Conchin v. El Paso & Southwestern Railroad Co.

• Decision Date: 02 April 1910
• Docket Number: Civil 1089
• Citation: 108 P. 260,13 Ariz. 259
• Parties: JOHN CONCHIN, Plaintiff and Appellant, v. EL PASO & SOUTHWESTERN RAILROAD COMPANY, a Corporation, Defendant and Appellee
• Court: Arizona Supreme Court

108 P. 260

13 Ariz. 259

JOHN CONCHIN, Plaintiff and Appellant, v. EL PASO & SOUTHWESTERN RAILROAD COMPANY, a Corporation, Defendant and Appellee

Civil No. 1089

Supreme Court of Arizona

April 2, 1910

APPEAL from a judgment of the District Court of the Second Judicial District, in and for Cochise County. Fletcher M. Doan, Judge. Reversed.

The facts are stated in the opinion.

William B. Cleary, for Appellant.

Anything done by the watchman in the course of the employment, even though he exceeded his authority, was the act of the company binding it in damages for its negligent performance; the mere fact that the watchman was a deputy sheriff did not excuse the company for his act. St. Louis U. T.C. v Hackett, 58 Ark. 381, 41 Am. St. Rep. 105, 24 S.W. 881. "A railroad company employing a servant who happens to be a public officer acquires no immunity from such employment . . .; the character of the servant's act is to be determined in the same way and upon the same principles as if he was not a public officer at all . . . ; if, while acting within the general scope of his employment, he simply disregards his master's orders or exceeds his powers, the master will be responsible for his conduct." Sharp v Erie Railroad Co., 184 N.Y. 100, 76 N.E. 923, 6 Ann. Cas 250.

Herring, Sorin & Ellinwood, for Appellee.

The allegation of the complaint "that the said Stafford was then and there acting within the scope of his employment" is a mere conclusion and not a statement of any fact, and is insufficient. Davis v. Houghtellin, 33 Neb. 582, 50 N.W. 766, 14 L.R.A. 737; Snyder v. H. & St. Jo. R.R. Co., 60 Mo. 413. A master is liable for the act of his servant done in the course of his employment about his master's business. Wood on Master and Servant, 522. A master is not liable for acts of his servant not within the scope of his employment. Tuller v. Voght, 13 Ill. 277-285; Oxford v. Peter, 28 Ill. 434; C.M. & St. P. Ry. Co. v. West, 125 Ill. 320-323, 8 Am. St. Rep. 380, 17 N.E. 788; N.C.C. Ry. Co. v. Gastka, 128 Ill. 613-617, 21 N.E. 522, 4 L.R.A. 481; C.B. & Q. Ry. Co. v. Casey, 9 Ill.App. 632; Foster v. Essex Bank, 17 Mass. 478. 508, 510, 9 Am. Dec. 168; Merchants' Bank v. Bank of Columbia, 5 Wheat. (U.S.) 326, 5 L.Ed. 100; Bolinbroke v. Swindon Local Board, 8 Ad. & E. 512; Bailey v. Manchester Ry. Co., L.R. 7 C.P. 420; Evans' Ewell on Agency, marg. P. 489; Wood on Master and Servant, 522; Story on Agency, 9th ed., secs. 456-456a; 14 Am. & Eng. Ency of Law, 1st ed., pp. 818-825; Thames Steamboat Co. v. Housatonic Ry. Co., 24 Conn. 40, 53, 54, 56, 63 Am. Dec. 154; McCann v. Tillinghast, 140 Mass. 327, 5 N.E. 164; Cleveland v. Newson, 45 Mich. 62, 7 N.W. 222; Cantrell v. Colwell, 40 Tenn. 471; Golden v. Newbrand, 52 Iowa 59, 35 Am. Rep. 257, 2 N.W. 537.

OPINION

DOE, J.

-- The plaintiff (here appellant) brought his action seeking to recover damages from the defendant for injuries inflicted by a watchman in its employ. In the first cause of action plaintiff, in substance, alleges: That the defendant employed one Stafford as watchman of all its property at certain railroad yards on its line of road, to guard its said property from depredations, to apprehend and turn over to a peace officer for arrest all persons who he believed had committed or attempted to commit any depredation upon its said property, to ascertain the identity of and to keep off and frighten away from said premises and property all persons acting in a suspicious manner, and armed him with a revolver to carry out his said employment. That plaintiff, about 3 o'clock in the morning, while passing the place where Stafford was stationed as such watchman in a peaceable manner, and without having committed or intending to commit any depredation upon its property, was fired upon by Stafford, who called to him to halt, but that plaintiff, being frightened, ran. That Stafford continued to fire toward him and hit him in the knee, but that Stafford did not intend to hit, but only to frighten, him. For a second cause of action, in addition to the foregoing matters, plaintiff alleges that Stafford was, at the time, a deputy sheriff, but does not allege that he was acting in such a capacity at the time of the acts complained of. Defendant filed general demurrers which were sustained, and, plaintiff declining to amend, judgment was rendered for defendant, and from said judgment plaintiff prosecutes this appeal. His only assignment of error is predicated upon the action of the court in sustaining the demurrers.

The question presented by this appeal may most conveniently be determined by a consideration of the propositions advanced by appellee in support of its demurrers and in the order stated; the same being: First. That the acts complained of were without the scope of the watchman's employment. Second. That the complaint was fatally defective in failing to negative that the plaintiff was a trespasser, the injuries having been inflicted upon the premises of the defendant and the action based upon mere negligence. Third. That the plaintiff, being a trespasser to whom the defendant owed no duty except not to wantonly or willfully inflict injury upon him, the complaint is defective, in that it fails to charge wanton or willful injury and alleges mere negligence on the part of the defendant. Fourth. That by running away instead of stopping when challenged plaintiff was guilty of such contributory negligence as to prevent recovery.

While plaintiff's allegations that the acts complained of were within the scope of Stafford's employment are mere conclusions and to be treated as surplusage, yet all allegations of fact contained in the complaint which are properly pleaded must, for the purpose of this case, be treated as true. It is alleged in the complaint that Stafford was employed as a watchman to protect the defendant's premises and property from depredation, to ascertain the identity of persons who might commit or attempt to commit such depredation, "to apprehend and turn over to a peace officer for arrest all persons who he had reason to believe or did believe had committed or attempted to commit any crime against the property," to keep off and frighten away from the property all persons acting in a suspicious manner, and "that said Stafford was armed by defendant with a revolver to carry out his said employment."

The words "within the scope of his employment," as applied to the liability of a master for the wrongful acts of his servant, are probably not susceptible of any satisfactory definition of general application; each case must be determined by the particular facts and circumstances surrounding it. Before the master can be held liable for the negligence or wrongful act of his servant, it must appear that the servant was engaged at the time in the performance of the duties of his employment, and if so engaged, and the wrongful act was performed in connection with such duties and in apparent...