The Chicago City Ry. Co. v. Mcmahon

• Decision Date: 21 June 1882
• Citation: 1882 WL 10346,103 Ill. 485,42 Am.Rep. 29
• Parties: THE CHICAGO CITY RAILWAY COMPANYv.CATHARINE MCMAHON.
• Court: Illinois Supreme Court

103 Ill. 485

1882 WL 10346 (Ill.)

42 Am.Rep. 29

THE CHICAGO CITY RAILWAY COMPANY

v.CATHARINE MCMAHON.

Supreme Court of Illinois.

Filed at Ottawa Jun. 21, 1882.

APPEAL from the Appellate Court for the First District;--heard in that court on appeal from the Superior Court of Cook county; the Hon. SIDNEY SMITH, Judge, presiding.

Messrs. DUPEE & JUDAH, for the appellant:

Where an agent or servant in a particular business goes outside of his employment, or beyond his authority, in discharging his duties, the master will not be liable for his acts. He is liable only for acts done within the scope of his authority. Oxford v. Peters, 28 Ill. 434; Pritchard v. Keefer, 53 Id. 117; Green v. Town of Woodbury, 48 Vt. 5; Johnson v. Barber, 5 Gilm. 430; Tulter v. Voght, 13 Ill. 285; McManus v. Crickett, 1 East, 106; Halty v. Markel, 44 Ill. 228; Chicago, Burlington and Quincy R. R. Co. v. Casey, 9 Bradw. 638; Clark v. Metropolitan Bank, 3 Duer, 241; Stanley v. Chamberlain, 39 N. J. 565; Gokey v. Knapp, 44 Iowa, 32; Sherman & Redfield on Negligence, sec. 63.

Mr. JOHN LYLE KING, for the appellee:

The testimony of Taylor to the attempt to bribe him was clearly admissible on two grounds: first, that it was an admission by conduct; and second, it was an admission by conduct of an accredited representative of the company in the course of his duty to or in the performance of an authorized service for the company.

Aside from that class of cases where the acts and conduct of persons are admissible against them, under the maxim in odium spoliatoris, (2 Wharton on Evidence, sec. 1265,) there is direct authority in point as to the competency of this evidence. Moriarty v. London, Chatham and Dover Ry. Co.L. R. 5 Q. B. 314; Annesley v. Earl of Aglesea, 17 How. State Trials, 1139; Green v. Town of Woodbury, 48 Vt. 5.

A corporation can act only through the instrumentality of its officers, agents and employés, and if the act of such agent or servant be even willful, wrongful or unlawful, if performed or done in the course of his duty, still it is the act of the corporation, or rather of those representing it, for which the corporation is itself accountable. St. Louis, Alton and Chicago R. R. Co. v. Dalby, 19 Ill. 353; Illinois Central R. R. Co. v. Read, 37 Id. 484; Toledo, Wabash and Western Ry. Co. v. Harmon, 47 Id. 298; Chicago, Burlington and Quincy R. R. Co. v. Dickson, 63 Id. 151; Northwestern R. R. Co. v. Hock, 66 Id. 238; Chicago, Burlington and Quincy R. R. Co. v. Sykes, 96 Id. 162.

Mr. JUSTICE WALKER delivered the opinion of the Court:

Appellee entered a street car of appellant through mistake. On finding she had boarded the wrong car, she requested the conductor to stop and permit her to leave it. It is claimed he refused, and in attempting to descend from the car while in motion she was injured. She brought an action of case, alleging negligence, and that she was pushed off by the conductor. Three trials were had. The first resulted in favor of plaintiff, but the verdict was set aside. The second ended by the jury failing to agree, and being discharged. The third resulted in a verdict and judgment for $1500 in favor of plaintiff. A motion for a new trial was duly entered, but was overruled by the court. The case was removed to the Appellate Court for the First District, where the judgment was affirmed, and the defendant appeals to this court, and assigns error on the record.

The jury and Appellate Court having settled the facts, questions of law only are urged for a reversal.

It is alleged for error that the court permitted a witness to testify that a clerk in the employment of the company offered him $300, either to prevent him from appearing as a witness against the company, or to influence the evidence of the witness. It is insisted that this evidence was not a part of the res gestæ, and for that reason was not admissible. In answer it may be said, many things are admissible that are no part of the res gestæ, such as admissions of the parties, and all efforts by either to destroy, fabricate or suppress evidence. Such is the recognized doctrine of the courts. The rule relating to res gestæ did not, therefore, prohibit the introduction of this evidence.

It is believed to be a rule never questioned, that it may be shown that a party has destroyed or suppressed material evidence, or has fabricated such evidence, because it is in the nature of and implies an admission that he has no right to recover if the case was tried on the evidence in the case as it exists,--that it is not sufficient to recover unless aided by suppressing evidence, or the fabrication of more evidence. It follows that all efforts to suborn witnesses, made by a party, or his authorized agent, are for these reasons proper to be shown.

But a more difficult question is presented in this case, and it is, whether the relation of the person offering the bribe to the witness was such to the company that it was responsible for his acts in the matter. Was the act, although unauthorized and unsanctioned by the company, so far within the scope of his employment as to render his acts the same as those of the company? The agent who approached the witness was a clerk in the office of the superintendent of the company. He testified that it was the business of the clerk, in case of an accident, to take the statements of parties and witnesses to it, and that he attended to the business of looking up witnesses for cases in court; to take the statement of parties to the circumstances of the accident; when an accident occurred to investigate and ascertain all h...