Norfolk &. W. Ry. Co v. Haun

• Decision Date: 11 September 1936
• Citation: 187 S.E. 481
• Court: Virginia Supreme Court
• Parties: NORFOLK &. W. RY. CO. v. HAUN.

187 S.E. 481

NORFOLK &. W. RY. CO.

v.HAUN.

Supreme Court of Appeals of Virginia.

Sept. 11, 1936.

Error to Circuit Court, Tazewell County.

Action by C. Frank Haun against the Norfolk & Western Railway Company. To review a judgment for plaintiff, defendant brings error.

Reversed and rendered.

Argued before CAMPBELL, C. J., and HOLT, HUDGINS, GREGORY, BROWNING, and EGGLESTON, JJ.

Greever & Gillespie, of Tazewell, and Crockett & Tutwiler, of Welch, W. Va., for plaintiff in error.

Lilly & Lilly, of Charleston, W. Va., and J. Powell Royall, of Tazewell, for defendant in error.

HUDGINS, Justice.

E. G. Harman and D. W. Franklin, on motion of the Norfolk & Western Railway Company, were duly appointed, by different courts, special police officers under the provision of Code, § 3944, as amended by Acts 1930, c. 353. They received no compensation from the commonwealth, but were paid by the Norfolk & Western Railway Company. These officers were notified that coal, in interstate transit, had been repeatedly stolen from cars temporarily on a sidetrack in the Norfolk & Western Railway yards at Flat Top, Tazewell county, Va. Their superior officers instructed them to make an investigation of these complaints. They requested R. M. Mathews, regular police officer of Tazewell county, to assist them in the criminal investigation.

The three officers on the night of January 9, 1935, while hidden in defendant's yard, saw two men throwing coal off a car temporarily standing on the siding. Later the two special officers saw two men carry the coal from the side of the track, where they had thrown it, to the side of the county highway, on or just off the railway company's right of way. Shortly thereafter, and while two men were loading the coal into an automobile, the two special officers ran up within 30 feet of them, turned on a flashlight and attempted to arrest the thieves. One ran in one direction, and the other in another. One officer pursued one, the other officer the other. Two shots were fired, one by each officer. The man, L. B. Wilson, whom Franklin pursued, submitted to arrest and was brought back to the automobile. C. Frank Haun, the other thief, was hit in the back and badly wounded by the shot from Harman's pistol. He was taken by the officer, in his own car, loaded with the stolen coal, to a hospital located in Bluefield, W. Va., and given the proper medical aid. Wilson was taken to the home of Mr. Pittman, special police agent in charge of the Pocahontas division of the railway company. Wilson, after signing a written account of the theft of the coal and the shooting of his brother-in-law, C. Frank Haun, was released.

For several days Haun's life was in serious jeopardy from the bullet wound, but he eventually recovered and instituted this action, alleging that at the time he was shot Harman was acting as a servant for defendant company. The trial court entered judgment for $4,000 on the jury's verdict, to which judgment defendant obtained this writ of error.

The trial court adopted plaintiff's view of the case, and held that whether Harman was acting within the scope of his employment, as agent for defendant, or as a police officer of the commonwealth at the time of the shooting, was a question of fact to be determined by the jury.

The general rule is that, in the absence of statute, a private person or corporation is not responsible for the acts of a special police officer appointed by public authority, but employed and paid by the private person or corporation, when the acts complained of are performed in carrying out his duty as a public officer. 39 C.J. 1273; 35 A.L.R. 681.

The statute (Code, section 3944, as amended by Acts 1930, c. 353) clothes two classes of persons with limited police authority. The latter part of the section makes certain employees of common carriers, such as conductors, motormen, operators of motorbusses, station and depot agents, when on duty, conservators of the peace, with the same power to make arrests that justices of the peace have. These powers are conferred upon the named employees by virtue of the duties assigned them by the employer. No examination or confirmation of appointment of these employees is made by public authority. The duties they are employed to perform are sufficient, under the statute, to clothe them with the power stated. This court, dealing with this class of employees of common carriers, in Southern R. Co. v. Grubbs, 115 Va. 876, 884, 80 S.E. 749, 752, said: "The effect of these instructions was to make the mere claim of the conductor that he was acting as a conservator of the peace conclusive of the case, as a presumption of law, without regard to whether the facts and circumstances of the case justified his course of conduct. In other words, the contention is that, being a conservator of the peace he is thereby taken out of the control of the company, and out of the sphere of the company's responsibility for his acts, provided he chooses to assume to act under the guise of a conservator of the peace, without any reference to the question whether or not he was, in good faith, justified in assuming that role.

"The functions of a conductor are primarily as a representative of a railroad company, and his duty to the passenger is the same as that of the company. His duties as a conservator of the peace are merely incidental to his office of conductor. Neither he nor his company can make use of his incidental functions as a conservator of the peace as a pretext to shield themselves from liability for his wrongful and oppressive acts as conductor. The instructions under consideration would afford railroad companies a ready means of escape from all responsibility to passengers who were wrongfully maltreated by conductors. It is a question for the jury to determine, upon all the facts and circumstances of the case, whether or not the conductor was, in fact and in good faith, acting in the capacity of a conservator of the peace, and not in his capacity of conductor; and if it is relied on to shield the company from liability, the company must show the necessity and good faith of the transaction. It follows from what has been said that these two instructions were properly refused."

The same section authorized circuit and corporation courts, on motion of the proper officers of a railway company, to approve the appointment of designated persons as police officers, "who shall have authority in all cases in which the rights of such railroad company are involved, to exercise within the State all powers which can be lawfully exercised by any constableor police officer for the preservation of the peace, the arrest of offenders and disorderly persons, and for the enforcement of laws against crimes * * * but, any court giving such consent may at any time revoke it."

The police power given these special police agents is not confined to any political subdivision of the state, but is state-wide, and is equal to that of any other police officer, when, and only when, the rights of the railroad are involved. This court, in dealing with this class of officers, in Norfolk & Western R. Co. v. Perdue, 117 Va. 111, 112, 83 S.E. 1058, 1059, said: "The defendants, on their part, maintained that Horgan was a police agent, appointed under the provisions of the Code of Virginia, and was acting in that capacity, and not as the agent of the railway company, when the arrest was made. Without going into this aspect of the case in any detail, we content ourselves with saying that the trial court maintained the contention of the defendants and gave to the jury an instruction as follows:

" 'The court instructs the jury that if they believe from the evidence that Richard A. Horgan was duly appointed a special police agent and qualified as such, that then, although it was upon the request of the Norfolk & Western Railway Company he was so appointed and qualified, and although he was paid by the Baldwin-Feltz Detective Agency for his services in acting as police agent, and in turn the Baldwin-Feltz Detective Agency was paid for his services by the Norfolk & Western Railway Company, still the Norfolk & Western Railway Company is in no way legally responsible for the acts of the said Richard A. Horgan when acting in the capacity of a police agent; the court instructing the jury that a police agent is as much an officer of the state as any other officer authorized by law to make arrests, and that if the arrest was made in this capacity by him the Norfolk & Western Railway Company is in no way responsible for his act.'

"The facts upon which this instruction is predicated were clearly established, and indeed were not controverted, so that the defendant in error, plaintiff in the court below, could not have recovered upon the case which he had up to that point presented."

This is not an action against the master for acts of its servant in making or caus ing the false arrest or...