Mckain v. Baltimore & O. R. Co

• Citation: 64 S.E. 18,65 W. Va. 233
• Court: Supreme Court of West Virginia
• Decision Date: 02 March 1909
• Parties: McKAIN. v. BALTIMORE & O. R. CO.

64 S.E. 18

(65 W. Va. 233)

McKAIN.

v.BALTIMORE & O. R. CO.

Supreme Court of Appeals of West Virginia.

March 2, 1909.

1. Carriers (§ 283^*)—Liability for Injuries to Passengers—Special Police Officer— "Public Officer."

A special officer, appointed and commissioned by the Governor, at the instance of a railroad company, under the provisions of section 31, c. 145. Code 1899 (section 4281, Code 1906). and paid by such company for his services, is prima facie a public officer, for whose wrongful acts such company is not liable.

[Ed. Note.—For other cases, see Carriers, Dec. Dig. § 283.*

For other definitions, see Words and Phrases, vol. 8, pp. 7772, 7773.]

2. Carriers (§ 283*)—Injuries to Passengers —Relation of Parties—Special Police Officer.

If such an officer is engaged in special service for the company, such as guarding its property or enforcing obedience to its rules and regulations, and does a wrongful act for which the injured party is entitled to damages, and such act was within the scope of such service or employment, the company is liable as in the case of its regular employes, such as conductors and station masters.

[Ed. Note.—For other cases, see Carriers, Dec. Dig. § 283.*]

3. Carriers (§ 283*) — False Imprisonment (§ 15*) — Injuries to Passengers — Relation of Parties—Special Police Officer.

But the company is not liable for a false arrest, assault and battery, and malicious prosecution, not directed nor instigated by it, and founded upon an alleged breach of the peace at one of its stations, in no way affecting or Involving, so far as the evidence discloses, any of its property, rights, or servants, nor growing out of any transaction between the plaintiff and the company, although the plaintiff was rightfully in the station having a ticket and awaiting the arrival of a train, and the alleged breach of the peace, arrest, and assault and battery occurred on the premises of the company.

[Ed. Note.—For other cases, see Carriers, Dec. Dig. § 283;* False Imprisonment, Dec. Dig. § 15.^2-*]

4. Railroad Company Not Liable.

Evidence disclosing the facts and circumstances above stated, and nothing more, is insufficient to sustain a verdict against the railway company at whose instance the special officer was appointed, and by whom he was paid for his public services, and the trial court properly set it aside.

(Syllabus by the Court.)

Error to Circuit Court, Marion County.

Action by Charles J. McKain against the Baltimore & Ohio Railroad Company. There was a verdict for plaintiff, and, from an order setting the same aside and granting a new trial, he brings error. Affirmed.

Harry Shaw and C. H. Leeds, for plaintiff in error.

U. N. Arnett, Jr., and John Bassel, for defendant in error.

POFFENBARGER, J. Charles J. McKain complains of an order, made by the circuit court of Marion county, setting aside a verdict in his favor for $300, and awarding the defendant, the Baltimore & Ohio Railroad Company, a new trial in the case. The action is for damages for false arrest and imprisonment and assault and battery, alleged to have been committed by the defendant through its agents, and refusal to carry and transport the plaintiff, as it had contracted to do by selling him a ticket. The arrest was predicated on an alleged assault committed at the Fairmont station of the defendant upon Mrs. J. H. Downey, wife of the special officer who made the arrest. The evidence bearing on the question of probable cause therefor is highly conflicting, and renders it one clearly proper for jury determination. The plaintiff denies having molested the lady in any way, and she, her husband, and another man stoutly assert the contrary, saying he rudely pushed or shoved her as he passed them, while they were standing and engaged in conversation. It is hardly necessary to say this made a case proper for jury determination, if the railway company Is responsible for the acts done by Downey; the arrest, assault and battery, and imprisonment being regarded, agreeably to the finding of the jury, as having been inflicted without probable cause or justification. Downey was a special policeman, commissioned by the Governor of the state, by virtue of the authority vested in him by section 31 of chapter 145 of the Code of 1899 (Code 1906, § 4281), upon the application of the defendant, and employed and paid by it. He had qualified as such officer and filed a copy of his oath of office In the clerk's office of the county court of the county In which he made the arrest. His powers are thus defined In the section of the statute above named: "Every police officer appointed under the provisions of this act shall be a conservator of the peace within each county In which any part of said railroad may be situated, and in which such oath or a certified copy thereof shall have been filed with the clerk of the county court or other tribunal established in lieu thereof; and, In addition thereto, he shall possess and may exercise all the powers and authority, and shall be entitled to all the rights, privileges and Immunities, within such counties, as are now, or may hereafter be, vested In or conferred upon the regularly elected or appointed constables of said county." The statute also authorizes any railroad company at whose instance such an appointment has been made to dispense with the services of the officer by filing a notice to that effect, and thereupon his powers "cease and determine."

