N. & W. Ry. Co. v. Haun

• Citation: 167 Va. 157
• Parties: NORFOLK AND WESTERN RAILWAY COMPANY A CORPORATION v. C. FRANK HAUN.
• Decision Date: 11 September 1936
• Court: Supreme Court of Virginia

Page 157

167 Va. 157

NORFOLK AND WESTERN RAILWAY COMPANY A CORPORATION v. C. FRANK HAUN.

Supreme Court of Virginia, Staunton.

September 11, 1936.

Present, Campbell, C.J., and Holt, Hudgins, Gregory, Browning and Eggleston, JJ.

1. MASTER AND SERVANT — Liability of Master for Acts of Servant — Acts of Special Policy Officer. — The general rule is that in the absence of statute a private person or corporation is not responsible for the acts of a special police officer appointed by public authority, but employed and paid by the private person or corporation, when the acts complained of are performed in carrying out his duty as a public officer.

2. ARREST — Without Warrant — For Misdemeanor — Duty of Police Officer. — It is the duty of a police officer to make an arrest, without a warrant, for a misdemeanor committed in his presence, and this duty becomes more imperative if the same act constitutes a felony under the federal law.

3. MASTER AND SERVANT — Liability of Master for Acts of Servant — Special Police Officer — Effect of Criminal Charge against Officer — Case at Bar. — In the instant case, an action to recover for the wounding of plaintiff by the negligent discharge of a pistol by a special police officer of the railroad, appointed under section 3944 of the Code of 1930 and paid by the railroad, plaintiff and another were apprehended by three officers as they were stealing coal and fled when the officers attempted to arrest them. Plaintiff was struck in the back by a bullet accidentally discharged when the officer fell over a pile of coal, and brought action against the railroad on the theory of respondeat superior. The officer was charged with violation of the maiming act, which charge was still pending at the time of the trial of the instant case.

Held: That the fact that the officer was charged with a violation of the maiming act was not sufficient to overcome the presumption that, in making the arrest, he was acting in the discharge of his public duty.

4. MASTER AND SERVANT — Liability of Master for Acts of Servant — Special Police Officer — Employer Not Liable because No Bond Is Required — Case at Bar. — In the instant case, an action to recover for the wounding of plaintiff by the negligent discharge of a pistol by a special police officer of the railroad, appointed under section 3944 of the Code of 1930 and paid by the railroad, plaintiff and another were apprehended by three officers as they were stealing coal and fled when the officers attempted to arrest them. Plaintiff was struck in the back by a bullet accidentally discharged when the officer fell over a pile of coal, and brought action against the railroad on the theory of respondeat superior. Plaintiff contended that since no bond is required of special police officers for railway companies, the employer should be liable for the acts of such policy agents.

Held: That the test is not whether the injured party should be compensated but in what capacity the officer acted, and if bond had been given defendant would be liable for any act of its agent performed within the scope of his employment and not liable if the act was done in performance of a public duty.

5. MASTER AND SERVANT — Liability of Master for Acts of Servant — Special Policy Officer — Officer Acting in Discharge of Public Duty — Case at Bar. — The instant case was an action against the railroad on the theory of respondeat superior to recover for the negligent shooting of plaintiff by a special police officer of defendant railroad, appointed under section 3944 of the Code of 1930, and paid by defendant. Plaintiff and another fled when three officers attempted to arrest them as they were stealing coal from cars in interstate transit, and plaintiff was struck in the back by a bullet accidentally discharged when an officer fell over a pile of coal.

Held: That defendant was not liable for the acts of the officer since he was acting in the discharge of his public duty in an attempt to enforce the criminal laws, and not in the capacity of defendant's servant.

Error to a judgment of the Circuit Court of Tazewell county. Hon. A. C. Buchanan, judge presiding. Judgment for plaintiff. Defendant assigns error.

The opinion states the case.

Greever & Gillespie and Crockett & Tutwiler, for the plaintiff in error.

Lilly & Lilly and J. Powell Royall, for the defendant in error.

HUDGINS, J., delivered the opinion of the court.

