Marks v. Alaska S.S. Co.

• Decision Date: 25 November 1912
• Citation: 71 Wash. 167,127 P. 1101
• Parties: MARKS v. ALASKA S. S. CO.
• Court: Washington Supreme Court

127 P. 1101

71 Wash. 167

MARKS v. ALASKA S. S. CO.

Supreme Court of Washington

November 25, 1912

Department 1. Appeal from Superior Court, King County; Wilson R. Gay Judge.

Action by Thomas F. Marks against the Alaska Steamship Company. From a judgment for plaintiff, defendant appeals. Affirmed.

Bogle, Graves, Merritt & Bogle, of Seattle, for appellant.

Wm Parmerlee and P. D. Hughes, both of Seattle, for respondent.

CHADWICK J.

Plaintiff was a passenger on one of the defendant's boats plying between the city of Seattle and Alaska ports. One Hardy was an employé of the defendant company, a steerage waiter. Plaintiff and Hardy had some words in the first-class smoking room of the ship, followed by an assault on Hardy's part. Plaintiff was painfully and possibly seriously hurt. The combatants being separated by the purser of the ship, Hardy was ordered below, and plaintiff admonished to go below and have his wounds dressed. After some demur, he started to go out of the saloon, when he was met by Hardy, who had threatened to return and 'get' him, and was by him assaulted with an iron rod about two feet long and of the size of a man's finger. From a verdict in favor of plaintiff, defendant has appealed.

Motions for a directed verdict and a new trial were interposed, and their disposition is assigned as error. Inasmuch as these rulings depend upon a discussion of the two remaining assignments, they will not be further noticed. It is first contended that, inasmuch as Hardy was out of his place--that is, not engaged at the time in the performance of the particular duties to which he was assigned--the company is not liable; and further that, if Hardy was not engaged in the discharge of any of his duties and acted towards plaintiff 'through malicious or vengeful feelings, the company is not liable, unless it or its officers failed to afford the plaintiff proper protection after receiving knowledge of the assault upon him, or had reasonable opportunity to receive such knowledge'; or, in other words, the appellant is only liable in case it was negligent in affording protection to the passenger after the assault was made, it being admitted that the particular duties assigned to Hardy did not take him to the smoking room occupied by first-class passengers. Appellant admits that 'As against the assaults and violence of his servants the passenger has the right to claim an absolute protection, and the carrier will undoubtedly be held responsible for any unnecessary personal abuse or violence of which they may be guilty in their treatment of the passenger whilst engaged in the discharge of their assigned and appropriate duties, although such abuse may consist in an assault or battery upon the person of the passenger, and may be wholly unauthorized by the carrier and prompted by the vindictive feelings of the servant towards the passenger.' 2 Hutchinson on Carriers (3d Ed.) § 1093.

It is undoubtedly the rule that a carrier is ordinarily not responsible for the tortious acts of his servants unless the servant is engaged in the contract of carriage, or, as said above, 'in the discharge of their assigned and appropriate duties'; but we cannot hold that the testimony brings appellant within the rule just quoted.

Hardy was a servant upon the ship, and it was his duty at all times to treat the passengers with respect. Appellant by the act of employment vouched for his deportment during the voyage. A carrier owes a duty to every passenger to protect them from insult and assault. It is a part of the contract of carriage. Caldwell v. Northern Pacific Ry. Co., 56 Wash. 223 105 P. 625. As long...