Heenrich v. Pullman Palace Car Co.

• Decision Date: 01 January 1884
• Citation: 20 F. 100
• Parties: HEENRICH v. PULLMAN PALACE CAR CO.
• Court: U.S. District Court — District of Oregon

20 F. 100

HEENRICH v. PULLMAN PALACE CAR CO.

United States District Court, D. Oregon.

1884

Julius Moreland, for plaintiff.

Charles B. Bellinger, for defendant.

DEADY J.

This action is brought by the plaintiff, a citizen of Minnesota against the defendant, a corporation formed under the laws of Illinois, to recover $25,000 damages for an injury to her person, received while traveling as a passenger on a Pullman palace car attached to a train on the Northern Pacific Railway, running from St. Paul to Portland, and caused, as alleged, by the negligent handling of a pistol by the porter in charge of said car while 'in the discharge of his duty as such porter,' and 'while attending to the defendant's business,' whereby the same fell on the car floor and was discharged, the ball entering the thigh of the plaintiff, and inflicting a dangerous would therein. The answer of the defendant controverts the allegation of the plaintiff that the porter 'was in the discharge of his duty' when he let the pistol fall; and also contains a plea in bar of the action-- that the pistol mentioned in the complaint was the property of a passenger on said train; that said porter received it from the owner, and was carrying it through the car at the request of said owner, and not otherwise, at the time of the discharge and wounding in the complaint mentioned; and that it is one of the defendant's rules and directions to all its car porters that they are not permitted to receive any package, baggage or article of luggage from passengers, or to become custodians thereof; which rule and order was, at the time of the taking and carrying of said pistol by said porter, well known to him; and that said porter, in so receiving and carrying said pistol, was acting in violation of the defendant's orders. To this new matter the plaintiff demurs, for that it does not constitute a defense to the action.

A corporation is liable to the same extent as a natural person for an injury caused by its servant in the course of his employment. Moore v. Fitchburg Ry. Corp. 4 Gray, 465; Thayer v. Boston, 19 Pick. 511.

In Story, Ag. Sec. 452, it is laid down that a principal is liable to third persons in a civil suit for the frauds deceits, concealments, misrepresentations, torts, negligences and other malfeasances or misfeasances and omissions, although the principal did not authorize or justify, or participate in, or, indeed, know of such misconduct, or even if he forbade the acts or disapproved of them. In all such cases the rule applies respondeat superior; and it is founded on public policy and convenience; for in no other way could there by any safety to third persons in their dealings, either directly with the principal, or indirectly with him through the instrumentality of agents. In every such case the principal holds out his agent as competent and fit to be trusted, and thereby, in effect, he warrants his fidelity and good conduct in all matters within the scope of his agency.

In Ramsden v. Boston & A.R. Co. 104 Mass. 117, it was held that the corporation was liable to an action for an assault and battery, for the act of its conductor in wrongfully and unlawfully attempting to seize the parasol of a passenger for her fare. In delivering the opinion of the court, Mr. Justice GRAY said:

'If the act of the servant is within the general scope of his employment, the master is equally liable, whether the act is willful or merely negligent, or even if it is contrary to an express order of the master.'

In Philadelphia & R. Ry. Co. v. Derby, 14 How. 468, a servant of the corporation ran an engine on its track contrary to its express order, and thereby caused a collision, in which the defendant was injured, and it was held that the corporation was liable for the injury. In delivering the opinion of the court, Mr. Justice GRIER said:

'The rule of respondeat superior, or that the master shall be civilly liable for the tortious acts of his servant, is of universal application, whether the act be one of omission or commission, whether negligent, fraudulent, or deceitful. If it be done in the course of his employment, the master is liable; and it makes no difference that the master did not authorize, or even know of, the servant's act or neglect; or even if he disapproved or forbid it, he is equally liable, if the act be done in the course of his servant's employment.'

