Moss v. Campbells Creek R. Co.
| Decision Date | 06 October 1914 |
| Citation | 83 S.E. 721,75 W.Va. 62 |
| Parties | MOSS v. CAMPBELLS CREEK R. CO. |
| Court | West Virginia Supreme Court |
Submitted September 3, 1914.
Rehearing Denied Dec. 22, 1914.
Syllabus by the Court.
A special police officer appointed by the Governor at the instance of a railway company, though prima facie a public officer, is, when specially employed by the company to enforce its rules and to protect the passengers on its trains, in that regard a servant of the company, and if while on a train as such servant he inflicts injury on a passenger not acting in his capacity as a public officer for the vindication of the law, or not justified by the law of self defense, the company is liable, notwithstanding the injurious act is prompted by motives purely personal to the servant.
As a general rule a new trial when granted is awarded for the entire case; but when manifest justice demands, and it is clear that the course can be pursued without confusion, inconvenience, or prejudice to the rights of any party, a new trial may be limited to a particular, separable question.
Where there is no error as to the trial on the merits of the action, but there is technical error in the overruling of a demurrer to the declaration, in that the appointment and qualification of the plaintiff as administratrix is not averred, which point was not expressly raised or deemed of consequence in the court below, a new trial will be limited to the issue made on the omitted averment when supplied.
Error to Circuit Court, Kanawha County.
Action by Lula Moss, administratrix, etc., against the Campbells Creek Railroad Company. Judgment for plaintiff, and defendant brings error. Reversed and remanded.
Adam B Littlepage and Brown, Jackson & Knight, all of Charleston for plaintiff in error.
E. S Bock and A. M. Belcher, both of Charleston, for defendant in error.
By this action the plaintiff administratrix seeks damages for the death of her intestate, who, it is alleged, while a passenger on a train of the defendant railway company, was wrongfully killed by a servant of the company. Through the verdict of a jury, plaintiff has recovered a judgment against defendant for $5,000.00, and the latter prosecutes error.
Plaintiff's intestate was shot by a special police officer appointed at the instance of the defendant company pursuant to Code 1913, c. 145, § 31. Defendant insists that it is not liable for the act. Prima facie such special officer is a public officer and the railway company is not responsible for his acts. But such officer, when specially employed by a common carrier to perform certain duties and services for it, is a servant of the carrier, while acting in the scope of his employment, for whose wrongful acts the carrier is liable. It is liable for such servant's infliction of injury upon a passenger, on a train whereon it is his employment to afford protection to passengers, although the injurious act was wilful and malicious and was prompted by motives personal to the servant. Layne v. Railway Co., 66 W.Va. 607, 67 S.E. 1103.
It conclusively appears from the evidence that at the time Nichols, the special officer, killed Moss, plaintiff's intestate, the former was not acting as a public officer for the vindication of the law. He was not engaged in making an arrest or in doing any other thing in the line of an officer of the law. It furthermore conclusively appears that he was acting as the servant of the defendant carrier. There is no other proof in this particular but that he was on the train as the servant of the railway company to enforce its rules and protect the passengers. This is his own testimony as to his duties on the train. Whether Moss was a passenger, and whether the killing was justified under the law of self defense, were issues in the case. The verdict involves a finding that he was a passenger, and that Nichols did not kill him in self defense. Then the railway company is liable for the action of Nichols in causing the death, though the killing grew out of a purely personal matter between the two men, as defendant insists it did. Nichols being on the train in the line of his employment for the protection of the passengers, the carrier is liable for his act in breach of the protection he was employed to afford. His act was one within the scope of his employment in the broader sense in which the law recognizes scope of employment in such instances. 4 Elliott on Railroads, § 1638; 2 Hutchinson on Carriers, § 1093.
The trial court instructed the jury in accordance with the principles we have iterated above. It did not err in refusing the instructions asked which were inconsistent therewith. One of the instructions given for plaintiff as to the liability of the carrier for the act of Nichols did not embrace the question whether Nichols was acting as a public officer or as a servant of the carrier, but the conclusive state of the evidence in this regard, as well as the fact that the question was embraced in another instruction, made it not essential to do so.
A review of the instructions as to the question whether Moss was a passenger at the time he was killed discloses no error of the court in its action on them. What Moss' intention was as to payment of fare was properly submitted.
There is no error in the record, except in the overruling of defendant's demurrer to the declaration. That pleading is sufficient in all particulars but one. It does not aver the appointment and qualification of the plaintiff as administratrix. Because of the omission to plead this issuable matter, the demurrer should have been sustained. Austin v. Calloway, 80 S.E. 361; Perry v. New River, etc., Coal Co., 81 S.E. 844.
At the time this action was instituted, as well as at the time the demurrer was entered, considered, and overruled, it was generally deemed unnecessary to aver that a plaintiff administrator had been duly appointed and qualified. Our decision in Austin v. Calloway came later and brought the neglected point to the attention of the profession. That point was never expressly raised herein until the case reached the appellate court--until the decision in Austin v. Calloway raised it. True, the demurrer to the declaration embraced the point and technically raised it, but in the proceedings below it was quite naturally never deemed of consequence and was not brought to the attention of the court. Just as full and fair a trial on the merits of the action was had on the declaration without the averment as would have been had with it. Defendant was entitled to the averment, because it is a traversable one; but if it had been in the declaration, in all probability it never would have been traversed. Moreover, were we wholly to reverse for want of the averment and to send the case back for the averment to be put in and a new trial to be had, in all probability the averment would not be traversed, or if it were, the due appointment and qualification of the administratrix would promptly be proved by production of the county records. If there had been any doubt as to the appointment and qualification of the plaintiff as administratrix, would not defendant have raised the issue, even on the declaration as it was? The omission in the declaration clearly had no bearing on the trial of the merits of the alleged wrong. By all the omitted matter was rather conceded to be unnecessary when the case was tried. If we wholly reverse, it will likely avail nothing but to put plaintiff to the costs, delay, and inconvenience of another trial and give defendant another chance on simply that which has been already fairly determined.
Now for such error alone, shall we order another trial as a whole? To do so, under the circumstances of this case, would seem manifest injustice. Many a similar action has gone through this court and the judgment has been sustained here with the same averment lacking. Simply because we have recently discovered its materiality, and in a sense have taken litigants by surprise,...
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