Kemp v. The Chicago

• Decision Date: 07 February 1914
• Docket Number: 18,569
• Citation: 138 P. 621,91 Kan. 477
• Parties: IDA M. KEMP, as Next of Kin, etc., Appellee, v. THE CHICAGO, ROCK ISLAND AND PACIFIC RAILWAY COMPANY, Appellant
• Court: Kansas Supreme Court

138 P. 621

91 Kan. 477

IDA M. KEMP, as Next of Kin, etc., Appellee, v. THE CHICAGO, ROCK ISLAND AND PACIFIC RAILWAY COMPANY, Appellant

No. 18,569

Supreme Court of Kansas

February 7, 1914

Decided January, 1914

Appeal from Smith district court; RICHARD M. PICKLER, judge.

Judgment reversed.

SYLLABUS

SYLLABUS BY THE COURT.

1. TRESPASSER--Killed by Employee--Liability of Company--When Question of Fact--When Question of Law. Where different persons might reasonably draw different inferences and reach opposing conclusions from undisputed facts the proper inference or conclusion is one of fact for a jury, but where only one reasonable inference can be drawn, or deduction made, a question of law only is presented.

2. SAME. An employer may be held liable for the wrongful acts of his employee done in the scope of his employment. While it is difficult to define this expression with precision, as applied to all situations, it may be said generally that to fix liability upon the employer the act must not only be done in the time but in pursuance of the objects of the employment and in furtherance of duty. If done solely to accomplish the employee's own purpose or device, although in an interval of his regular service, the employer is not liable.

Paul E Walker, and Luther Burns, both of Topeka, for the appellant.

A. W. Relihan, of Smith Center, for the appellee.

Benson J. Benson, J. dissenting.

OPINION

BENSON, J.:

This is an action to recover damages for the death of the plaintiff's minor son killed by the defendant's brakeman.

The material facts are that the plaintiff's son, Doan Kemp, and two other young men, trespassing on one of the defendant's trains, rode from Lebanon to Bellaire without paying fare. When the train stopped at Bellaire, about 10 o'clock P. M., they alighted and stood together on the platform, intending to board it again and ride farther west, still beating their way. Their purpose in stepping off was that they might get together upon the train when it moved on. As they were standing about six feet from the car next to the tender, waiting for the train to start, a brakeman, taking a revolver from the baggage car, started toward them, and when he was about eight feet away said, with an oath: "Get out of here." Whereupon they ran south and up the bank of the cut in which the train was standing. The bank was from ten to twenty feet from the car, and was eight to ten feet high. On reaching the top of the bank one of them shouted, "Go to hell." The brakeman exclaimed, "What's that?" and started after them, climbed up the bank, ran a little way after them, and fired a shot, mortally wounding Doan in the back as he, with his companions, was running southwest. Doan was forty-two feet from the train when he was shot. The railroad extends east and west through the cut at Bellaire, and this train was west-bound. The conductor, called by the plaintiff, testified to the duties of a brakeman:

"Q. State to the jury whose duty it is to keep trespassers and bums away from the train and who ride thereon without pay. A. Why any member of the crew.

"Q. That was the duty of the brakeman was it? A. Yes sir. . . .

"Q. You had authority to use force if it was necessary? A. Yes sir."

There was some evidence of an encounter between the brakeman and the trespassers, but the jury found to the contrary, and their findings, supported by competent testimony, establish the facts as stated. The defendant offered no evidence.

On a demurrer to the evidence the question was presented whether upon these facts the company was liable for the wrongful act of the brakeman in firing the fatal shot. This question again arises upon the finding of the jury and must be decided upon this appeal. Preliminary to that decision, however, is the all-important inquiry whether there was a question of fact for the jury to decide, or whether a question of law only was presented. The rule of law upon this inquiry was thus stated in an early case:

"Where the facts are disputed, negligence is a question of fact for the jury; where the facts are undisputed, and but one deduction is to be drawn from them, it presents a question of law for the courts; but where the facts are undisputed, but are of such a nature that different minds will draw different conclusions from them as to the reasonableness and care of a party's conduct, it is a proper question for the determination of a jury." ( K. P. Rly. Co. v. Pointer, 14 Kan. 37, syl. P 8.)

