Hobbs v. Ill. Cent. R. Co.

• Decision Date: 10 April 1915
• Docket Number: No. 30066.,30066.
• Citation: 152 N.W. 40,171 Iowa 624
• Parties: HOBBS v. ILLINOIS CENT. R. CO. ET AL.
• Court: Iowa Supreme Court

171 Iowa 624

152 N.W. 40

HOBBS

v.ILLINOIS CENT. R. CO. ET AL.

No. 30066.

Supreme Court of Iowa.

April 10, 1915.

Appeal from District Court, Cherokee County; Wm. H. Hutchinson, Judge.

Action for damages consequent on an alleged unlawful ejectment from defendant's train resulted in judgment against defendant, from which it appeals. Reversed.Molyneaux & Maher, of Cherokee, and Helsell & Helsell, of Ft. Dodge, for appellants.

McCulla & McCulla, of Cherokee, and Healy, Burnquist & Thomas, of Ft. Dodge, for appellee.

LADD, J.

The plaintiff, with several others, were shippers of live stock over defendant's road from Cherokee county to Chicago, Ill., December 17, 1911, and were accompanying the stock as caretakers on transportation furnished by defendant company. The caboose in which they rode was somewhat crowded, and when they reached Ft. Dodge at 3 o'clock a. m. they obtained a lunch, and later boarded a passenger train, which was about to leave for their destination. The conductor informed them they must have tickets, and that their transportation on the stock train would not be received, and that they should get off and get tickets. In the absence of any response, he said, “Must I get an officer and put you off?” and then went out and returned with defendants Core and Gressley, whereupon the conductor directed them to put the 11 or 12 stockmen, including plaintiff, off. One of them was assisted and with him all started for the exit. There was some parley about plaintiff going back for his overcoat, and when he reached the platform he backed from the car and was trying to put an overshoe on, when, according to his story, Core put his hands on his shoulder and pushed him down the steps, he striking the brick walk with his shoulder and head, and they then pounded him with their billies and otherwise mistreated him. On the other hand, the evidence tended to show that plaintiff resisted at the door, and that Core acted in self-defense. Core and Gressley had been sworn in as policemen by the police judge and given billies and stars by the chief of police, but were employed by the defendant company in guarding its property from 6 o'clock p. m. to 6 o'clock a. m. They had completed the watch and were in a shop on their way home when met by the conductor and the assistant trainmaster, who, ignorant of their relation to the company, and supposing them to be policemen, arranged with them to eject the plaintiff and others from the train, which they did under the direction of the conductor, as stated.

[1] It will thus be seen that the wrongs, if any, done to plaintiff, were by the defendantsCore and Gressley, and the company is liable therefore, if at all, only (1) because of its being responsible as their superior as principal or master, they being agents or servants, or (2) because of a breach of its duty to protect passengers against the wrongs, if any, such as they committed. It may be conceded that, as a carrier of passengers, the company was required to exercise toward plaintiff the highest degree of care for his safety and protection (though it is doubtful whether he ever became a passenger). Ray v. Railway, 144 N. W. 1018. But if remiss therein, and there was a breach of this duty, it was in directing Core and Gressley to commit on him the wrongs complained of. These were the only ones from which plaintiff claimed to have suffered, and, if no wrongs were committed by them, then nothing remained for which the company could have been held responsible. The jury, however, returned a verdict for defendants Core and Gressley but against the company. The latter moved that judgment be entered in its favor because of the exoneration of the other defendants. The motion was overruled. Thereupon the company moved for a new trial, and this motion was overruled, and judgment entered on the verdict in favor of Core and Gressley and against the company. Counsel for the company contend that the exoneration of its codefendants necessarily relieves it of all responsibility, and that there was error in assessing against it any damages whatever. It seems impossible to avoid this conclusion. The responsibility of the company was necessarily dependent upon the culpability of its codefendants, who were the immediate actors. And yet, in the same action by the same plaintiff for the same wrongs, they were adjudged not culpable, and the company adjudged culpable, though it was without fault, save as responsible for the acts of its codefendants. The trial proceeded on the theory that it was essential, in order to recover, that the jury find Core and Gressley to have been employés or agents of the company. If they were such, then the company was only liable as their superior, and not because of anything it did by or through any other.

As said in Doremus v. Root, 23 Wash. 715, 63 Pac. 574, 54 L. R. A. 649:

“Joint tort-feasors are liable to the injured person (other than that he may have but one satisfaction), as if the act causing the injury was the separate act of each of them, and they have, except in certain special cases, no right of contribution among themselves. But the defendants in this character of actions are in no sense joint tort-feasors, nor does their liability to the plaintiff rest on the same or like grounds. The act of an employé even in legal intendment, is not the act of his employer, unless the employer either previously directs the act to be done or subsequently ratifies it. For injuries caused by the negligent act of an employé not directed or ratified by the employer, the employé is liable because he committed the act which caused the injury, while the employer is liable, not as if the act was done by himself, but because of the doctrine of respondeat superior--the rule of law which holds the master responsible for the negligent act of his servant, committed while the servant is acting within the general scope of his employment and engaged in his master's business. The primary liability to answer for such an act, therefore, rests upon the employé, and, when the employer is compelled to answer in damages therefor, he can recover over against the employé.”

The principle so clearly expressed has been approved by this court in White v. International Text-Book Co., 150 Iowa, 27, 129 N. W. 338, followed in Dunshee v. Standard Oil Co., 146 N. W. 834, and is sustained by the overwhelming weight of authority. Portland Gold Mining Co. v. Stratton's Independence, Limited, et al., 158 Fed. 63, 85 C. C. A. 393, 16 L. R. A. (N. S.) 677;Hill v. Bain, 15 R. I. 75, 23 Atl. 44, 2 Am. St. Rep. 873;Doremus v. Root, 23 Wash. 710, 63 Pac. 572, 54 L. R. A. 649;Anderson v. Fleming, 160 Ind. 597, 67 N. E. 443, 66 L. R. A. 119;King v. Chase, 15 N. H. 9, 41 Am. Dec. 675;Gardner v. Railway, 65 S. C. 341, 43 S. E. 816;McGinnis v. Railway, 200 Mo. 347, 98 S. W. 590, 9 L. R. A. (N. S.) 880, 118 Am. St. Rep. 661, 9 Ann. Cas. 656;Hayes v. Chicago Tel. Co., 218 Ill. 414, 75 N. E. 1003, 2 L. R. A. (N. S.) 764;Ferguson v. Truax, 132 Wis. 478, 111 N. W. 657, 112 N. W. 513, 14 L. R. A. (N. S.) 350, 13 Ann. Cas. 1092;Muntz v. Railway Co., 116 La. 236, 40 South. 688;C., St. P., M. & O. Ry. v. McManigal, 73 Neb. 580, 103 N. W. 305, 107 N. W. 243.

Where the real actor (who is none the less liable personally because acting for another) is not guilty, it necessarily follows that the party for whom he acted cannot be. In Sparrow v. Bromage, 83 Conn. 27, 74 Atl. 1070, 27 L. R. A. (N. S.) 209, 19 Ann. Cas. 796, the verdict was against two tort-feasors, and it was set aside as against one and allowed to stand against the other, against whom the evidence was sufficient. The general rule is that where one has received an actionable injury at the hands of two or more persons acting in...