Kinnomen v. Great Northern Ry. Co.

• Citation: 158 N.W. 1058,34 N.D. 556
• Decision Date: 01 June 1916
• Docket Number: 1915
• Court: United States State Supreme Court of North Dakota

158 N.W. 1058

34 N.D. 556

PETER KINNONEN v. GREAT NORTHERN RAILWAY COMPANY

No. 1915

Supreme Court of North Dakota

June 1, 1916

Action against employer for assault and battery committed by employee.

Appeal from the District Court of Nelson County, Chas. M. Cooley, J Judgment for plaintiff. Defendant appeals.

Reversed.

Judgment of the District Court reversed and a new trial ordered.

Murphy & Toner, for appellant.

While the theory of liability entertained by counsel for plaintiff was not disclosed upon the trial, it is inferred that they contend that § 10591, Comp. Laws, settles the company's responsibility for the acts of its employees while performing the duties of peace officers. This law really means nothing of the kind. Comp. Laws 1913, § 10573; Healey v. Lothrop, 171 Mass. 263, 50 N.E 540, 4 Am. Neg. Rep. 283; Sharp v. Erie R. Co. 184 N.Y. 100, 76 N.E. 923, 6 Ann. Cas. 250, 19 Am. Neg. Cas. 448; Golden v. Newbrand, 52 Iowa 59, 35 Am. Rep. 257, 2 N.W. 537; Candiff v. Louisville, N. O. & T. R. Co. 42 La.Ann 477, 7 So. 601.

If a special deputy sheriff paid by a street railway company were acting solely in his capacity as an officer in assaulting a passenger, and not by direction of the conductor in charge of a car, the street railway company is not liable for the act. Foster v. Grand Rapids R. Co. 140 Mich. 689, 104 N.W. 380, 18 Am. Neg. Rep. 479; Holler v. Ross, 68 N.J.L. 324, 59 L.R.A. 943, 96 Am. St. Rep. 546, 53 A. 472; Waaler v. Great Northern R. Co. 18 S.D. 420, 70 L.R.A. 731, 112 Am. St. Rep. 794, 100 N.W. 1097, 17 Am. Neg. Rep. 131.

A general manager of a mercantile establishment authorized to collect for his store, assaulted a customer to whom he had gone to make a collection,--held, that the merchant was not liable, the assault being outside the authority conferred on the manager. Matsuda v. Hammond, 77 Wash. 120, 51 L.R.A. (N.S.) 920, 137 P. 328; Cooley, Torts, 2d. ed. p. 628; Franklin F. Ins. Co. v. Bradford, 201 Pa. 32, 55 L.R.A. 408, 88 Am. St. Rep. 770, 50 A. 286; Bowen v. Illinois C. R. Co. 70 L.R.A. 915, 69 C. C. A. 444, 136 F. 311, 18 Am. Neg. Rep. 289.

But if the master's business is done, or is taking care of itself, and the servant commits an assault out of personal spite, the master is not liable. Haehl v. Wabash R. Co. 119 Mo. 325, 24 S.W. 737; Bowen v. Illinois C. R. Co. 70 L.R.A. 915, 69 C. C. A. 444, 136 F. 313, 18 Am. Neg. Rep. 289.

Where an officer makes an arrest and fails to protect the prisoner from assault and injury, it cannot be said that any outside third party may be held responsible in damages. The special officer here who made the arrest, and had the prisoner in charge, was not at that time engaged upon any other business,--especially was he not engaged in protecting the railway company's property, or, upon any other enterprise involving his duties as an employee of the company. Dickson v. Waldron, 135 Ind. 507, 24 L.R.A. 483, 41 Am. St. Rep. 440, 34 N.E. 507, 35 N.E. 1; Jardine v. Cornell, 50 N.J.L. 485, 14 A. 590; Hershey v. O'Neill, 36 F. 168; Galehouse v. Minneapolis, St. P. & S. Ste. M. R. Co. 22 N.D. 615, 47 L.R.A. (N.S.) 965, 135 N.W. 189; Tolchester Beach Improv. Co. v. Steinmeier, 72 Md. 313, 8 L.R.A. 846, 20 A. 189.

