Grand Rapids & I. Ry. Co. v. King

• Decision Date: 20 February 1908
• Docket Number: No. 6,093.,6,093.
• Citation: 83 N.E. 778,41 Ind.App. 701
• Court: Indiana Appellate Court
• Parties: GRAND RAPIDS & I. RY. CO. v. KING.

41 Ind.App. 701

83 N.E. 778

GRAND RAPIDS & I. RY. CO.

v.KING.

No. 6,093.¹

Appellate Court of Indiana, Division No. 1.

Feb. 20, 1908.

Appeal from Circuit Court, Adams County; Richard K. Erwin, Judge.

Suit by Jesse N. King against the Grand Rapids & Indiana Railway Company, From a judgment for plaintiff, defendant appeals. Affirmed.

J. W. Headington and R. D. Wheat, for appellant. Smith & Moran, for appellee.

MYERS, J.

Appellee brought this action against appellant to recover damages for alleged injuries sustained by him by reason of false imprisonment, and because of an assault and battery perpetrated by appellant, acting by its servant, Jacob P. Barr. This action was commenced in the Jay circuit court, and the venue changed to the Adams circuit court, where a trial was had upon the second paragraph of complaint, answered by a general denial. From a judgment in favor of appellee, appellant appeals, assigning error on the ruling of the court in overruling its demurrer to the second paragraph of complaint, and in overruling its motion for a new trial.

Appellee insists that appellant has waived each of its assignments of error because of a failure to comply with rule 22 of the Supreme and this court (55 N. E. v). The writer of appellant's brief evidently gave but little, if any, attention to that rule. However, the brief does contain the substance of the second paragraph of complaint, and by inference only from the brief we understand that a demurrer for want of facts to that paragraph was overruled. By giving appellant the benefit of this inference, the question argued on this paragraph of complaint may be considered.

Appellant insists that the second paragraph of the complaint is defective, for the reason that by its allegations Barr's authority and the scope of his employment by appellant is measured and his duty defined by the word “detective.” The mere fact that Barr was a detective and employed by appellant as such does not imply that he had authority to make arrests. But where it appears, as it does from the pleading before us, that Barr was employed by appellant, with authority from appellant to arrest all persons who had purloined, stolen, or destroyed any of the latter's property, and that said Barr, while so acting, and within the scope and line of his employment, and without a warrant or without any authority at law, and without any criminal offense being committed by appellee within his view or presence, unlawfully, maliciously, and by force seized, arrested and imprisoned appellee in the city prison in the city of Portland, Ind., and while so engaged in making said arrest brutally beat and assaulted appellee, together with the allegation that said seizure and arrest and imprisonment was caused by the appellant through its agents, servants, detectives, and employés while acting in the scope of their employment, sufficiently shows that the tortious acts complained of, and which resulted in damage to appellee, grew out of appellant's employment of Barr, and were committed by the latter in the performance of his duties in the furtherance of appellant's interests, and therefore attributable to appellant. And this is so whether the wrongful acts were authorized by appellant or not. American Express Co. v. Patterson, 73 Ind. 430;Evansville, etc., R. Co. v. McKee, 99 Ind. 519, 50 Am. Rep. 102;Pennsylvania Co. v. Weddle, 100 Ind. 138;Terre Haute, etc., R. Co. v. Jackson, 81 Ind. 19;Harness v. Steele, 159 Ind. 286, 64 N. E. 875;Smith v. Munch, 65 Minn. 256, 68 N. W. 19;Johnston v. Chicago, etc., R. Co., 130 Wis. 492, 110 N. W. 424.

The first three reasons in support of appellant's motion for a new trial are based upon the insufficiency of the evidence; and, were it not for the condensed recital of the evidence appearing in appellee's brief, no question depending upon the evidence would be presented for review. Chicago, etc., Ry. Co. v. Wysor Land Co., 163 Ind. 288, 69 N. E. 546;Adams v. Betz, 167 Ind. 161, 78 N. E. 649. From a recital of the evidence as found in appellee's brief, it appears that Barr on and for 16 months prior to September 27, 1904, was in the employ of appellant in the capacity of “special police,” or “detective,” and on that day a reported theft of $59 from its depot at Portland, Ind., was referred to him for investigation. Pursuant to this direction and instruction, and on that day, Barr began said investigation, and from one of the depot agents he learned that appellee had been with the agent and around the depot on the night of the supposed loss. On the morning of said September 27th one of appellant's depot agents introduced Barr to appellee, saying that Barr was a detective for the Grand Rapids & Indiana Railway Company, and was there investigating the shortage in the office. In the afternoon of the same day Barr met appellee, and, after some conversation, said to him, “Damn you, you got that money.” Appellee denied any knowledge of the money. Then Barr “told King that he would have to go along with him.” Appellee did not move, and Barr struck him in the face, put handcuffs on him, took hold of his coat collar, and within the view of a number of persons passing along the street took appellee to the mayor's office, and while there twice knocked him down. Barr there obtained the keys to the jail, and by force took appellee to the jail, put him in an iron cell, knocked him down again, then closed the jail door, and left him. Barr had no warrant. A few minutes after this occurrence it was discovered that no loss of money had occurred, and appellee was released from custody. Appellant insists that the evidence does not authorize the finding that Barr was acting within the scope of his employment when he made the arrest. From the evidence it may be said that Barr was acting under instructions from appellant to investigate a supposed felony “and to locate the guilty party,” and was so engaged when he accused appellee with having the company's money. There is no evidence showing that Barr in making the arrest had any purpose of his own in view or any other motive than the interest of appellant. Barr was appellant's servant. He designates his employment as that of “special police.” Employés of appellant and others refer to him as appellant's detective. Whether as special police or as a detective, his general employment afforded him the opportunity which he used in committing the tortious acts on appellee. In cases of this character the law holds the corporation liable for the acts of its servants committed within the general scope of their employment (Terre Haute, etc., R. Co. v. Jackson, supra); and whether committed while so acting is ordinarily a question of fact for the jury. Sharp v. Erie R. R. Co., 184 N. Y. 100, 76 N. E. 923;Girvin v. New York, etc., R. R. Co., 166 N. Y. 289, 59 N. E. 921;Ritchie v. Waller, 63 Conn. 155, 28 Atl. 29, 27 L. R. A. 161, 38 Am. St. Rep. 361. In this case the jury's finding included that fact, and was against appellant, and this finding on appeal will not be disturbed, if from the evidence reasonable inferences may be drawn supporting it. Cincinnati, etc., R. Co. v. Madden, 134 Ind. 462, 34 N. E. 227;Delaware, etc., Tel. Co. v. Fisk, 40 Ind. App. 133, 81 N. E. 1100. Appellant insists that the evidence establishes the fact that Barr was employed by it as a detective only, and the scope of his authority and duty to appellant is fixed and measured by the word “detective.” That word, as commonly understood, is defined as “one of a body of police officers usually dressed in plain clothes, to whom are intrusted the detection of crimes and the apprehension of the offenders.” American Dictionary. “A policeman whose business is to detect rogues by adroitly investigating their haunts and habits.” Webster. In the light of the definitions given and all the evidence disclosed by the record indicating the services required by Barr, and the circumstances under which the acts were done, we cannot say as a matter of law that the jury was not authorized in finding that Barr committed the wrongful acts as charged in the complaint while engaged in the line of his employment. Barr says his duty to appellant under his employment was not only to investigate crimes affecting appellant, but to locate the guilty party....