Galehouse v. Minneapolis, St. P. & S. S. M. Ry. Co.

• Decision Date: 17 February 1912
• Court: North Dakota Supreme Court
• Parties: GALEHOUSE v. MINNEAPOLIS, ST. P. & S. S. M. RY. CO.

22 N.D. 615

135 N.W. 189

GALEHOUSE

v.MINNEAPOLIS, ST. P. & S. S. M. RY. CO.

Supreme Court of North Dakota.

Feb. 17, 1912.

Syllabus by the Court.

An indorsement stamped by means of a rubber stamp on the back of a summons and complaint, of the words “In sheriff's office, Dec. 2, 1908, John J. Lee, Sheriff, Ward County,” under section 2503 of the Codes of 1905, which makes it the duty of the sheriff to indorse “upon all notices and processes received by him for service, the year, month, day, hour, and minute of reception,” and under section 7317 of the Code, which provides that “the presumption that official duty has been regularly performed is satisfactory if uncontradicted” will be deemed satisfactory evidence of the facts therein contained, and that the summons and complaint were delivered to the sheriff for service upon the day stated, in the absence of satisfactory proof to the contrary.

A person is not a passenger and entitled to consideration and protection as such who, after waiting all day in a station for a train and discovering that he will be unable to reach his destination in time for the accomplishment of the purpose of his journey, leaves the station and goes to a hotel for supper, and then returns to such station for the purpose of sending a telegram, announcing the fact that he will be unable to make the journey, and that it is his intention not to attempt to do so.

The mere fact that an employé is authorized to preserve order upon the premises of his employer does not make an assault committed by him upon a patron of his employer an act done within the scope of his authority for which his employer will be liable, when the evidence shows that the assault made was not made for the purpose of preserving order or ejecting such person from the premises in pursuance of such authority.

When there is a conflict in the evidence, but the testimony of the plaintiff's witnesses, if believed, would justify the jury in finding that a common carrier of telegraphic messages neglected to promptly deliver a death message to the plaintiff, so that plaintiff was unable to take a train by which he could have reached the home of the deceased in time for the funeral, and the plaintiff, after waiting all day in the station for a later train, and then finding that he would be unable to reach his destination in time, went to the telegraph office to send a message announcing the fact, and, on being informed that the wires were down and such message could not be sent, complained because of the failure of the company to deliver the message promptly in the morning, and, on account of such protest, was assaulted by the telegraph operator, the common carrier of telegraphic messages may be held responsible for such assault and liable in damages therefor.

If, however, after going to the depot for the purpose of sending the message, and after being informed that such message could not be sent on account of the fact that the wires were down, the jury had found that plaintiff had not merely complained of the failure to deliver the message in the morning, but had called the employé a liar, or used other opprobrious language which incited the employé to make the assault, so that the assault was the result of the irritation occasioned by the use of such language, and not of the mere fact of the making of the complaint, the employer would not be liable in damages therefor. “One may not by his acts spoil an instrument and then sue the manager because the performer does not make good music.”

A person who goes to a telegraph office to send a message, or to make a complaint as to the failure to deliver the same, is not a trespasser or licensee, but a customer or patron, and is entitled to treatment and protection as such.

Where the evidence is in conflict and the record shows that the trial court instructed the jury, but omits entirely to include such instructions, it will be presumed on appeal that such instructions were correct, and properly presented the law and the issues to the jury.

Appeal from District Court, Ward County; Burke, Judge.

Action by E. Galehouse against the Minneapolis, St. Paul & Sault Ste. Marie Railway Company. From a judgment for plaintiff, defendant appeals. Affirmed.