If we assume that the special agent was acting for defendant at the time, the only theory upon which the evidence offered was admissible was that it was a statement against interest, and even then, it came too late to be admissible. Our specific objection to this evidence is that it did not constitute an admission against interest. 2 Jones, Ev. pp. 490, 491.

"Where there is a question as to whether any act was done by any person, the following facts are deemed to be relevant: Any fact which supplies a motive or which constitutes preparation for it. Equally familiar is the practice of proving as parts of the chain of evidence, the opportunity, preparation, motive, desire, or intention of the party to do the act in question." Jewett v. Banning, 21 N.Y. 27; Bruner v. Wade, 84 Iowa 698, 51 N.W. 251.

Frich & Kelly, for respondent.

The rule is that if, while engaged in executing the employment of his principal, the servant so conducts himself, whether negligently or maliciously so as to injure another, the principal will be liable. Galehouse v. Minneapolis, St. P. & S. Ste. M. R. Co. 22 N.D. 624, 47 L.R.A. (N.S.) 965, 135 N.W. 189; Haehl v. Wabash R. Co. 119 Mo. 325, 24 S.W. 737; Dickson v. Waldron, 135 Ind. 507, 24 L.R.A. 483, 41 Am. St. Rep. 440, 34 N.E. 506, 35 N.E. 1; Holler v. Ross, 68 N.J.L. 324, 59 L.R.A. 943, 96 Am. St. Rep. 546, 53 A. 472.

In a case where a depot agent, though present, failed to interfere and protect a patron from an assault by his subordinate, the company was held liable. Dickson v. Waldron, 135 Ind. 507, 24 L.R.A. 483, 41 Am. St. Rep. 440, 34 N.E. 506, 35 N.E. 1; Galehouse v. Minneapolis, St. P. & S. Ste. M. R. Co. 22 N.D. 624, 47 L.R.A. (N.S.) 965, 135 N.W. 189; Deck v. Baltimore & O. R. Co. 100 Md. 168, 108 Am. St. Rep. 399, 59 A. 652; Gillon v. Wilson, 3 T. B. Mon. 217.

"Each of such railway or railroad companies or receiver thereof is and shall be held responsible for the acts of all conductors or other persons employed by it while acting as peace officers under the provisions of this article, to the same extent as for the acts of its general agents or employees." Taylor v. New York & L. B. R. Co. 80 N.J.L. 282, 39 L.R.A. (N.S.) 122, 78 A. 169.

It is held that such special officers are primarily agents of the railway company, and that the latter is liable for acts committed by them in excess of the authority conferred by the statute. Sharp v. Erie R. Co. 184 N.Y. 100, 76 N.E. 923, 6 Ann. Cas. 250, 19 Am. Neg. Cas. 448; King v. Illinois C. R. Co. 69 Misc. 245, 10 So. 42; Rand v. Butte Electric R. Co. 40 Mont. 398, 107 P. 87; 6 Labatt, Mast. & S. § 2478; Illinois Steel Co. v. Novak, 184 Ill. 501, 56 N.E. 966; Eichengreen v. Louisville & N. R. Co. 96 Tenn. 229, 31 L.R.A. 702, 54 Am. St. Rep. 833, 34 S.W. 219; Duggan v. Baltimore & O. R. Co. 159 Pa. 248, 39 Am. St. Rep. 672, 28 A. 182, 186; Union Depot & R. Co. v. Smith, 16 Colo. 361, 27 P. 329; Higby v. Pennsylvania R. Co. 209 Pa. 452, 58 A. 858; Deck v. Baltimore & O. R. Co. 100 Md. 168, 108 Am. St. Rep. 399, 59 A. 652; Southwestern Portland Cement Co. v. Reitzer, Tex. Civ. App. , 135 S.W. 237; Brewster v. Interborough Rapid Transit Co. 68 Misc. 348, 123 N.Y.S. 992; Parke v. Fellman, 145 A.D. 836, 130 N.Y.S. 361; Hedge v. St. Louis & S. F. R. Co. 164 Mo.App. 291, 145 S.W. 115.

