New Ellerslie Fishing Club v. Stewart

• Decision Date: 15 May 1906
• Citation: 93 S.W. 598,123 Ky. 8
• Parties: NEW ELLERSLIE FISHING CLUB et al. v. STEWART.
• Court: Kentucky Court of Appeals

93 S.W. 598

123 Ky. 8

NEW ELLERSLIE FISHING CLUB et al. v. STEWART.

Court of Appeals of Kentucky.

May 15, 1906

Appeal from Circuit Court, Fayette County.

"To be officially reported."

Action by John Stewart against the New Ellerslie Fishing Club and others. From a judgment in favor of plaintiff, defendants appeal. Affirmed.

Geo. S Shanklin and Jno. T. Shelby, for appellants.

Wallace Muir, for appellee.

CARROLL C.

The appellant the Ellerslie Fishing Club owns and has the exclusive fishing privileges in the lakes and pools of water of the Lexington Hydraulic & Manufacturing Company, and the appellant Will Proctor was an employé of the fishing club his duties being to prevent persons from fishing, who have not been granted that privilege. The appellee was an employé of the hydraulic and manufacturing company, and by virtue of privileges extended to employés of the company was engaged in fishing in one of the pools, when Proctor, in an attempt to prevent him from fishing, engaged in an altercation with him and cut him with a knife. Appellee alleged that Proctor had been invested by the fishing club with power to eject all persons engaged in fishing without authority from the premises, and that whilst acting in the line of his employment as the agent and servant of the fishing club, he assaulted and inflicted the injury complained of. To recover damages for the injury thus inflicted, the appellee brought this action against the fishing club and Proctor, and recovered $400.

The appellants, before answering, moved the court to require appellee to elect which defendant he would prosecute the action against. Of the action of the court in overruling this motion they complain, and insist that the cause of action stated could not be maintained against the corporation and the servant jointly. This contention might be well taken if the common-law system of pleading prevailed in this state, as the action against the servant who committed the injury would be in trespass, while the action against the corporation for the wrongful act of its agent would be in case; but the common-law procedure has been superseded by the Code, and it is now well settled that a joint action may be prosecuted against the servant and master, or the corporation and its employé, for a tort of the servant or agent whilst acting within the scope of his employment. In Illinois Central R. Co. v. Coley, 89 S.W. 234, 28 Ky. Law Rep. 336, which was a joint action against the railroad company and an engineer in charge of a train, this court said: "If in operating the engine the engineer was acting as the agent of the railroad company, and his act was its act, then it is also responsible to her upon the principle that he who does an act by another does it himself. If both he and it were liable for the wrong, they were both wrongdoers, and, being wrongdoers, may be sued jointly. A person injured in this state is not required to bring separate actions against the wrongdoers, but he may sue any or all of them at his election. The jury may find separate verdicts, and he may recover against some and not against others. Under statutes such as ours, we see no reason why the principal and agent may not be sued jointly for a wrong done by the agent in the course of his agency. Any other rule would do injustice, as it would require a plaintiff to prosecute two actions, and force him to elect between wrongdoers as to which he would sue." I. C. R. Co. v. Houchins, 89 S.W. 530, 28 Ky. Law Rep. 499; C., N. O. & T. P. R. Co. v. Cook, 113 Ky. 161, 67 S.W. 383. In Thompson on Negligence, § 6288, it is stated that: "It is now well settled that a corporation may be joined as a defendant with its agent in an action to recover damages for tortious act committed by the agent in the general line of its previously conferred authority, or where there has been a subsequent ratification by the corporation of his wrongful act, as, for instance, where the wrong consisted of the negligence of the servant, or of an assault and battery committed by him, or where he has, when acting for the corporation, become liable for a malicious prosecution of a criminal action."

It is also urged, as ground for reversal, that the court erred in refusing to give to appellants the burden of proof, and in denying them the right to make the concluding argument. Appellants filed separate answers. The answer of the fishing club denied that Stewart was an employé of the hydraulic and manufacturing company, or that he had any right...