Arlington Hotel Co. v. Tanner

Hart, J., (after stating the facts). It is first contended by counsel for defendant that under the undisputed evidence, Bailey, at the time of the shooting, was not engaged in any act within the scope of his employment, and that, 'therefore, the hotel company was not liable. In support of their position they cite the following cases, and others of like character: St. Louis, I. M. & S. Ry. Co. v. Grant, 75 Ark. 579; Peter Henderson & Co. v. Diaz, 77 Ark. 606; Sweden v. Atkinson Improvement Co., 93 Ark. 397. In none of the cases, however, was it alleged or proved that the servant for whose negligence the master was sought to be held liable had become mentally incompetent, and the question of the negligence of the master in retaining a mentally incompetent servant wa*s not made an issue. In Labatt on Master and Servant (2 ed.), vol. 3, § 1079, the author states: “The rule established by the cases to be reviewed in this chapter may be stated in formal terms as follows: The hiring or retention of a servant whose unfitness for his duties, whether it arises from his want of skill, his physical and mental qualities, or his bad habits, is known, actually or constructively, to the master, is culpable negligence, for which the master must respond in damages to any other servants who may suffer injury through that unfitness.” In the case of Dibari v. J. W. Bishop & Co., 199 Mass. 254, 17 L. R. A. (N. S.) 773, the court said: “In a sense, workmen are appliances. If a master knowingly employs servants who are incompetent by reason of their habits, or otherwise, he is liable for an injury occasioned to a fellow-servant by their incompetency just as he would be liable for. an injury caused by a defective machine.” In the case of Missouri, Kansas & Texas Ry. Co. v. Day, decided by the Supreme Court of Texas, and reported in 136 S. W. 435, the facts were that a “straw boss” for the railway company wilfully assaulted a laborer working under him. The evidence tended to show that the “straw boss” was drinking heavily at the time he assaulted his co-laborer; that he was addicted to the habit of drinking, and while under the influence of drink was a quarrelsome and dangerous man; that such was his general reputation, and that his reputation in this respect was notorious. The court held that there could be no difference whether the injury resulted from negligence in doing the master’s work or ''from. an assault made by a dangerous, drunken and desperate employee, if his reputation in that respect was such that the master might have foreseen such consequences. The court further held the evidence introduced made it a question for the jury to say whether the railway company was negligent in employing and retaining the straw boss in its employment, and, if so, whether the negligence was such as rendered the railroad company liable. In the case of Christian v. Columbus & Rome Ry. Co., 79 Ga. 461, the declaration alleged that the husband of the plaintiff went into the office of an agent of the railway company for the transaction of business pertaining to the agency, and was killed by the agent. The declaration further alleged that the agent was subject to a disease of the mind, and that his disease became at intervals homicidal mania, and that this fact was known to the railroad company. A demurrer was sustained to the complaint, and the Supreme Court held that inasmuch as the declaration alleged that the railroad company employed him, knowing of his infirmity, the railroad company was liable for the consequences of its agent’s act in killing the plaintiff’s husband. In general it may be said that it is the duty of the master to exercise ordinary care to provide a safe place for his servants to work, and also to. provide them with safe appliances. In the case at bar, the plaintiff was injured while in the discharge of his duties ras a servant of the hotel company. In the application of the principles of law above announced, we think the question of whether the hotel company could in any event be held liable for' the tortious acts of Bailey under the facts adduced in evidence in this case was one of fact for the jury. It is true that the plaintiff and Bailey did not work in the same department, and that their work had no necessary relation; but it was shown by the plaintiff that Bailey had occasion to go through the hotel kitchen almost daily to procure supplies for his own work, and that he was accustomed to do so. This necessarily brought him in contact with the plaintiff to a certain extent, because the plaintiff was at all times at work in the kitchen. If it was further shown by the plaintiff that Bailey had become dangerous by reason of insanity, or was likely to become so, and that the hotel company knew this fact, or,, by the exercise of ordinary care, might have known it, a jury would be warranted in finding that the hotel company might have reasonably foreseen that Bailey was likely to injure any of its employees with .whom the duties of his own work brought him in contact, and it would have been the duty of the hotel company to have discharged Bailey, and upon its failure to do so it would become- liable for his tortious acts. This brings us to a consideration of the question of whether there was any testimony of a substantial character tending t.o show that Bailey had become dangerous, or was likely to become so, and, if such was the fact, whether or not the officers of the hotel company had knowledge of that fact or, in the exercise of ordinary care, should have known it. Many witnesses were introduced who testified that for several months prior to the shooting, Bailey’s mental faculties had become impaired, and that he was accustomed to mutter and talk to himself. They further stated that he had delusions in certain respects, but all of them testified that he/was considered inoffensive and harmless. It is true one of them testified that about two months before the shooting Bailey became very angry in an argument -with him about his coat, but this witness stated that Bailey made no attempt to harm him and that he never knew of him assaulting, or trying to kill, anybody. He further stated that Bailey was regarded as a harmless and inoffensive man. Moreover, it is not shown that the officers of. the hotel company had any knowledge of this fact. The plaintiff himself testified that the manager of the hotel company, about five weeks after he had received the injury, told him that he was sorry he had been injured, and said that he should have gotten rid of Bailey because he knew he was crazy. This testimony was too remote to be a part of the res gestae, and was incompetent and should not have been admitted over the objections of the defendant. Little Rock Traction & Elec. Co. v. Nelson, 66 Ark. 494. It is. true physicians, in answer to a hypothetical question asked them, in which was described the mental peculiarities and actions of appellee, as set out in our statement of facts, gave it as their opinion that he was partly insane and was likely to become violent'. Their testimony further shows, however, that their reason for stating that he might become violent was because all insane people' may become violent. The burden was upon plaintiff to show that the hotel company had retained Bailey in its service after having cause to believe, either from his general reputation or his conduct on particular occasions, known to it or its officers, that he was partially insane, and on that account likely to become dangerous to the other employees of the hotel company with whom he was thrown in contact in the discharge of his duties. St. Louis, I. M. & S. Ry. Co. v. Mogart’s Admx., 45 Ark. 318. We are of the opinion that when the whole evidence is considered in all its bearings, there was ho testimony tending to show that the officers of the hotel company knew that Bailey was dangerous, or likely to become so, unless such deduction might be drawn from the fact that he had become, to some extent, mentally unbalanced; and we do not think that the jury might have inferred that the hotel company knew that Bailey was dangerous or likely to become so from the fact, merely, that he was shown to be partially insane. See Atkinson v. Clark, 64 Pac. (Cal.) 769. It follows that the judgment must be reversed, and, because the facts seem to have been fully developed on this trial, the cause of action will be dismissed.