Davis v. Merrill

Decision Date15 June 1922
Citation112 S.E. 628
PartiesDAVIS, Director General of Railroads, v. MERRILL.
CourtVirginia Supreme Court

Error to Circuit Court of City of Norfolk.

Action by E. S. Merrill, administrator of Claudia Harrell, deceased, against John Barton Payne, Director General of Railroads, predecessor of J. C. Davis, Director General of Railroads and Agent under section 200 of the Transportation Act of 1920. Judgment for plaintiff, and the latter brings error. Affirmed.

Hughes, Little & Seawell, of Norfolk, and F. M. Rivinus, of Philadelphia, Pa., for plaintiff in error.

Tazewell Taylor, of Norfolk, and H. R. Leary, of Edenton, N. C, for defendant in error.

WEST, J. The defendant in error, E. S. Merrill, administrator of Claudia Harrell, deceased, recovered a judgment against John Barton Payne, Director General of Rail-roads, the immediate predecessor of the plaintiff in error, J. C. Davis, Director General of Railroads and Agent under section 206 of the Transportation Act of 1920 (41 Stat. 461), in the circuit court of the city of Norfolk, for $10,000, with interest from November 18, 1920, and costs, for negligently and wrongfully causing the death of said Claudia Harrell. The case is here upon a writ of error to that judgment.

For convenience the parties will be designated as plaintiff and defendant, with respect to their positions in the trial court.

About 1 o'clock a. m. on October 11, 1919. the plaintiff's intestate, in company with several others in an automobile, was returning from Ocean Park to her home in Norfolk. When they arrived at the Norfolk & Western Railroad Crossing on Brambleton avenue, they were stopped by the closed gates, although no train was approaching. After being called several times, the gate-man, Branch A. Ford, came out of a nearby storehouse with a lantern in his hand. The chauffeur asked him to please raise the gates, to which he replied, "There is other crossings you can go over besides this one." The chauffeur told him he did not have time to go all over town looking for crossings, when there was no train standing there and no train approaching. Ford then left, going towards the tower, and started up, mumbling something the driver could not understand.

As soon as he entered the tower box he raised the gates, and as the car was leaving the wood part of the crossing Ford fired three pistol shots at the rear of the car, in quick succession, one of which struck Claudia Harrel in the back, giving her a wound from which she died shortly thereafter in a Norfolk hospital.

Ford was arrested a few hours later under a warrant charging him with murder. The officers who made the arrest and all other witnesses who saw him that night and next day, except J. T. Rontten, testified that he talked and acted as a sane man, and that they saw nothing strange in his conduct. Routten thought he acted strange, and he appeared to him to be upset mentally.

On January 21, 1920, Ford was adjudged insane and committed to the Southwestern State Hospital for proper care and observation, with instructions to the superintendent to inform the corporation court of the city of Norfolk from time to time of his mental condition.

The defendant contends that the trial court erred:

(1) In overruling the demurrer to the plaintiff's amended declaration.

(2) In refusing to give a certain instruction asked for by the defendant.

(3) In overruling defendant's motion to set aside the verdict of the jury and enter judgment for defendant.

The plaintiff rests the liability of the defendant on two grounds:

(1) "That the killing of the plaintiff's intestate by the defendant's employee arose out of and was a part of a transaction between the plaintiff's intestate and the defendant company, in which the gateman, Ford, was acting for the defendant company, said transaction being within the scope of the gateman's employment.

(2) "That the defendant company was responsible for the employment of a servant of the character of the gateman, when it not only knew by reason of its previous discharge of him, but might further have known by the exercise of ordinary care, that he was an incompetent and dangerous person to intrust with duties of the character in question."

The first assignment of error will be considered along with the third assignment.

(a) The instruction referred to in the second assignment of error reads as follows:

"If you believe from the evidence that Ford's duties as crossing watchman for the railroad did not require or authorize him to commit the act which resulted in Claudia Harrell's death, but that it was his personal act, outside of the scope of his duty, then you must find for the defendant."

The court gave the following instruction as the only instruction in the case:

"If you believe from the evidence that Ford did not act within the scope of his authority and the duty in committing the act which resulted in the death of Claudia Harrell, but outside of the scope of his authority, then you must find for the defendant."

The instruction refused was properly refused for the reason that it directs a verdict for the defendant on a partial view of the evidence. There is evidence tending to support the plaintiff's contention that the defendant was liable for its conduct in employing for gateman a person who it knew, or by the exercise of ordinary care ought to have known, was an unfit person for the position. Yet, under the instruction in question, even though the jury might have believed the defendant negligent in this respect, they would have been compelled to return a verdict against the plaintiff, if they were of the opinion that Ford's act was not required or authorized by the defendant. Besides, the instruction given supra sufficiently covered the law of the case.

There is no merit in this assignment.

(b) Was Ford acting within the scope of his employment when he fired the fatal shot?

If a person, acting for himself, willfully and maliciously inflict an injury upon another, he is liable in damages for such injury. And there is no reason why a master should be permitted to turn his business over to servants who have no regard for the public welfare and thereby escape the responsibility which he would otherwise have to bear. It is manifestly right and just thatboth corporations and individuals be required to answer in damages for wanton and malicious assaults inflicted upon others by their servants, while acting within the scope of the servants' employment and duty, and it matters not whether the act of the servant is due to a lack of judgment, the infirmity of temper, or the influence of passion, or that the servant goes beyond his strict line of duty and authority in inflicting such injury; and the authorities so hold.

In Railroad Co. v. Quigley, 21 How. 202, 16 L. Ed. 73. it is held that—

"For acts done by the agents of a corporation, either in contractu or in delicto, in the course of its business, and of their employment, the corporation is responsible, as an individual is responsible under similar circumstances."

In the case of Richberger v. Am. Exp. Co., 73 Miss. 161, 18 South. 922, 31 L. R. A. 390, 55 Am. St. Rep. 522 (in which the plaintiff went to the office of the defendant to pay an overcharge on express matter and subsequently returned to have the overcharge refunded, and immediately upon signing and delivering the receipt therefor the defendant's servant cursed and insulted the plaintiff), the court says:

"It is impossible to say, on the allegations of this declaration, that the tort committed immediately upon the delivery of the receipt to the agent, and because of the demand for the refunding of what was plaintiff's conceded due, was so separated in time or logical sequence as not to have been an act done in the master's business. The whole transaction occurred in the shortest time, and was one continuous and unbroken occurrence. The cursing and abusing and maltreatment were all administered in connection with the taking of the receipt and immediately upon its delivery, and because of the demand for his rights in that matter, and while plaintiff was in appellee's office to transact, and transacting, this very business. What was said and done thus immediately upon the delivery of the receipt was part of the res gestae. * * * The master who puts the servant in a place of trust or responsibility, or commits to him the management of his business or care of his property, is justly held responsible when the servant, through lack of judgment or discretion, or from infirmity of temper, or under the influence of passion aroused by the circumstances and the occasion, goes beyond the strict line of his duty and authority and inflicts an unjustifiable injury upon another."

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