{
  "id": 1364166,
  "name": "Missouri Pacific Railroad Company v. Gregory",
  "name_abbreviation": "Missouri Pacific Railroad v. Gregory",
  "decision_date": "1922-03-06",
  "docket_number": "",
  "first_page": "335",
  "last_page": "339",
  "citations": [
    {
      "type": "official",
      "cite": "152 Ark. 335"
    }
  ],
  "court": {
    "name_abbreviation": "Ark.",
    "id": 8808,
    "name": "Arkansas Supreme Court"
  },
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    "id": 34,
    "name_long": "Arkansas",
    "name": "Ark."
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    {
      "cite": "88 S. W. 582",
      "category": "reporters:state_regional",
      "reporter": "S.W.",
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    {
      "cite": "131 S. W. 971",
      "category": "reporters:state_regional",
      "reporter": "S.W.",
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      "cite": "58 Ark. 386",
      "category": "reporters:state",
      "reporter": "Ark.",
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    {
      "cite": "42 Ark. 553",
      "category": "reporters:state",
      "reporter": "Ark.",
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    {
      "cite": "148 Ark. 227",
      "category": "reporters:state",
      "reporter": "Ark.",
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        8719027
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    {
      "cite": "148 Ark. 227",
      "category": "reporters:state",
      "reporter": "Ark.",
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        8719027
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      "case_paths": [
        "/ark/148/0227-01"
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  "last_updated": "2023-07-14T18:09:00.627662+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
  },
  "casebody": {
    "judges": [],
    "parties": [
      "Missouri Pacific Railroad Company v. Gregory."
    ],
    "opinions": [
      {
        "text": "Wood, J.\nThis is an action by the appellee against the appellant for personal injuries. The appellee alleged in substance that the night operator of the appellant at its station at Kno'bel, Clay County, Arkansas, acting in the line of his employment, assaulted the appellee with a deadly weapon, to-wit, a pistol; that the appellee was lawfully on the platform of the appellant when the appellant\u2019s night operator and acting station agent, without any cause or provocation, struck the appellee with a pistol, inflicting upon him serious personal injuries; that on account of the unlawful, wrongful, wilful, and negligent act of the appellant\u2019s agent in thus assaulting the appellee and in using vile epithets and insulting language toward him, he had been actually damaged in the sum of $1,500. He prayed judgment for this sum and also for punitive damages in the sum of $1,000. The appellant denied all the material allegations of the complaint.\nThe appellee testified in substance that on November 29, 1920, he was at the depot of appellant at Knobel, Arkansas; that he was watching for appellant\u2019s train No. 18 to come in and was near the northwest door of the depot. Davis, appellant\u2019s depot agent, came out of the station and passed to appellee\u2019s right. Appellee paid no attention to what he was doing \u2014 saw that lie was at work. Appellee next noticed Davis when he ran up against the appellee. Appellee did nothing and had said nothing to Davis that night. Davis before that had said nothing to him. Davis said to appellee: \u201cWhat in the hell are you doing here?\u201d and turned around and said, \u201cGet,\u201d and struck appellee with a pistol. Davis kept saying, \u201cGet\u201d and held out the pistol. Appellee retreated, and Davis followed him fifteen or twenty feet below the south end of the depot. On the night before the occurrence appellee was at the depot talking to a fellow he knew, and Davis came in with a poker to fix the fire, and turned around to the appellee and said, \u201cHave you any business here, Gregory?\u201d and appellee replied, \u201cNothing in particular,\u201d and Davis stepped to the door and said, \u201cGet out of here.\u201d Appellee replied, \u201cWhat is the idea?\u201d and Davis said, \u201cGet out,\u201d Appellee stepped out and said, \u201cOld man, you get off the railroad premises, and I can whip you on less ground than you are standing on.\u201d Davis said nothing but shut the door and went-back. Appellee did nothing to cause the assault. Appellee occasionally met women who came in on the train. Some of them were nice women. There was other testimony corroborating the testimony of the appellee as to the manner of the assault.\nIt was shown by the testimony on behalf of the appellee that it was the duty of the station agent to maintain order, prevent trespassing in and around the station house to the best of his ability; that telegraph operators were required to prevent loafing in the office and in waiting- rooms, but not to do the policing of platforms. Night. operators are expected to protect the company\u2019s property, but are not expected to keep people off of the premises unless they are suspicious characters or chronic loafers. If brought to his attention that a man is a trespasser, it would be within the scope of his authority for the operator to order him off of the premises.\nDavis, the station agent, testified that he was the telegrapher for the appellant at Knobel on November 29, 1920. About five minutes after twelve he went out to load baggage on the train. Appellee was standing between the waiting room door and the coach. \"Witness had to go around him. Witness unloaded the baggage and had to go around the appellee again as he went back to the office. Witness struck the appellee, and appellee struck witness. Witness stated that his mind was on his business, but that he was expecting to be assaulted by the appellee on account of an occurrence the night before, and witness wheeled and struck the appellee with a pistol. The occurrence the night before was in the waiting room, where the appellee was cursing, and witness had ordered him out. Appellee went out cursing. On other occasions appellee had come to the station swearing and talking' with indecent women, and, if there were any decent women in there, they would be insulted. This got to be a frequent occurrence. The reason witness ordered appellee off the premises was because complaint was made by the passengers about his conduct.