Chicago & NW Ry. Co. v. McKenna

• Decision Date: 26 November 1934
• Docket Number: No. 9917.,9917.
• Parties: CHICAGO & N. W. RY. CO. et al. v. McKENNA.
• Court: U.S. Court of Appeals — Eighth Circuit

74 F.2d 155 (1934)

CHICAGO & N. W. RY. CO. et al. v. McKENNA.

No. 9917.

Circuit Court of Appeals, Eighth Circuit.

November 26, 1934.

Wymer Dressler, of Omaha, Neb. (Robert D. Neely and Hugo J. Lutz, both of Omaha, Neb., and Samuel H. Cady and William T. Faricy, both of Chicago, Ill., on the brief), for appellants.

Wayne E. Sawtell and William C. Dorsey, both of Omaha, Neb., for appellee.

Before STONE and GARDNER, Circuit Judges, and JOYCE, District Judge.

JOYCE, District Judge.

This is an action for damages for assault and battery alleged to have been committed by appellant Barrett on appellee. Verdict and judgment in the amount of $500 were in favor of appellee and against both appellants. The appeal is based upon a failure to direct a verdict, error in the exclusion of evidence, and the giving of certain instructions and the refusal of others.

On April 25, 1931, the appellant Barrett was employed by the appellant railway company as a watchman guarding carloads of wheat. Barrett testified that he apprehended the appellee stealing some wheat from a car in the railroad yards at Omaha, Neb. Appellee was shot by Barrett while the latter was attempting his arrest. Barrett claims he shot in self-defense in repelling appellee's attack upon him with a knife. According to appellee's testimony, Barrett made a wanton and unprovoked attack upon him.

I. The attack upon the sufficiency of the evidence is not well founded. There is no question that the evidence presented a square conflict which it was the province of the jury to resolve by its verdict.

II. Barrett had a special police officer's badge from the city authorities of Omaha. The railway company asserts immunity from liability for the acts of Barrett upon the same theory as has been held to exempt municipal corporations from liability for the acts of peace officers, because of the following statutes:

"All railway companies and common carriers shall furnish protection against waste or theft of all shipments of freight in carload lots within this state, and shall employ and detail such number of watchmen as the railway commission may deem necessary to carry out the provisions of this section." Section 74-527, Compiled Statutes of Nebraska 1929.

"The Nebraska state railway commission shall have power, either on its own motion or on complaint being made, to determine whether such watchmen are needed at any particular place and the number thereof, and to render such decision and enter such order with reference thereto, and to make such orders, rules and regulations governing the duties and conduct of such watchmen, as to the commission shall seem reasonable or necessary." Section 74-528, Compiled Statutes of Nebraska 1929.

While it is clear that section 74-527 requires railway companies to furnish protection against waste and theft of carload shipments and to employ watchmen for such purpose, the record does not disclose that the appellant railway company has brought itself within the provisions of section 74-528. No authority to hire watchmen has ever been given it by the Railway Commission of Nebraska, or has other action been taken by the Railway Commission looking toward such end. In the absence of such action the general rule of liability of the master for the acts of the servant for torts committed within the scope and course of employment must apply. Kusnir v. Pressed Steel Car Co. (D. C.) 201 F. 146, and cases cited in note 10 A. L. R. 1088-1090.

The duty to protect shipments from waste or theft is upon the railway, irrespective of the statutes, the main effect of the statutes being to clothe the watchman appointed for that purpose by the railroad company with certain protective police powers which he would not otherwise possess as a mere employee of the company. We fail to see that this grant of authority to the watchman transforms in any way his relation to the company as an employee. His position is not unlike that of similarly commissioned watchmen at grade crossings or other points where the operation of the railroad may endanger the public. Obviously, such crossing watchmen are nothing but the employees of the company, although their employment is compelled by law. It could hardly be contended that a crossing watchman ceased to be an employee of the railway company in making an arrest under a law empowering such watchmen to arrest persons refusing to heed his signals. It is a common practice, for example, to appoint private watchmen who are employed exclusively by agencies or individuals to protect property and who are commissioned by local police authorities so that they may have proper authority to effectively function. It is true that they are a particular kind of police officer, but it would be strange to be told that such watchmen in the performance of the only duties they are privately employed to perform are purely public officers with no responsibilities for their acts upon their employers. The cases cited by appellants in support of their position on this point are not analogous to this case. Municipalities have the dual capacity of sovereigns and private individuals, depending upon the act involved. In affording police and fire protection, municipalities act in their sovereign or governmental capacity and not in their private capacity. See the rule as set forth in Dillon on Municipal Corporations (5th Ed.), vol. 4, page 2879 et seq. The reason the municipality escapes liability is that, as an employer of policemen, it is acting as a sovereign or governmental unit. This cannot be true of a railway company, and we think this point must be resolved against appellants.

III. Appellants offered to show by Barrett "that he was in fear of his life and safety as a result of the assault plaintiff was making upon him with a knife and that is the reason that he shot in defense of his life and safety." This offer was denied and objections to questions along a similar line were sustained, to which exceptions were preserved. The admissibility of testimony of a party as to his intent or motive depends upon whether intent or motive is a fact permissible to be proved under the substantive law involved in the case. Wigmore on Evidence (2d Ed.) § 581, in support of this principle, initiates his discussion of the matter with the following language:

"Under the influence of some obscure suggestion, not easily traceable, the view has been often urged upon courts that a person — especially a party — should be disqualified from testifying to his own intent or motive, even where that intent or motive is material to be investigated."

The substantive law is contained in Instruction No. 6:

"You are instructed that if the defendant Barrett reasonably believed under the circumstances that he was in danger of serious bodily harm or death from the alleged attempt of plaintiff to assault him with a knife when the defendant Barrett was attempting to arrest plaintiff, then I charge you that Barrett had the right to use whatever force was necessary to defend himself against such threatened injury, and neither he nor his employer, the Railway Company, would be liable to plaintiff on account of the exercise of such right."

By this instruction the belief of Barrett was made an issue of substantive right. Exclusion of the offered testimony was error. In Noonan v. Luther, 206 N. Y. 105, 99 N. E. 178, 179, 41 L. R. A. (N. S.) 761, Ann. Cas. 1914A, 1038, an assault and battery case where a discharged employee and her employer became engaged in a controversy during which she claimed she was assaulted without provocation, he that her behavior was so disorderly that he removed her from the hotel premises without unnecessary force, an objection was sustained to a question directed to what his intention was regarding the use of only necessary force for her removal. The New York Court of Appeals held this to be error and said:

"That the evidence was not only material, but that the question of the defendant's intent was of vital importance, not on the amount of damages alone, but on the plaintiff's right of action. * * * Therefore his intent in using force, which he conceded he...