result in a Violation of the orderly procedure prescribed for the calendar of its docket and the trial of the cases pending thereon, it necessarily follows that the legality of its action in so doing is the only thing to be considered. The theory of relator is that the modification of rule 22 wrought out a plan which gave' the trial of cases listed generally a right of precedence over the list of cases against the Metropolitan Street Railway Company in contravention of the Constitution; to-wit, “The courts of justice shall be open to every person, and certain remedy afforded for every injury to person, property or character, and that right and justice shall be administered without sale, denial or delay.” [Const. of Missouri, sec. 10, art. 2.]

It has been uniformly held that this provision does not deprive the courts of general jurisdiction of their power to make reasonable rules governing the order of trial of cases and regulating their proceedings in their administration of the law. That the exercise of such inherent and necessary power on the part of the courts does not violate the above quoted clause of' the organic law. [Toledo v. Preston, 50 Ohio St. 361; Ex parte Pollard, 40 Ala. 77; Stanley v. Barkley, 211 Pa. St. 313; Bruns v. Crawford, 34 Mo. 330; Johnson v. Higgins, 3 Metc. (Ky.) 566; Richardson Fueling Co. v. Seymour, 235 Ill. 319; Rauchberger v. Street Ry. Co., 52 N. Y. Misc. 518; Merchants ’ Bank v. Green-hood, 16 Mont. 395; Maloney v. Hunt, 29 Mo. App. 379; Smith v. Keepers, 5 N. Y. Civ. Proc. 66; Honeywell v. Shaffer, 18 N. Y. Civ. Proc. 336; Jensen v. Fricke, 133 Ill. 171; Cochrane v. Parker, 12 Col. App. 169.]

There being no constitutional objection to the rules of the circuit court and no evidence of their intrinsic unfairness, favoritism or injustice under the facts stated in the record and reported by the commissioner, it follows that there is no error in the rule of the court declining to specially set for trial the case of relator against the companies contrary to the order in which it would be triable under the rules as amended.

IV.

We have disposed of this question as to the validity of the rules of the court on the merits and without discussing its reviewability by a & . . J f writ o± mandamus issuing out of this court. We have done this on account of the importance to the court and litigants of a speedy determination of the legality of the rules for the exercise of the machinery of the court. We do not mean to concede by the course taken in this case that a precedent shall be established for the use of our writ of mandamus in such cases. That writ is never available to compel a court to render a particular judgment or ruling on a matter resting within its judicial discretion. The officer vested with a judicial discretion may be compelled to exercise it, but the manner of its exercise or decision to- be made in so doing cannot be controlled by a writ of mandamus. For that would wrest from him the very official discretion confided by law. [State ex rel. v. Jones, 155 Mo. l. c. 576.] Nor is there any intimation to the contrary in any of the cases cited by the learned counsel for the relator in the present proceeding.

For the reasons stated in the preceding paragraphs of this opinion our alternative writ of man'damus is quashed and the application for a peremptory writ is denied.

Graves and Walker, JJ., concur; Woodson, G. J., and Faris, Blair and Rev elle, JJ., concur. inresult.