The difference between the statute of this state, and the statutes of the states from which counsel cite authorities as sustaining their contention, has apparently been lost sight of, and accounts for their misinterpretation of the law applicable. Healey v. Lothrop, 178 Mass. 151, 86 Am. St. Rep. 471, 59 N.E. 653; Horgan v. Boston Elev. R. Co. 208 Mass. 287, 94 N.E. 386; Hirst v. Fitchburg & L. Street R. Co. 196 Mass. 353, 82 N.E. 10; Krulevitz v. Eastern R. Co. 143 Mass. 228, 9 N.E. 613; Jardine v. Cornell, 50 N.J.L. 485, 14 A. 590, and cases cited.

That such an employee may be properly regarded as one whose ordinary duties include the protection of the cars against the intrusion of trespassers would seem to constitute a satisfactory basis for such presumption. Dixon v. Northern P. R. Co. 2 Ann. Cas. 620, and note, 37 Wash. 310, 68 L.R.A. 895, 107 Am. St. Rep. 810, 79 P. 943; Texas & P. R. Co. v. Mother, 5 Tex. Civ. App. 87, 24 S.W. 79; Smith v. Louisville & N. R. Co. 95 Ky. 11, 22 L.R.A. 72, 23 S.W. 652; Southern P. R. Co. v. James, 118 Ga. 340, 63 L.R.A. 257, 45 S.E. 303, 15 Am. Neg. Rep. 269; Hayes v. Southern R. Co. 141 N.C. 195, 53 S.E. 847; O'Banion v. Missouri P. R. Co. 65 Kan. 352, 69 P. 353; Philadelphia, B. & W. R. Co. v. Green, 110 Md. 32, 71 A. 986; Tyson v. Joseph H. Bauland Co. 186 N.Y. 397, 9 L.R.A. (N.S.) 267, 79 N.E. 3; 26 Cyc. 1576, note 18, and cases cited.

The "errors of law on the trial," discussed by counsel, were not referred to during the argument upon the motion for a new trial, and are not properly before this court for decision. Northern Shoe Co. v. Cecka, 22 N.D. 631, 135 N.W. 177; Galehouse v. Minneapolis, St. P. & S. Ste. M. R. Co. 22 N.D. 624, 47 L.R.A. (N.S.) 965, 135 N.W. 189; Dixon v. Northern P. R. Co. 37 Wash. 310, 68 L.R.A. 895, 107 Am. St. Rep. 810, 79 P. 943, 2 Ann. Cas. 620; Puls v. Grand Lodge, A. O. U. W. 13 N.D. 559, 102 N.W. 165, and cases cited; 5 Thomp. Corp. § 6299, and cases cited.

It is established that plaintiff's injuries are severe and permanent, and, considering his youth, the verdict is not excessive. Rand v. Butte Electric R. Co. 40 Mont. 398, 107 P. 87; Dowd v. McGinnity, 30 N.D. 308, 152 N.W. 524; Carpenter v. Dickey, 26 N.D. 184, 143 N.W. 964.

BRUCE, J. CHRISTIANSON, J. (dissenting).

OPINION

Statement of facts by BRUCE, J.:

This is an action to recover damages for an assault committed by a brakeman and special peace officer who were employed by the defendant railway company, and the duty of both of whom, as far as the defendant was concerned, involved the protection of the property of the company and the keeping of trespassers therefrom.

The complaint alleges:

That under the authority conferred by article 8 of chapter 6 § 9750 of the Code of Criminal Procedure of this state, the defendant Great Northern Railway Company, on or about January 1, 1914, appointed the defendant N. P. Nissen as a peace officer, and authorized him to act as such in the protection of its property and in the preservation of order upon its premises and in or about its depots, grounds, yards, buildings, and other structures within this state, and that by virtue of such employment the defendant N. P. Nissen became, and at the date hereinafter...