Johnston v. Chi., St. P., M. & O. Ry. Co.

• Decision Date: 29 January 1907
• Citation: 110 N.W. 424,130 Wis. 492
• Court: Wisconsin Supreme Court
• Parties: JOHNSTON v. CHICAGO, ST. P., M. & O. RY. CO.

130 Wis. 492

110 N.W. 424

JOHNSTON

v.CHICAGO, ST. P., M. & O. RY. CO.

Supreme Court of Wisconsin.

Jan. 29, 1907.

Appeal from Superior Court, Douglas County; C. Smith, Judge.

Action by William Johnston, by guardian, against the Chicago, St. Paul, Minneapolis & Omaha Railway Company. From a judgment in favor of plaintiff, defendant appeals. Affirmed.

This action was brought by the plaintiff, a minor, through his guardian against the defendant to recover for an assault and false imprisonment. The plaintiff on November 19, 1904, with some other boys, was playing on or near the right of way of defendant, and while one of the passenger trains was passing one of the boys threw a stick at it, striking the trucks of one of the cars. The following afternoon one Gallagher, a watchman of the defendant, went to the home of plaintiff, placed his hand on plaintiff's shoulder and said he wanted to talk with him; they went around in front of the house and Gallagher asked plaintiff to go to jail, whereupon the boy broke away and ran to the house. Gallagher followed, threatening to shoot him, finally caught him, and asked him if he was the boy who threw the stick at the train, which the boy denied. Gallagher afterwards took him to the house of one of the other boys who was present at the time the stick was thrown, then took him to the city hall, where he was questioned relative to throwing the stick, and also in reference to stealing coal. It is claimed by plaintiff that Gallagher was acting within the scope of his authority, and therefore defendant is liable for such assault and false imprisonment. The complaint alleges, in substance, that defendant maliciously and with intent to injure plaintiff, with force and arms, assaulted him, and then and there directed and caused him to be seized and laid hold of with force and violence, and then and there, without any reasonable or probable cause whatever, and without any writ, warrant, or legal process of any kind for so doing and against the will of plaintiff, unlawfully, wrongfully, and maliciously took him and forced and compelled him to go in and along divers streets in the city of Superior, to the rooms occupied by the police department, and then and there against the will of plaintiff unlawfully, wrongfully, maliciously, and falsely imprisoned him for about one hour, and then and there confined him in said room and restrained him of his liberty, without any writ, warrant, or legal process, against the will of plaintiff. Defendant denied generally the allegations of the complaint. The case was tried by the court and a jury and the jury found for the plaintiff in the sum of $250. Judgment was rendered upon the verdict, from which this appeal was taken.Solon L. Perrin and Nelson J. Wilcox (Thomas Wilson, of counsel), for appellant.

George C. Cooper and George E. Dietrich, for respondent.

KERWIN, J. (after stating the facts).

The errors relied upon by appellant and discussed raise the following questions: (1) Whether the night watchman, Gallagher, had authority to investigate the matter of throwing the stick at defendant's car; and (2) whether Gallagher was acting within the scope of his authority when he arrested and imprisoned the plaintiff. Whether Gallagher was acting within the scope of his duty and had authority to protect passenger cars was submitted to the jury. The jury were instructed that, if they found it was the duty of Gallagher to look after passenger cars, his authority embraced efforts to discover offenders whose prosecution was possible. It is conceded that Gallagher was employed by defendant as watchman at the Superior yard, where the alleged offense under investigation was claimed to have been committed. There is evidence that it was part of his duties to prevent property from being stolen, and see that property was not damaged. The evidence also shows that the general agent, Grochau, instructed Gallagher to investigate and report on the matter of throwing at the train. It is contended, however, by appellant that Grochau had no authority to employ Gallagher to investigate, and that Gallagher's acts in that regard were not within the scope of his duty as agent of defendant. The point is made by counsel for defendant that Grochau had no authority to hire or discharge men only for the purpose of handling freight and baggage and selling tickets, and that Gallagher was hired through authority from defendant's superintendent. It is true that the superintendent by letter instructed Grochau to employ a watchman at a fixed rate per day, but the duties of the watchman were not specifically defined by the superintendent. The fact that Grochau had no authority without instruction from the superintendent to hire or discharge a watchman did not interfere with his right to use such servant under his supervision for the purpose of aiding him in the performance of his duties. Aside from the fact that Grochau testified to his authority to investigate matters of injury to passenger cars, and his general duties in that regard, the question of Gallagher's authority to look after the safety of the car in question was submitted to the jury, and the jury were told that, if Gallagher did not have such authority, plaintiff could not recover. So the authority of Gallagher to look after the safety of the car in question, we think, is established upon sufficient evidence by the verdict of the jury. It is also conclusively established by the evidence that Gallagher made the investigation under Grochau and as his subordinate. So we come to the question of the authority of Grochau to authorize such investigation. The evidence is that Grochau was general agent at Superior, and had authority to look after the safety and protection of passenger cars, and to look after and investigate any damage done to them; that he had at times looked after matters of damage to property of defendant and had made investigation and reported to his superior officers; that he made investigation respecting injury to defendant's property, sometimes himself and sometimes through subordinates, and did not get special authority from his superior officers for each investigation, but had such authority as general agent, and had general supervision of the office of the company and its depot at Superior. It seems clear from the undisputed evidence that Grochau as general agent of the company had authority to cause the investigation in question to be made, and could make the investigation himself, or take to his assistance the watchman, Gallagher.

The principal error complained of is the charge to the jury to the effect that, if they found it was Gallagher's duty to look after passenger cars, such authority embraced the effort to discover offenders whose prosecution was possible, and, if such acts were done by Gallagher in way of examining into the case for the purpose of discovering the offenders, they were within the scope of his authority, provided he had authority to protect passenger cars. This portion of the charge is severely criticised by counsel for appellant, on the ground that it in effect stated to the jury that authority to an agent to “protect and look after” his master's property rendered the master liable for acts similar to those complained of in...