\nOn cross-examination witness stated that he made up his mind before he went out that he would run the appellee off of the ground if the appellee assaulted him. He put a pistol in his pocket to defend himself. He used it for that purpose. The reason he struck the appellee was because appellee struck him \u2014 gave witness a jab of some kind, and witness struck him. Witness did not strike the appellee out of any malice toward him. Witness was asked the following question: \u201cYou don\u2019t tell the jury you were out there beating him through any malice you had towards him, do you?\u201d Answer, \u201cNo, sir.\u201d Question: \u201cWere you in the discharge of your duty when you went out there and asked him to get out of the station house?\u201d Answer: \u201cYes, sir.\u201d Question: \u201cWere you in the discharge of your duty to the company when you went out there and tried to get him off the platform?\u201d Answer: \u201cYes, sir.\u201d Question: \u201cYou were just carrying out the duty of your employer, that is what you said?\u201d Answer: \u201cYes, sir,\u201d and also \u201cI had a report from one of those boys that morning about what he said. \u2019 \u2019\nThe appellant asked the court to instruct the jury to return a verdict in its favor. The court refused to so instruct the jury, to which ruling of the court the appellant duly excepted. The court, on its own motion, instructed the jury in effect as follows: \u201cThe question for your determination from the evidence in the case is whether or not at the time of the alleged assault by Davis upon Gregory he was in the line of the discharge of his duty as agent for the defendant company. Should you find from the evidence that he was in the discharge of his duty as agent of the defendant company, the further question as to whether or not the striking of the plaintiff by Davis was in his necessary self-defense and therefore justified; and if you find from a preponderance of the evidence that it was the duty of the agent Davis to keep order and to protect the company\u2019s premises from persons trespassing thereon, and to rid the premises of loafers or persons there without business with the company; and if you further find that on the night of the alleged assault the plaintiff was present in or about the depot without any business, and if you further find from the evidence that the assault of the plaintiff by the said Davis was in an effort by him to make the plaintiff leave the premises of the company, and that in doing so he was acting in the discharge of his duty, you will find for the plaintiff.\u2019\u2019\nThe court further instructed the jury that if the trouble between the plaintiff and Davis was due to, and on account of, a previous difficulty between them and not on account of or connected with the duties required of Davis at the time of the assault, then plaintiff cannot recover and you should find for the defendant.\nThe jury returned a verdict in favor of the appellee in the sum of $200, and from a judgment in that sum in favor of the appellee is this appeal.\nThe only contention of the appellant is that the court erred in refusing to grant its prayer for a peremptory instruction. In American Ry. Express Co. v. Mackley, 148 Ark. 227-232, after citing many cases of this court dealing with the liability of the master for the unauthorized tort of the servant committed during the course of his employment, we said: \u201cThe doctrine of all these cases is that the test of the master\u2019s liability is not whether a given act is done during the existence of the servant\u2019s employment, but whether it was committed in the prosecution of the master\u2019s business.\u201d See also American Ry. Express Co. v. Davis, ante p. 258.\nUnder the evidence it was an issue for the jury as to whether or not the assault upon the appellee was committed by the appellant\u2019s agent while in the prosecution of appellant\u2019s business. This issue was submitted to the jury under correct declarations of law. Therefore, there was no error in the ruling of the court in refusing to grant the appellant\u2019s prayer for peremptory instruction.\nThe judgment is affirmed.",
        "type": "majority",
        "author": "Wood, J."
      }
    ],
    "attorneys": [
      "Gordon Frierson, for appellant.",
      "J. N. Moore, for appellee."
    ],
    "corrections": "",
    "head_matter": "Missouri Pacific Railroad Company v. Gregory.\nOpinion delivered March 6, 1922.\nTrial \u2014 direction of verdict. \u2014 In an action against a railroad company for an assault committed by a night operator where there was evidence tending to prove that the assault was committed by defendant\u2019s agent while in the prosecution of the master\u2019s business, it was not error to refuse to direct a verdict for the defendant.\nAppeal from Clay Circuit Court, Western District; R. II. Dudley, Judge;\naffirmed.\nGordon Frierson, for appellant.\nDavis, the servant, was not acting for or on behalf of the appellant in making the assault upon appellee, but was acting either in what he conceived to be self-defense, or from motives of personal anger toward appellee. In neither case was the appellant liable. Americcm Ry. Exp. Go. v. Machley, 148 Ark. 227.\nJ. N. Moore, for appellee.\nThe assault was committed by the servant of appellant acting in the line of his duty, as testified by him, and appellant is liable therefor. 42 Ark. 553; 58 Ark. 386; 131 S. W. 971; 88 S. W. 582."
  },
  "file_name": "0335-01",
  "first_page_order": 359,
  "last_page_order": 363
}