Caret v. Hamburg-Am. Packet Co.

• Decision Date: 21 March 1905
• Citation: 72 N.J.L. 56,60 A. 179
• Parties: CARET v. HAMBURG-AMERICAN PACKET CO.
• Court: New Jersey Supreme Court

60 A. 179

72 N.J.L. 56

CARET

v. HAMBURG-AMERICAN PACKET CO.

Supreme Court of New Jersey.

March 21, 1905.

(Syllabus by the Court.)

Error to Circuit Court, Hudson County.

Action by Daniel Carey against the Hamburg-American Packet Company. Judgment for plaintiff, and defendant brings error. Affirmed.

Argued November term, 1904, before GUMMERE, C. J., and GARRETSON and REED, JJ.

Russ & Heppenheimer and Randolph Perkins, for plaintiff in error. James F. Minturn, for defendant in error.

GARRETSON, J. This was an action by the plaintiff to recover damages for an assault and battery committed upon him by the servants of the defendant corporation. It appeared on the trial, on the part of the plaintiff, that he went on what was known as the "Hamburg Dock" to see a friend of his, and give him a pair of shoes; that he found him loading a truck; that with him was another man, named Marooney; that he saw the watchman come down the dock, and he had a club in his hand; that he took hold of Marooney, and drew his club, and, with another watchman, was fetching him out of the dock; that the plaintiff said to Marooney: "Why don't you come out of the dock, and don't interfere with these men? Come off the dock, can't you?" Then they struck Marooney, and the plaintiff said, "Don't kill the man with the club," when they turned on the plaintiff and struck him, and he backed off the dock. The evidence on the part of the plaintiff, while proving an assault and battery by the men called "watchmen," and perhaps proving that they were in the employ of the defendant, does not show that they were in the performance of their duty to the company in committing the assault. The evidence rather establishes the fact that these watchmen committed an unprovoked assault upon one rightfully on the dock, and for which the defendant would not be liable. At the close of the plaintiff's case a motion for nonsuit was made upon the ground that the defendant company had not been connected with this assault, and, even if it was admitted that these men were in their employ, there was no evidence to show that their actions were within the scope of their employment; that there was no proof to show that the defendant was the owner, operator, or possessor of this dock; that there was no evidence to show that either of the parties who committed this assault was in the employ of the company, and, if they were in the employ of the defendant company, there is no evidence to show that they acted within...