E. G. Harman and D. W. Franklin, on motion of the Norfolk & Western Railway Company, were duly appointed, by different courts, special police officers under the provision of Code, section 3944, as amended by Acts 1930, chapter 353. They received no compensation from the Commonwealth, but were paid by the Norfolk & Western Railway Company. These officers were notified that coal, in interstate transit, had been repeatedly stolen from cars temporarily on a side-track in the Norfolk & Western Railway yards at Flat Top, Tazewell county, Virginia. Their superior officers instructed them to make an investigation of these complaints. They requested R. M. Mathews, regular police officer of Tazewell county, to assist them in the criminal investigation.

The three officers on the night of January 9, 1935, while hidden on defendant's yard, saw two men throwing coal off a car temporarily standing on the siding. Later the two special officers saw two men carry the coal from the side of the track, where they had thrown it, to the side of the county highway, or just off the railway company's right of way. Shortly thereafter, and while two men were loading the coal into an automobile, the two special officers ran up within 30 feet of them, turned on a flash light and attempted to arrest the thieves. One ran in one direction, and the other in another. One officer pursued one, the other officer the other. Two shots were fired, one by each officer. The man, L. B. Wilson, whom Franklin pursued, submitted to arrest and was brought back to the automobile. C. Frank Haun, the other thief, was hit in the back and badly wounded by the shot from Harman's pistol. He was taken by the officer, in his own car, loaded with the stolen coal, to a hospital located in Bluefield, West Virginia, and given the proper medical aid. Wilson was taken to the home of Mr. Pittman, special police agent in charge of the Pocahontas division of the railway company. Wilson, after signing a written account of the theft of the coal, and the shooting of his brother-in-law, C. Frank Haun, was released.

For several days Haun's life was in serious jeopardy from the bullet wound, but he eventually recovered and instituted this action, alleging that at the time he was shot Harman was acting as a servant for defendant company. The trial court entered judgment for $4,000 on the jury's verdict, to which judgment defendant obtained this writ of error.

The trial court adopted plaintiff's view of the case, and held that whether Harman was acting within the scope of his employment, as agent for defendant, or as a police officer of the Commonwealth at the time of the shooting, was a question of fact to be determined by the jury.

The general rule is that in the absence of statute a private person or corporation is not responsible for the acts of a special officer appointed by public authority, but employed and paid by the private person or corporation, when the acts complained of are performed in carrying out his duty as a public officer. 39 C.J. 1273; 35 A.L.R. 681.

The statute (Code, section 3944, as amended by Acts 1930, chapter 353) clothes two classes of persons with limited police authority. The latter part of the section makes certain employees of common carriers, such as conductors, motor men, operators of motor busses, station and depot agents, when on duty, conservators of the peace, with the same power to make arrests that justices of the peace have. These powers are conferred upon the named employees by virtue of the duties assigned them by the employer. No examination or confirmation of appointment of these employees is made by public authority. The duties they are employed to perform are sufficient, under the statute, to clothe them with the power stated. This court, dealing with this class of employees of common carriers, in Southern R. Co. Grubbs, 115 Va. 876, 884, 80 S.E. 749, 752, said: "The effect of these instructions was to make the mere claim of the conductor that he was acting as a conservator of the peace conclusive of the case, as a presumption of law, without regard to whether the facts and circumstances of the case justified his course of conduct. In other words, the contention is that being a conservator of the peace he is thereby taken out of the control of the company, and out of the sphere of the company's responsibility for his acts, provided he chooses to assume to act under the guise of a conservator of the peace without any reference to the question whether or not he was, in good faith, justified in assuming that role.

"The functions of a conductor are primarily as a representative of a railroad company, and his duty to the passenger is the same as that of the company. His duties as a conservator of the peace are merely incidental to his office of conductor. Neither he nor his company can make use of his incidental functions as a conservator of the peace as a pretext to shield themselves from liability for his wrongful and oppressive acts as conductor. The instructions under consideration would afford railroad companies a ready means of escape from all responsibility to passengers who were wrongfully maltreated by conductors. It is a question for the jury to determine, upon all the facts and circumstances of the case, whether or not the conductor was, in fact and in good faith, acting in the capacity of a conservator of the peace, and not in his capacity of conductor; and if it is relied on to shield the company from liability, the company must show the necessity and good faith of...