Neallus v. Hutchinson Amusement Co.

• Decision Date: 22 December 1927
• Citation: 139 A. 671
• Parties: NEALLUS v. HUTCHINSON AMUSEMENT CO.
• Court: Maine Supreme Court

139 A. 671

NEALLUS

v. HUTCHINSON AMUSEMENT CO.

Supreme Judicial Court of Maine.

Dec. 22, 1927.

Exceptions and motion from Superior Court, Cumberland County, at Law.

Action by Clarence Neallus against the Hutchinson Amusement Company for assault by a special police officer, employed by defendant Verdict for plaintiff, direction of verdict for defendant was refused, and defendant excepts and moves for new trial. Exceptions and motion overruled.

Argued before WILSON, C. J., and PHILBROOK, DUNN, STURGIS, and BASSETT, JJ., and MORRILL, A. R. J John J. Devine, of Portland, for plaintiff.

Herbert J. Welch and Edward J. Harrigan, both of Portland, for defendant.

BASSETT, J. Case against the proprietor of a moving picture theater by a patron for an alleged assault upon him by a special police officer alleged to be an employee of the defendant. Plea, general issue with brief statement that the officer was in the act of placing the plaintiff under arrest and, being assaulted by him, used only the force necessary for self-defense.

At the close of the evidence a motion by the defendant for a directed verdict was denied. Verdict of $110 for the plaintiff. The case comes up on exceptions to the refusal to direct a verdict and upon general motion for new trial.

The fundamental question of the case is whether there was evidence which would warrant a finding that one Benson, who was appointed a special policeman at the defendant's theater at its request and whose services were paid by it, was acting as its agent or employee at the time of the alleged assault.

To answer this question we must first determine, and it has not been hitherto by this court, what is the status of such a police officer and to what extent is the person or corporation, who so secures his appointment and pays for his services, liable for his acts.

The decisions hold generally that such officers act sometimes as officers and sometimes as servants of the person employing them; that they are not, although paid for all their services by the persons at whose instance they are appointed, servants of such persons in respect to all the acts they perform by virtue of their offices but only in respect to services rendered to these persons, such as protecting and preserving their property or maintaining order on their premises; that the line of distinction, sometimes hard to recognize under the circumstances of a given 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 and justice, of the apprehension or punishment of a wrongdoer, not for the injury done to the employer but to the public at large; that to make the employer liable he must have directed the injurious and wrongful act to be done, not necessarily in express terms but by implied authority or direction from him to the officer to do the act; in other words, if the act done was within the scope of the duty imposed upon the officer by his contract of service in favor of the employer, the employer is responsible. McKain v. Baltimore, etc., R. R. Co. (1909) 65 W. Va. 233, 64 S. E. 18, 23 L. R. A. (N. S.) 289, and note, 131 Am. St. Rep. 964, 17 Ann. Cas. 634, and note; Layne v. Chesapeake & O. Ry. Co. (1909) 66 W. Va. 607, 67 S. E. 1103; 30 L. R. A. (N. S.) 481, note; Deck v. Baltimore & O. R, R. Co. (1905) 100 Md. 168, 59 A. 650, 108 Am. St. Rep. 399; Foster v. Grand Rapids Ry. Co. (1905) 140 Mich. 689, 104 N. W. 380; Dickson v. Waldron (1893) 135 Ind. 507, 34 N. E. 506, 35 N. E. 1, 24 L. R. A. 483, 488, 41 Am. St. Rep. 440; Taylor v. New York & L. B. R. Co. (1910) 80 N. J. Law, 282, 78 A. 169, 39 L. R. A. (N. S.) 122; Rice v. Harrington (1915) 38 R. I. 47, 94 A. 736, L. R. A. 1916E, 356.

"The weight of modern opinion is that where private persons, with the consent of the state, employ its police officers to represent them, and to do special work for them in protecting and preserving their property and maintaining order on their premises, and such officers are engaged in the performance of their duties to their employers and are acting within the scope of their powers and duties, they become and are the servants and employees of such private persons, and for negligent and wanton acts committed by them in the line of their duty, and when engaged in the performance of such duties, to the injury of others, their masters or employers are liable." 18 R. C. L. § 246, p. 786; Ann. Cas. 1913D, 112, note; Ksunir v. Pressed Steel Car Co. (D. C. 1913) 201 F. 146, 150.

The fact of being a police officer does not prevent his being employed. Hirst v. Fitchburg & L. St. Ry. (1907) 196 Mass. 354, 82 N. E. 10.

