Childers v. Southern Pac. Co.

• Decision Date: 20 May 1915
• Docket Number: No. 1744.,1744.
• Parties: CHILDERSv.SOUTHERN PAC. CO.
• Court: New Mexico Supreme Court

20 N.M. 366

149 P. 307

CHILDERS

v.SOUTHERN PAC. CO.

No. 1744.

Supreme Court of New Mexico.

May 20, 1915.

Syllabus by the Court.

A master is liable for the wanton or malicious acts of his servant, if they were committed while the servant was acting in the execution of his authority and within the scope of his employment.

In general terms it may be said that an act is within the “course of employment” if (1) it be something fairly and naturally incident to the business, and if (2) it be done while the servant was engaged upon the master's business and be done, although mistakenly or illadvisedly, with a view to further the master's interest, or from some impulse or emotion which naturally grew out of or was incident to the attempt to perform the master's business, and did not arise wholly from some external, independent, and personal motive on the part of the servant to do the act upon his own account.

The master is liable for the act of his servant in assaulting and arresting one whom he erroneously believed to be a trespasser, where he had the authority to eject trespassers from the master's premises, and to arrest them therefor.

The form and substance of a requested instruction must be such that the court may properly charge the jury in the terms of the request, without qualification or modification.

In order to obtain a review in the appellate court of instructions given by the trial of its own motion, the complaining party must, by proper exceptions or objections, point out the alleged vice in the objectionable instruction, so that the lower court will have the opportunity to correct the same, and where this is not done the appellate court will not consider the alleged error.

The mere fact that a servant is also a police officer is no defense to an act performed within the scope of his employment for the master, and in the line of his duty to the master.

Appeal from District Court, Luna County; Neblett, Judge.

Action by John T. Childers against the Southern Pacific Company. From judgment for plaintiff, defendant appeals. Affirmed.

The form and substance of a requested instruction must be such that the court may properly charge the jury in the terms of the request, without qualification or modification.

This is a suit brought by John T. Childers, appellee herein, against the Southern Pacific Company, appellant herein, in the district court of Luna county, to recover damages for an alleged assault and for an alleged wrongful arrest by a watchman of said company on the night of May 12 and 13, 1913, upon the right of way, depot, and station grounds of the said railroad company at the town of Deming. The defendant company demurred to the complaint for insufficiency, and for other reasons, specifying the several grounds of demurrer, which demurrers were overruled by the court, and the defendant company answered denying generally and specifically all the material allegations of the complaint relating to the alleged assault and to the alleged wrongful arrest. A trial was had before the court and a jury, and verdict returned in favor of plaintiff for damages in the sum of $1,500. Motion for new trial was filed by defendant company upon various grounds, which was denied by the court and judgment entered on the verdict. From such judgment, appellant prosecutes this appeal.

The facts in the case, as disclosed by the evidence, supporting the verdict of the jury, may be briefly stated as follows: At the time in question, appellant owned and operated a railroad, which traversed the town of Deming from east to west. To the north of the main track was appellant's depot, and immediately south of the track, and opposite the depot, were grounds occupied by appellant. South of these ground lay the business section of Deming. Silver avenue extended south from said grounds, through said business section, to the courthouse. Appellant had in its employ, as a night watch, one L. F. Salisbury, commonly known as “Casey Jones,” whose authority and duty was, as stated in the complaint, “by reason of his employment, to watch and guard the yards, grounds, buildings, trains, and other property of said defendant, at said Deming, to prevent depredations and trespasses thereon, to prevent trespassers from coming or remaining upon or in said yards, grounds, buildings, and trains, to prevent any and all persons from boarding said trains for the purpose of stealing rides thereon, and to remove such persons so boarding, or attempting to board such trains, and to apprehend or cause the apprehension and arrest of, all persons who he believed had committed or attempted to commit any such depredations or trespasses, or had boarded, or attempted to board, such trains for the aforesaid purpose.” Appellant also had in its employ one Adams, who was a “special agent” or “riding officer,” among whose duties it was “to see that the watchmen are on the job,” and to report watchmen who were not attending to their duties. At about 1 o'clock on the night of May 12 and 13, 1913, appellee started to go from the business section of Deming, across appellant's grounds and track, to its depot; his purpose being to see one Baze, from whom he had engaged a room, and to learn its number. As appellee approached the track, he found a train standing between him and his destination, and as he stood there, on appellant's grounds, Salisbury, the watchman, accosted him, accused him of being about to catch the train, and, on appellee's denial of such intent, commenced an assault upon him. Appellee was knocked down by the first blow, and made no resistance to the assault. After beating appellee for some time, the watchman conducted him around the engine, and to the station platform, on the north side of the track. Here the beating was continued. Adams, the special agent, called upon Salisbury to “give it to him,” or “swat him again”; but, through the interference of Fred Jack, an immigration inspector, the beating was then discontinued. Salisbury then procured appellee's arrest by Dan Hathaway, the jailor of Luna county, and John Warren, city night watch. Appellee was taken to jail, where he remained until the morning of May 14th (two nights and one day), when he was discharged. Appellee was not attempting or intending to board the train, or to molest any property. Salisbury had never seen appellee before, and had no personal grudge against him.

Not all of the foregoing facts are undisputed; but there is evidence in support of all of them, justifying the jury in finding the facts as here stated.

Francis M. Hartman and J. C. Forrest, both of Tucson, Ariz., and R. F. Hamilton, of Deming, for appellant.

Ely & Watson, of Deming, for appellee.

ROBERTS, C. J. (after stating the facts as above).

Counsel for appellant have not indicated clearly the points they intended to raise by their assignments of error 1, 2, and 3, discussed under their first proposition; but from a reading of the assignments in question, and the authorities cited in support thereof, we shall assume, as did counsel for appellee, that the following questions are involved:

(1) Was the watchman acting within the scope of his employment, or in pursuance of his own ends?

(2) Is appellant liable for an assault by its servant upon one whom he erroneously believes to be a trespasser?

These questions were raised in the court below by a demurrer to the complaint, objection to the introduction of any evidence, and by motion for a directed verdict. We will discuss them in the order stated.

[1] 1. The nature and extent of the watchman's authority and duties are set forth at length and with particularity in the complaint, in the following language:

“(3) That, at the time and place aforesaid, said defendant had in its employ as a night watchman one L. F. Salisbury; and that it was the duty of said Salisbury, by reason of his said employment, to watch and guard the yards, grounds, buildings, trains, and other property of said defendant, at said Deming, to prevent depredations and trespasses thereon, to prevent trespassers from coming or remaining upon or in said yards, grounds, buildings, and trains, to prevent any and all persons from boarding said trains for the purpose of stealing rides...