Other statements of the principle have been made but the rule has not been departed from. (Dewald v. K. C. Ft. S. & G. Rld. Co., 44 Kan. 586, 24 P. 1101; Beaver v. A. T. & S. F. Rld. Co., 56 Kan. 514, 43 P. 1136; Chanute v. Higgins, 65 Kan. 680, 70 P. 638; Railway Co. v. Hanson, 67 Kan. 256, 72 P. 773; Cummings v. Railroad Co., 68 Kan. 218, 74 P. 1104; Railroad Co. v. Brown, 73 Kan. 233, 84 P. 1026; Johnson v. Railroad Co., 80 Kan. 456, 103 P. 90; Smith v. Street Railway Co., ante, p. 31, 136 P. 930.)

The evidence shows that one of the duties required of the brakeman by his employer was to eject trespassers and to keep them from riding on trains, and it seems that brakemen are presumed to have this authority. (K. C. Ft. S. & G. Rld. Co. v. Kelly, 36 Kan. 655, 14 P. 172; U. P. Rly. Co. v. Mitchell, 56 Kan. 324, 43 P. 244; O'Banion v. Railway Co., 65 Kan. 352, 69 P. 353.)

In the Kelly case it was held that:

"It is within the scope of the general authority of a brakeman on a freight train to prevent trespassers from getting on the train, and to remove such persons who wrongfully get thereon." (Syl. P 2.)

A brakeman having authority to prevent trespassers from entering the train while performing that duty is engaged in the business of the company, or according to the usual phrase, acting in the scope of his employment. While so acting the company may be held liable for his wrongful acts. In order to create this liability it has been said:

"The act must be the result of doing the business of the master or parent, and not of an independent act done during a cessation, even momentary, of the doing of such business." (Mirick v. Suchy, 74 Kan. 715, 718, 87 P. 1141.)

It is not sufficient to fix this liability that the employment afforded the opportunity to do the wrong, or that it was done during the employment, but it must be done in the course or within the scope of the employment. (Hudson v. M. K. & T. Rly. Co., 16 Kan. 470.) This is true although the act was intended to promote the master's interest. ( Crelly v. Telephone Co., 84 Kan. 19, 23, 113 P. 386.) In the following quotation from 26 Cyc. 1526, appearing in the case last cited, an endeavor is made to state the test of liability in such cases:

"The test is not the character of the act, nor whether it was done during the existence of the servant's employment; but whether the injury complained of was committed by the authority of the master expressly conferred or fairly implied in the nature of the employment and the duties incident to it."

The test is also considered in 1 Thompson's Commentaries on the Law of Negligence, § 526, in which the distinction is stated between acts done by the servant in pursuing his own ends, although done in the time covered by his employment, and those done in pursuance of his duty in the course of his employment. The author gives a quotation from the opinion in Morier v. St. Paul, Minneapolis & Manitoba Ry. Co., 31 Minn. 351, 17 N.W. 952, a part of which is:

"'If the servant step aside from his master's business, for however short a time, to do an act not connected with such business, the relation of master and servant is for the time suspended. Such, variously expressed, is the uniform doctrine laid down by all authorities. (p. 353.)'" (1 Thompson's Commentaries on the Law of Negligence, § 526.)

Another author says:

"The simple test is, whether they were acts within the scope of his employment; not whether they were done while prosecuting the master's business; but, whether they were done by the servant in furtherance thereof, and were such as may fairly be said to have been authorized by him." (Master & Servant, Wood, 2d ed., § 307.)

It is difficult to state with precision the exact meaning of the phrase "scope of the employment" but from the foregoing expressions in decisions and textbooks it may be said generally that to fix liability upon the master or employer the act must not only be done in the time, but in pursuance of the objects of the employment, in furtherance of duty. If done solely to accomplish the employee's own purpose or device, although in an interval of his regular service, the employer is not liable.

The application of the principles just stated remains. If upon the facts found and undisputed different minds might reasonably draw the conclusion that in pursuing the fleeing...