A peace officer may undertake to act in a capacity which in law constitutes civil agency, endeavoring to aid an aggrieved or molested citizen in obtaining or defending his rights, and in the event of a subsequent disorder or breach of the peace assume and exercise the duties incidental to his official character. Jardine v. Cornell (1888) 50 N. J. Law, 485, 14 A. 590; Ann. Cas. 1913D, 112.

The question whether in a particular case the doer of the act complained of was at the time acting in his official capacity or within the scope of his employment as a servant or employee is ordinarily a question of fact for the determination of the jury. Sharp v. Erie R. Co. (1906) 184 N. Y. 100, 76 N. E. 923, 6 Ann. Cas. 250; Tyson v. Bauland Co. (1906) 186 N. Y. 397, 79 N. E. 3, 9 L. R. A. (N. S. 267; Perkins Bros. Co. v. Anderson (Tex. Civ. App. 1913) 155 S. W. 556; Deck v. Baltimore & O. R. R. Co., supra; Layne v. C. & O. Ry. Co., supra; 17 Ann. Cas. 639, note; Ann. Cas. 1913D, 114, note; Buman v. Michigan Cent. R. Co. (1912) 168 Mich. 651, 134 N. W. 972, Ann. Cas. 1913D, 107.

It may, however, so clearly appear that the officer was acting only in his capacity as an officer, Tolchester Beach Improvement Co. v. Steinmeier (1890) 72 Md. 313, 20 A. 188, 8 D. R. A. 846; 23 L. R. A. (N. S.) 290, note; Jardine v. Cornell, supra; Healey v. Lothrop, 171 Mass. 263, 50 N. E. 540, or beyond the limits of any express or implied authority derived from or of any duty owed to the employer, Pennsylvania R. R. Co. v. Kelly (C. C. A. 1910) 177 F. 189, 30 L. R. A. (N. S.) 481, that no conclusion, other than that the officer was not acting in his capacity as an employee could reasonably be drawn, or the only reasonable conclusion may be that he was acting not as an officer but as employee, Heggen v. Fort Dodge R. Co. (1911) 150 Iowa. 313, 130 N. W. 148, and consequently there is no issue for the jury.

The plaintiff has the burden of showing the express or implied authority of the officer to perform the injurious act for and on behalf of the defendant. Layne v. C. & O. Ry. Co., supra.

We turn, now, for the application of the foregoing principles to the instant case.

The defendant conducted a moving picture theater known as the Portland Theater. George B. Gordon was the manager. Benson had been employed about a year at the time of the alleged assault on March 4, 1924. He had been, upon the written request of the defendant, appointed by the city council of Portland special policeman at the Portland Theater. The council made similar appointments for other theaters. His services were paid by the defendant and by the week. These services were, as testified by him, in the morning cleaning up about the theater; on one morning a week distributing in shops and stores advertising posters; usually in afternoons, when the ticket taker was off duty, taking tickets; in the evening he put on his uniform and was stationed in the balcony and ordinarily the only one there; he did not show patrons to seats, they found their own. Two flights of stairs led on the right and left from the lobby or orchestra floor to the balcony and into a passageway, which circled around behind the balcony seats and the moving picture booth in the center of the theater and from which two aisles led down to the front of the balcony for patrons to reach the seats. Benson testified, "After I put on my uniform at night I go upstairs and see that they keep the peace up there." There were these questions and answers:

"What are your duties at the Portland Theater when you are working there?" "Special officer." "What else do you do up there?" "Nothing only preserve order and see that nobody fires paper or causes disturbance." "Your duties as such special officer were what?" "To keep order, to keep the aisles clear on account of the fire rules and keep quietness."

As a public officer, Benson was a. peace officer. Rev. Stats, chap. 85, § 58; Quimby v. Adams, 11 Me. 332. The defendant claimed that the employment of a special police officer for duty at its theater was not optional with the defendant but required by ordinances of the city. But there was no evidence of such ordinances and judicial notice cannot be taken of city ordinances by this court. 15 R C. L. § 16, 1077.

As a peace officer, Benson's sole duty was to preserve the public peace and to arrest those who were engaged in a breach thereof. Foster v. Grand Rapids Ry. Co., supra; Rucker v. Barker (Tex. Civ. App. 1912) 151 S. W. 871.

As an employee, his duty was to protect the defendant's property and to maintain order upon the premises.

"It was necessary to the business of the defendant that he should so conduct his resort as to make it attractive to his patrons; this required him to restrain soma who might become rude and boisterous and thus prevent the annoyance of others. Many acts which are not criminal but are offenses against good manners and good order the defendant would be justified in restraining; and with authority could declare that he would not permit such conduct upon his premises. But such acts would not thereby become misdemeanors for which the police constables in his employ could arrest an offender as for the commission of a crime. It was in the furtherance of this policy that the defendant employed Henry and his...