The authorities to this point might be multiplied indefinitely, but these are sufficient. Tried by them, this defense is clearly bad. It is not alleged that the corporation commanded the porter to do the act which caused the injury to the plaintiff, and therefore if is was not done in the course of his employment it is not liable therefor. But if the act was done in the course of his employment, the corporation is liable to the plaintiff for the injury caused thereby, notwithstanding the order to the porter. The case, so far as appears, must turn on the issue made by the denial of the allegation that the porter was in the discharge of his duty, or the course of his employment, at the time he let the pistol fall. And whether he was acting contrary to his employers' orders or not is altogether immaterial.

In Whart. Neg. Sec. 157, in discussing this subject, the learned author says:

'That he who puts in operation an agency which he controls, while he receives its emoluments, is responsible for the injuries it incidentally inflicts. Servants are, in this sense, machinery, and for the defects of his servants, within the scope of their employment, the master is as much liable as for the defects of his machines.'

And Cooley, Torts, 539, says:

'It is immaterial to the master's responsibility that the servant, at the time, was neglecting some rule of caution which the master had prescribed, or was exceeding his master's instructions, or was disregarding them in some particular, and that the injury which actually resulted is attributable to the servant's failure to observe the directions given him. In other words, it is not sufficient for the master to give proper directions; he must also see that they are obeyed.'

On page 540 the learned author gives an apt illustration of the rule. A farm servant burned over the fallow when the wind was from the west, and thereby destroyed the adjoining premises on the east, although he had been directed, on that very account, not to set out the fire unless the wind was in the west, and the master was responsible.

The cases cited by counsel are not in conflict with this conclusion. They are Whart. Neg. Sec. 168; Tuller v. Voght, 13 Ill. 285; Oxford v. Peter, 28 Ill. 435; Foster v. Essex Bank, 17 Mass. 508; and Mali v. Lord, 39 N.Y. 381. They are only to the effect, as is said in Oxford v. Peter, that the master is not liable 'for the willful or malicious acts of his servant, unless it is in furtherance of the business of the master. The contention in these cases was not as to the rule of law, but the application of it,-- whether the act complained of was done in the furtherance of the business of the master, or, rather, in the course of the servant's employment. Sometimes this is a very nice question, and difficult to determine, but the rule of law is, I think, undisputed that where the servant is acting in the course of or within the scope of his employment, the master is liable for his acts of commission or omission, as if they were his own; and this, notwithstanding the servant may have acted contrary to his master's orders. Whether the act complained of in this case was within the scope of the porter's employment, on that occasion, will be ascertained from the evidence on the trial of the issue elsewhere made in the case.

The demurrer is sustained.

SCOPE OF EMPLOYMENT. The principal case affords merely another illustration of the well-settled rule that a master is liable for the act of his servant if within the scope of his employment, although the act in question was willful, ^[1] or even malicious, ^[2] or contrary to the employer's express instructions. ^[3] The difficulty arises in the application of this principle to particular states of fact; and to discover the underlying principle which divides the cases requires careful discrimination

A driver went out with the team on an errand of his own, and, returning, called for some of his master's goods on the way, and, while carrying them, had a collision; it was held that he was not acting within the scope of his employment. ^[4] On the other hand, where the pilot of a ferry-boat departed from his usual course, between the termini of his route, to place a stranger upon a passing tow, without compensation to himself or his employers, the latter were held liable for a collision resulting therefrom upon proof that the same departure had been made before, and that it might indirectly benefit the employers. ^[5] And the owner of a horse and cab let by the day, for use at the discretion of the driver, was held liable for the latter's negligence in running over the plaintiff, although the injury occurred when returning to the stable by an indirect route on a private errand of his own. ^[6]

Where plaintiff's horse was frightened by a pile of bags left temporarily at the foot of a hill, by an employe, to lighten his load while delivering goods, the employer was held liable for the damages occasioned thereby. ^[7] Where a driver took a load of coal to the wrong house, and delivered it to one who had not ordered it, but subsequently paid for it, and the driver negligently left the coal-hole open, the master was held liable. ^[8] A stevedore's foreman dissatisfied with a cartman's unloading, zealously took the cartman's place, and, in throwing a package, injured the plaintiff. This was held to be evidence to...