136 F. 306 (8th Cir. 1905), 2,102, Bowen v. Illinois Cent. R. Co.

Docket Nº:2,102.
Citation:136 F. 306
Party Name:BOWEN v. ILLINOIS CENT. R. CO.
Case Date:March 13, 1905
Court:United States Courts of Appeals, Court of Appeals for the Eighth Circuit
 
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Page 306

136 F. 306 (8th Cir. 1905)

BOWEN

v.

ILLINOIS CENT. R. CO.

No. 2,102.

United States Court of Appeals, Eighth Circuit.

March 13, 1905

Syllabus by the Court

Under section 746, Rev. Code Civ. Proc. S.D., giving to the widow of the deceased a right of action for damages against a railroad company for the killing of her husband, by reason of the neglect, carelessness, or unskillfulness of the corporation, its agents, servants, and employees, the cause of action must come strictly within the terms of the statute conferring the right, and cannot be extended to any other subject or embrace any other quality of liability.

Such loss of life must result from the negligence, carelessness, or unskillfulness of such agent and servant while engaged in and about the work assigned him by the master. Therefore, where the act complained of is the killing of plaintiff's husband by defendant's station agent while deceased was signing a receipt book for a package, it cannot be assumed that such package pertained to railroad freight matter, when the evidence showed that the wrongdoer was not only at the time and place acting as agent for an express company, as well as the railroad company, without some evidence warranting the inference that the package pertained to railroad freight, rather than express matter.

There is a marked distinction between an act done by the servant during his employment and an act done within the scope of his employment. To bind the master for an injury done by the servant, the servant must at the time be acting for the master within the scope of the duty assigned him.

The distinction between the liability of the master for the wrongful acts of the servant in the instance of the relation of carrier and passenger, or hotel keepers and proprietors of theaters and their guests, and that of the proprietor of a mere business house or railroad station, as to persons coming on the premises to transact some matter connected with its general business, pointed out.

The deceased, having called at the railroad station to inquire of the agent as to whether any demurrage would be charged on account of his failure to unload a car of coal that day, and, being assured in the negative, turned to walk out of the room, when the agent said to him, 'There is a package here for you,' and handed to him, through the ticket window, a small book to be signed. Just as deceased started to sign his name therein, the agent picked up a pistol, and without a word shot the party to death. Held, that the widow could not recover damages against the railroad company for such wanton act of killing.

This is a writ of error to review the action of the Circuit Court in directing a verdict for the defendant. After statements, by way of inducement, the gravamen of the petition is: That one Henry A. Steagald was a man of dangerous and violent character, subject to sudden fits of anger, disregardful of the persons and lives of others, and was not a fit man to have charge of the station house and depot of a common carrier, all of which was well known to the defendant; that, in disregard of its duty to the public and to one Frank Bowen, the defendant did, with knowledge of all of said facts, and the disposition of said Steagald, retain him in its employ in the position of station agent at Ben Clare, in the state of South Dakota; that on the 27th day of February, 1903, the said Frank Bowen, in the pursuit of his business with the defendant railroad company, as a common carrier, entered said station house to transact business with the defendant as common carrier, through the said agent, Steagald, respecting a car of coal shipped to said Bowen over the defendant's road to Ben Clare; that said Steagald, then and there acting as such agent and in the course of his employment, while said Bowen was in the discharge of his lawful business with the defendant, did shoot and kill the said Bowen, to the damage of the plaintiff, who is the surviving widow of the deceased, in the sum of $20,000. The answer of the defendant admitted that said Steagald was at the time in question the station agent of the defendant at said Ben Clare, and that he was authorized to transact for defendant such business as is usually and properly transacted by railroad station agents situated similar to the one at Ben Clare, but specifically denied that the said Steagald was at said time or at any other time its general managing agent, or general agent, in any character whatsoever. With the exception of admitting that the defendant was a railroad corporation organized under the laws of the state of Illinois, and that said Bowen was shot and killed by said Steagald, it denied all the other material allegations of the petition.

The evidence in the case is exceedingly brief. Earl Bowen, the son of said Frank Bowen, aged 13 years, testified that he had known said Steagald, the depot agent for the defendant at Ben Clare, for about six months prior to the 27th day of November, 1903; that on that day, in company with his father, who had an elevator and coal yard at Ben Clare, he entered the waiting room of the depot at that place; that the waiting room is separated from the depot agent's office by a partition, in which there is a door and the ticket window; that Steagald was at the open ticket window when his father asked Steagald if he would charge demurrage on a car of coal on a day like that. Steagald answered that he did not think so. Thereupon the witness and his father started to leave the depot, when Steagald called to his father and said there was a package there for him, whereupon his father turned around to the ticket window; that Steagald handed out a book about a foot square, in which his father started to write his

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name, when Steagald reached to one side, quickly jerked up a revolver, and shot his father, and then, running through the door which leads into the waiting room, again shot him, and, as the witness jumped between the door and the stove, he was shot and injured

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by Steagald. Steagald did not say anything, and went back into the office. His father died that day. On cross-examination he testified that Steagald did not tell his father what kind of a package he had there. He simply said there was a package. The plaintiff testified that, when informed by her son of the occurrence, she went immediately to the depot and found her husband dead; that Steagald and his wife were in the depot office at the ticket window; that he spoke to her, but she did not recollect what he said; that she had known Steagald since October, 1902; that Ben Clare is a small station, and Steagald was station agent for the defendant road; that Steagald did the operating business there, handled the freight business, and acted as express agent; that he received express packages and telegrams. This was all the testimony.

At the request of defendant's counsel the court instructed the jury to return a verdict for the defendant, which was accordingly done, and judgment was entered thereon for the defendant.

Joe Kirby, for plaintiff in error.

W. S. Kenyon (C. O. Bailey and J. M. Dickinson, on the brief), for defendant in error.

Before SANBORN, Circuit Judge, and PHILIPS and RINER, District Judges.

PHILIPS, District Judge, after stating the case as above, .

As the plaintiff at common law could not maintain any action against the defendant railroad company to recover damages for the killing of her husband by a person in the employ of the corporation, her right of action exists, if at all, by virtue of some statute of the state of South Dakota. The only statutory provisions touching this matter are sections 745 and 746 of the Revised Code of Civil Procedure of South Dakota, which are as follows:

'Sec. 745. If the life of any person, not in the employment of a railroad corporation, shall be lost, in this state, by reason of the negligence or carelessness of the proprietor or proprietors of any railroad, or by the unfitness, or negligence, or carelessness of...

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