This is an action to recover damages for an alleged assault upon the plaintiff by one Clarence Holiday, an employé of the defendant, at its station in the city of Donnybrook. The complaint alleges that the defendant is a common carrier of passengers and freight, and of telegraph messages for hire and profit; that during the month of December, 1906, the plaintiff was in the passenger depot of the defendant company at Donnybrook as a passenger and for the purpose of doing businessin a lawful way with said defendant as a common carrier of passengers and telegrams, and that while so engaged, and while attempting to send a telegram over the telegraph line operated by the defendant in connection with its line of railway, he was assaulted by the said Holiday, “who was then and there the servant, employé, and agent of the said defendant, acting within the scope of his employment, duty, and authority as such servant, employé and agent of the defendant.” The answer admits that the defendant is a railway company, but denies the other allegations of the complaint. It also alleges that if any assault was committed it was on account of the fact that the plaintiff made the first assault, and that the assault complained of was made in self-defense. It further pleads the two-year statute of limitations. The defendant and appellant maintains that the summons and complaint were not filed until December 12, 1908, and, if this be the fact, the statute of limitations ran against the action. It is claimed by the plaintiff, however, that the summons and complaint were delivered to the sheriff of Ward county for service on the 2d day of December, 1908. There is no evidence upon the point except the papers themselves. On the back of the summons and complaint there is stamped, by means of a rubber stamp, the words, “In sheriff's office, Dec. 2, 1908, John J. Lee, Sheriff, Ward County,” and no other evidence but such indorsement was offered as to the date of the commencement of the action, plaintiff's attorney testifying merely that on his way home from his office-he did not recollect the date-he handed the summons and complaint to the deputy sheriff, and that he stamped it there with a rubber stamp machine; that “he changed it before he put the stamp on”; that he “monkeyed with it, and put the stamp on there. How he changed it I don't know”; that he turned it either back or forward. There is some evidence, also, that this method of indorsing the date of receipt is the present custom of the office, but this evidence was objected to, and probably with reason, as it did not date back to the time of the transaction.

As far as the assault is concerned, and the reasons therefor, it is undisputed that at 2 o'clock in the morning a telegram addressed to the plaintiff was received by the defendant, announcing the death of the plaintiff's stepmother, and that the said telegram was not delivered until 9 o'clock; that the night train was late, and, had the message been delivered promptly, plaintiff could have taken such train and attended the funeral; that in the afternoon he went to the depot of the defendant intending to take the second train, but, after waiting around an hour or two, found that he could not possibly reach his destination in time, so left the depot and went to a hotel for supper, and after supper returned to the railway station for the purpose of sending messages to his relatives that he could not come; that the agent, Hough, gave him some blanks, but told him that he could not accept the telegrams, as the wires were down. So far there is little or no conflict in the testimony, and it was after this point that the dispute occurs. According to the plaintiff's testimony, which is corroborated by the witness McCarthy, he then asked the station agent, Hough, why the message in the morning had not been delivered to him so that he could have caught the east-bound train, and that at this point one Holiday (the night operator, who was in the office and behind Hough) spoke up and said, “I did not know where you lived, and, damn you, I would not have delivered the message if I had. I will show you about delivering messages”-and that said Holiday then rushed out of the office and assaulted the plaintiff. The witness McCarthy adds testimony to the effect that Holiday said, “We have had just about enough of you around here, coming down here trying to bulldoze the whole crowd, and I will show you,” and that he then rushed into the waiting room and made the assault, first unlocking the door of the office which intervened. The witness Holiday testified, on the other hand, that when Galehouse came into the office Holiday was probably at the instrument; that he was exchanging work until late at night; that Galehouse asked why that message had not been delivered when it was received; that Holliday probably said nothing at first, until Galehouse began to talk over the agent to him; wanted to know why he had not delivered that message; that he (Holiday) told him (Galehouse) that he did not know where he lived, and, further, that he could not get off at that time; that he believed Galehouse used some abusive language at that time; that he asked why he did not deliver the message and he (Holliday) said, “I don't know where you live, and what about it even though I did not deliver the message?” and that Galehouse then told him to come outside and he would show him what about it; that he then rushed outside and unlocked the intervening door, and that immediately he got into the outer office Galehouse struck him and the combat began. Holiday also testifies that it was his duty to keep order in the station, but from his evidence it is quite clear that in making the...