The reported decisions Indicate that statutes similar to ours, providing for the appointment of special police officers at the instance of corporations and payment by them for their services, have been passed in many of the states and construed by several of the courts. While no decision of this court deals with the identical questions presented, namely, the status of such an officer and the extent to which his employer is liable for his acts, the numerous decisions of other courts having persuasive authority with us render it comparatively easy to solve these questions. Such officers act in the opinion of the courts sometimes as servants of the company employing them, and sometimes as officers of the state. Deck v. Bait. & O. R. R. Co., 100 Md. 108, 59 Atl. 650, 108 Am. St. Rep. 399; Foster v. Grand Rapids Ry. Co., 140 Mich. 689, 104 N. W. 380; Brill v. Eddy, 115 Mo. 596, 22 S. W. 488; Dickson v. Waldron, 135 Ind. 507, 34 N. E. 506, 35 N. E. 1, 24 L. R. A. 483, 488, 41 Am. St. Rep. 440; Sharp v. Erie Ry. Co., 184 N. Y. 100, 76 N. E. 923, 6 Am. & Eng. Ann. Cas. 250; Tyson v. Bauland Co., 186 N. Y. 397, 79 N. E. 3, 9 L. R. A. (N. S.) 267; Healey v. Lothrop, 171 Mass. 263, 50 N. E. 540; Tucker v. Erie Ry. Co., 69 N. J. Law, 19, 54 Atl. 557; Cordner v. Railway Co., 72 N. H. 413, 57 Atl. 234; Thomas v. Can. Pac. R. R, Co., 14 Ont. L. Rep. 55, 8 Am. & Eng. Ann. Cas. 324; Daniel v. Railroad Co., 136 N. C. 517, 48 S. E. 816, 67 L. R. A. 455, 1 Am. & Eng. Ann. Cas. 718. The import of these decisions is that such appointees, although paid for all their services by the persons at whose instances they are appointed, are not servants of such persons in respect to all the acts they perform by virtue of their offices; but only in respect to services rendered the company, such as defending or preserving its property. The line of distinction, sometimes hard to rec-ognize under the circumstances of the particular case, marks the point at which the act ceases to be one of service to the employer, and becomes one of vindication of public right or justice, the apprehension or punishment of a wrongdoer, not for the injury done to the employer, but to the public at large. Perhaps the clearest and best statement of it is that given by the eminent English Jurist Blackburn in Allen v. London, etc., Ry. Co., L. R. 6 Q. B. 65, as frequently quoted by the American courts: "There is a marked distinction between an act done for the purpose of protecting the property by preventing a felony or of recovering it back and an act done for the purpose of punishing the offender for that which has already been done. There is no implied authority in a person having the custody of property to take such steps as he thinks fit to punish a person who he supposes has done something with reference to the property which he has not done. The act of punishing the offender is not anything done with reference to the property. It Is done merely for the purpose of vindicating justice. And in this respect there is no difference between a railway company—which is a corporation—and a private individual. If the law were that the defendants are responsible for the act of their booking clerk in giving the plaintiff into custody on an unfounded charge, every shopkeeper in London would be answerable for any act done by a shopman left in his shop who chose to accuse a person of having attempted to plunder the shop, every merchant would be responsible for a similar act of his clerk, and every gentleman for the act of his butler or coachman." In order to make the employer liable, he must have directed the injurious and wrongful act to be done. Thus in Tolchester, etc., Co. v. Steinmeier, 72 Md. 313, 20 Atl. 188, 8 L. R. A. 846, one of the earliest cases on the subject in this country, the court held as follows: "(1) That the defendant was not bound for the policeman's acts simply because he was appointed by the Governor at its nomination or request, and because it paid his salary. (2) That the act of the policeman was that of a state officer in the exercise of his common-law powers as such officer, and not executing the orders of the defendant. (3) That the act of arrest, to be effectually ratified by the defendant, must have been the act of its agent authorized to commit it."-In Tucker v. Erie Ry. Co., 69 N. J. Law, 19, 54 Atl. 557, the court held as follows: "In order to render a company responsible for an unwarranted arrest made by one of such policemen, and a subsequent malicious criminal prosecution by him, it is necessary to show that...