Holler v. P. Sanford Ross

• Decision Date: 17 November 1902
• Citation: 53 A. 472,68 N.J.L. 324
• Parties: HOLLER v. P. SANFORD ROSS.
• Court: New Jersey Supreme Court

53 A. 472

68 N.J.L. 324

HOLLER

v. P. SANFORD ROSS.

Court of Errors and Appeals of New Jersey.

Nov. 17, 1902.

(Syllabus by the Court.)

Error to circuit court, Hudson county.

Action by John Holler against P. Sanford Ross, a corporation. Judgment for plaintiff (50 Atl. 342) and defendant brings error. Reversed.

On the night of January 16, 1900, the plaintiff was shot in the face and back by the servant of the defendant. One of the results of the shooting was the loss of the plaintiff's eye. The defendant was the owner of certain personal property stored upon a wharf called by the witnesses a "dock," which is situate upon the Jersey side of the Hudson river, near Ft. Lee. The shooting occurred at about 6 p. m. It was dark. The defendant did not own the wharf, and its personal property was only upon a part of the property. The servant was employed to watch the property of the defendant upon the wharf,— to take care of it and see that it was not stolen. On the day of the shooting, prior to the time of shooting, three men had been to the wharf, and been driven away by the defendant's servant; and the men, as the plaintiff's case shows, had threatened to return and kill the defendant's servant. The same night the plaintiff, with two other men, came to the wharf in a boat, and tied it, and climbed up the crib work upon it, and began to move around upon the filled work at the river front, and back upon other parts of the property. The defendant's servant saw them, and surmised they were, or might be, the same three men who had been there before on that day, in a boat, and who had threatened to kill him. He armed himself with a shotgun which he had upon the premises to shoot game, but which gun was not his master's, nor had it been furnished by his master, nor was the gun brought to the premises with his master's consent or knowledge. The servant testified for the plaintiff that he had used the gun to kill game in the daytime, and had at times carried it at night. The servant further testified in the plaintiff's case, on the plaintiff's examination, as follows: "Q. For what purpose was it,—protection or what,—that you fired? A. I was the man to know their business on that dock during that hour in the night. Q. For whom did you want to know that? A. For myself; nobody else." The evidence of the person who owned the property, who was called by the plaintiff, was that the defendant was "merely allowed to use the dock property for storage, up to such time as I might rent the property or make use of it." Adolph Aspen, one of the men who was upon the wharf with the plaintiff, testified for the plaintiff: "Q. When he called 'hands up,' you three fellows all started to run? A. Yes, sir, I wasn't going to stand there like a monkey. I was scared, of course. I had four children and a wife home." It further appeared on direct examination in the plaintiff's case, in the testimony of the servant, Anderson, as follows: "Q. Tell us what happened, and what you saw, and what was done? A. Before I spoke to them, I told them to hold up their hands and stop, and I told them to stop two or three times, but they did not. They did not stop. When one of them answered me, he says, 'Which way do you want me to run?' I says, 'Don't run at all.' I says, 'Go on the dock and stand still, so I can see who you are.' I called to them again. I called to them about four times before I shot. Then I fired right straight over their heads. * * * Q. How many barrels? A. Only one the first time. Then I called to them three or four times again, and I went after them, and I shot again. Q. What did you do that for? A. I wanted them men to halt." Again the witness said: "Q. You told them to throw up their hands and stop. What did they do? A. Commenced to run." The plaintiff also testified that he, with his companions, were upon the wharf to get some wood to heat coffee, and were there only seven or eight minutes before he was shot. Plaintiff was at all times quite a distance from, if not, at the time of the shooting, running away from, the defendant's servant.

Bedle, Edwards & Lawrence, for plaintiff in error.

Young & Arrowsmith, for defendant in error.

FORT, J. (after stating the facts). There is but one question in this case, viz., is the defendant liable for the injuries done to the plaintiff by its servant, under the facts sel out at the head of this opinion? In an ac tion of tort, in the nature of an action on the case. Judge Hoar says the rule is that "the master is not responsible if the wrong done by the servant is done without his authority, and not for the purpose of executIng his orders or doing his work." Howe v. Newmareh, 12 Allen, 49, 57. The servant in this case was not employed to protect the wharf, but the personal property of the defendant upon a part thereof. The wharf itself did not belong to the defendant. A person employed to watch the personal property of a company, stored upon the real property of another, will not be deemed to be acting within the line of his duty if he shall shoot a person trespassing upon the realty because that person refuses to go off the premises, or to halt or throw up his hands, upon his command. If the person shot had the personal property, or some of it, in his possession, and refused to surrender it, or if he was in the act of taking it, and refused to desist when commanded so to do, and he was shot by the servant, even though the shooting were wanton and willful, the master might nevertheless be liable. But that is not this case. There is no proof in this case that the plaintiff, or those with him, were interfering in any way with the property of the defendant. They were simply upon the wharf to boil some coffee, and the servant of the defendant, without excuse or explanation, while they were engaged in gathering wood for this purpose or while they were in the act of running away, shot and injured the plaintiff. It is difficult to see how such shooting can in any way be distinguished from the shooting by any stranger who might have happened to be on the wharf and tried to drive the men therefrom. There is no proof in the record that it was any part of the duty of the defendant's servant to keep persons off the wharf. In fact, the implication is entirely the other way. He was to watch the personal property of the defendant, stored upon the wharf, to see that it was not taken away by persons who might come thereon for any lawful or other purpose. Even where a watchman is given by the master a revolver to use in guarding property, it is held In Golden v. Newbrand that the master is not liable for injuries caused to a person who has been upon the property, but who is, at the time the shot is fired, off the property, and fleeing away. In that case the court said: "To protect the brewery did not require Roenspeiss to shoot and kill a person who was retreating therefrom. The killing was not, therefore, done in the line of the duty Roenspeiss was employed to perform." Golden v. Newbrand, 52 Iowa, 59, 2 N. W. 537, 35 Am. Rep. 257. "It is immaterial whether or not the tortious act be committed while the agent is engaged in the rightful business of his employer, which he is attending to by his direction; for, if he transcends his authority while so engaged, his acts do not bind his employer unless sanctioned by him." Railroad Co. v. Harrison, 48 Miss. 112, 12 Am. Rep. 356. The case at bar is...