Clark v. Bland, (No. 97.)

• Decision Date: 23 March 1921
• Docket Number: (No. 97.)
• Parties: CLARK. v. BLAND et al.
• Court: North Carolina Supreme Court

106 S.E. 491

CLARK.
v.
BLAND et al.

(No. 97.)

Supreme Court of North Carolina.

March 23, 1921.

Appeal from Superior Court, Halifax County; W. A. Devin, Judge.

Action by H. N. Clark against H. G. Bland and others. Judgment for plaintiff, and certain defendants appeal. No error.

The action is to recover damages for. an unlawful and wrongful assault and battery on plaintiff by defendant H. G. Bland, and in which plaintiff seeks to hold defendant company liable by reason of the fact that plaintiff was a passenger of defendant road, and that Bland was an employee of the company at the time, and that the assault was made and injuries inflicted under circumstances that rendered the company, etc., responsible for his wrongful conduct. There was denial of liability on the part of the company and Director General, who insisted that Bland, while an employee, was not on duty at the time and place of the occurrence, and that these defendants were in no way liable for his acts. On issues submitted the jury rendered the following verdict:

[106 S.E. 492]

"(1) Did the defendant Bland unlawfully assault the plaintiff as alleged? Answer: Yes.

"(2) Did the defendants Atlantic Coast Line Railroad and Walker D. Hines, Director General of Railroads, through their agent, unlawfully assault the plaintiff as alleged? Answer: Yes.

"(3) What damages, if any, is the plaintiff entitled to recover therefor? Answer: $2,250."

Judgment on verdict for plaintiff, and defendants other than Bland excepted and appealed.

P. S. Spruill, of Rocky Mount, R. C. Dunn, of Enfield, and F. E. Winslow, of Pocky Mount, for appellants.

J. Crawford Biggs, of Raleigh, D. M. Clark, of Greenville, and Daniel & Daniel, for appellee.

HOKE, J. [1] It is now fully recognized that corporations may be held liable for the malicious and willful as well as negligent torts of their agents and employees, when committed in the course of and scope of their employment, and also for injuries inflicted in breach of some duty owing directly from the company to the injured person growing out of the conditions existent between them; an instance of this last rule of liability being not infrequently presented from the relationship of carrier and passenger. Cotton v. Fisheries Product Co., 177 N. C. 56-59, 97 S. E. 712, citing Cooper v. Railroad, 170 N. C. 490, 87 S. E. 322; Seward v. Railroad, 159 N. C. 241, 75 S. E. 34; Sawyer v. Railroad, 142 N. C. 1, 54 S. E. 793, 115 Am. St. Rep. 716, 9 Ann. Cas. 440; Jackson v. Telegraph Co., 139 N. C. 347, 51 S. E. 1015, 70 L. R. A. 738; Hussey v. Railroad, 98 N. C. 34, 3 S. E. 923, 2 Am. St. Rep. 312; Bank v. Graham, 100 U. S. 699, 25 L. Ed. 750; Railroad v. Quigley, 62 U. S. (21 How.) 202, 16 L. Ed. 73; Palmeri v. Railroad, 133 N. Y. 261, 30 N. E. 1001, 16 L. R. A. 136, 28 Am. St. Rep. 632; Maynard v. Fireman's Fund Insurance Co., 34 Cal. 48, 91 Am. Dec. 672.

It is on this ground that liability has been fixed on appellants in the case before us, and we find no good reason for disturbing the results of the trial. It is objected to the validity of plaintiff's recovery that the court refused defendants' motion of nonsuit, and this principally on the ground that there is no evidence of legal significance that the relationship of carrier and passenger existed between the parties at the time; second, that there was error in allowing the jury to consider the question of punitive damages. But in our opinion neither position can be maintained. On the motion to nonsuit, there was evidence on the part of plaintiff tending to show that on March 27, 1919, plaintiff went to the railroad station of defendant company at Norfleet, N. C, for the purpose of becoming a passenger on the next train of the company going towards Kelford, the next station on the road; that plaintiff went to the sta tion, which was then open for reception of passengers, about an hour before schedule time, which was 10:20 a. m.; that defendant Bland and one O. W. Parker were in the regular railroad office at the time, apparently engaged in some official work; that plaintiff inquired for an express package he was expecting, and after and while waiting for the ticket window to open, which was usually done about 15 minutes before the arrival of trains, plaintiff stepped into station yard about five feet from office, and while there Bland and Parker came out and passed plaintiff going towards the store of Moses Moore, which abutted on the station premises; as they passed, Parker asked plaintiff to come on and have a drink"; that soon Bland, while standing about 40 steps away in the direction of the store and in the station yard, called to plaintiff to "come over here, I would like to speak to you"; plaintiff went to him, when Bland asked plaintiff why he had told that Bland was selling whisky; plaintiff replied that he didn't recall having said anything about that; Bland said to plaintiff, "Didn't you tell Capt. Haley that I had been peddling whisky on the streets of Kelford?" Plaintiff replied, "No, " when Bland called him a God damned liar and picked up a heavy stick three feet long and hit plaintiff several times with it over head, and shoulders, etc.; that plaintiff tried to make defense, but was too much stunned and crippled by the blows with the stick; that plaintiff went up on platform of the store to get something to protect himself, and Bland followed; they clinched and fell off the porch; that during the occurrence, Bland, who was at the time station agent of the company at Norfleet, continued to curse and abuse plaintiff and in the assault inflicted protracted and painful injuries upon him.

Considering this statement under the rule which uniformly prevails in this jurisdiction that on motion to nonsuit the evidence which makes in favor of plaintiff's claim must be accepted as true, and construed in the light most favorable to him (Lamb v. Railroad, 179 N. C. 619, 103 S. E. 440, and authorities cited), the facts clearly permit the inference that plaintiff was a passenger of defendant company on this occasion, and that under the circumstances presented the company is liable for the misconduct of Bland, their agent and codefendant.

There was evidence on the part of defendant tending to show that plaintiff had come to the station and made inquiry of its agent at or near 8 in the morning, more than two hours before the schedule time for the train, that plaintiff had said nothing of his purpose of becoming passenger, and that he knew of the custom not to open the ticket window till 15 minutes before schedule time for train. Defendant's evidence further tended, to show that Bland was not the agent at Norfleet at this time, but had surrendered the keep and control of the station the after-

[106 S.E. 493]

noon before to O. W. Parker, the now man at Norfleet, and with view of becoming agent at Kelford the next station on the line, and that, if Bland was at or about the station on that occasion at all that day, he was there only for the purpose of assisting Parker, the new agent, to take up the work, and that he was otherwise without authority or duty at Norfleet, and further that the fight was not on the company's premises proper, but commenced on the platform of the store. On the motion to nonsuit tills testimony coming from defendant could not properly be considered, and, as to plaintiff's being a passenger, the question on the conflicting testimony wag submitted to the jury, with the instruction, among other things, that—

"If plaintiff, Clark, went to said railroad at Norfleet upon this occasion to take the next train for Kelford, and went to the station at Norfleet in a reasonable time before the time for the arrival of the train, though he had not purchased a ticket,...