Section 19 Missouri Cases Holding Vicarious Liability Not Established

• Library: Employer-Employee Law 2008

In Smothers v. Welch & Co. House Furnishing Co., 274 S.W. 678, 679
(Mo. 1925), the Supreme Court of Missouri affirmed a judgment for the defendant because its employee, who sexually assaulted the plaintiff, “was not acting within the scope of his employment and in furtherance of his master’s business and to accomplish the purposes of his master, but, on the contrary, was pursuing his own ends for his own purposes.” The employee had attacked the plaintiff while showing her some furniture in the furniture store where he was employed. Showing furniture was within the scope of employment; trying to rape a customer while doing so was not.

In Priest v. F.W. Woolworth Five & Ten Cent Store, 62 S.W.2d 926
(Mo. App. S.D. 1933), the court followed Smothers. It reversed a judgment for the plaintiff because a store clerk’s assault on her, bending her over a counter “in an act of clowning or buffoonery” while she was a customer at the defendant’s store and he was working there, had nothing to do with his employment. “He was performing no duty for his employer[, but] . . . was giving vent to his own whim or pleasure of the moment which had nothing whatever to do with his employment.” Priest, 62 S.W.2d at 928. The court held that there was no jury question, and the trial court should have directed a verdict for the employer. The plaintiff had committed no act requiring the employee to use violence toward her but “was simply a customer with a perfect right to be there.” Id.

In Porter v. Thompson, 206 S.W.2d 509 (Mo. 1947), the defendant’s employee, a railroad night watchman, shot the plaintiff’s husband in a restaurant out of jealousy. The shooting occurred during the watchman’s working hours, but he had no business reason for being in the restaurant. The case before the Supreme Court of Missouri focused on negligent employment of the watchman, but the Court also recited the principles of respondeat superior and stated without further discussion: “[I]t is quite clear that plaintiff did not make a submissible case under the rule of respondeat superior.” Porter,
206 S.W.2d at 512. This conclusion was supported by the fact that the conduct was removed in place (but not time) from work duties, completely unrelated to any intention of serving the employer, and had a distinctly personal motive, although the Court did not discuss its reasoning in any detail.

In Wellman v. Pacer Oil Co., 504 S.W.2d 55 (Mo. banc 1973), the Supreme Court of Missouri held that in some...