Odom v. Gulf & Ship Island Railroad Company

• Decision Date: 26 February 1912
• Citation: 57 So. 626,101 Miss. 642
• Parties: E. M. ODOM v. GULF & SHIP ISLAND RAILROAD COMPANY
• Court: Mississippi Supreme Court

57 So. 626

101 Miss. 642

E. M. ODOM v. GULF & SHIP ISLAND RAILROAD COMPANY

Supreme Court of Mississippi

February 26, 1912

October 1911

APPEAL from the circuit court of Simpson county, HON.W. H. HUGHES Judge.

Suit by E. M. Odom against the Gulf & Ship Island Railroad Company. From a judgment sustaining a demurrer to the declaration plaintiff appeals.

The declaration omitting formal parts, is as follows:

"On or about the 17th day of April, 1910, the defendant was a Mississippi corporation, doing business as a railroad company, and in the operation of its railroad it had depots up and down its line of railroad, and agents at said depots or stations, with whom the general public would go and transact their business with the defendant. There was a depot in the town of Star, in Rankin county, Mississippi, where the plaintiff lived, and the said depot was in charge of an agent of the defendant, and under and by the laws the said agent at Star was a conservator of the peace, and it was his duty to preserve the peace, and to protect all persons coming to the depot to transact business with the defendant from insults and abuse and attacks, especially when such persons appeal to the agent for such protection. On or about this day the plaintiff went to the depot, at Star, of the defendant, for the purpose of transacting business with the agent of the defendant, and when the plaintiff arrived at the depot the section foreman in the employ of the defendant met plaintiff at the door, and cursed, abused, maltreated, and insulted the plaintiff in the presence of the depot agent, or depot master, who was also the agent of the defendant, and while said insults, abuse, cursing, and maltreatment was heaped upon the plaintiff by this section foreman, plaintiff appealed to the station master, or the agent of the defendant, who was in charge of the depot, for protection. The said agent in charge of the depot stated that he would have nothing to do with it, and refused to protect plaintiff from such insults, abuse, cursing, and maltreatment, or to cause the other servant of the defendant, the section foreman, to desist from his cursing, abusing, and maltreating plaintiff. The plaintiff charges that the railroad company owed the duty to the public to employ competent servants in each and every capacity; that by having in its employment as the section foreman a species of moral degenerate and a drunken sot, a man who had no regard for the rights of the general public, who would approach the stations of his master, to transact business with his master, the defendant violated the duty that it owed to the public in having this kind of servants in its employment. Plaintiff avers, further that the defendant owed to the general public the duty to have in its employment as station masters, or depot agents, servants competent in every particular, whose moral courage would enable them to protect people, coming to the depot on business, from ruffians and drunken desperadoes, and who would protect the general public, transacting business with the defendant, from abuse, cursing, and insults; but the defendant violated this duty that it owed to the general public, in having in its employment an incompetent servant and station master, or depot agent. Plaintiff avers, further, that it was the duty of the depot agent of the defendant to protect him from this abuse, cursing, and maltreatment, made so by his employment of the defendant; but the defendant's agent or servant, and the defendant itself, has been grossly and willfully negligent in performing those duties that it owed this plaintiff and the general public; and by reason of said gross and willful negligence of the defendant, the plaintiff has been greatly damaged and humiliated and mistreated, to-wit, in the sum of five thousand dollars. Wherefore he brings this suit and demands judgment."

Affirmed.

Hilton & Hilton and Flowers, Alexander & Whitfield, for appellant.

Sec. 4867 of the Code makes it the duty of the railroad companies to keep open their stations at least an hour before the arrival and one half hour after the departure of passenger trains and to keep the station lighted when necessary, and also properly heated. And then it is provided:

"The agent or person in charge shall preserve order and, if necessary, eject any person whose conduct is boisterous or offensive."

It is said, however, that this section was enacted for the benefit of passengers only and that there is no duty resting upon agents at stations to keep order or to protect any person in or about the station except passengers or persons who are there for the purpose of becoming passengers. In other words it is said that the agent cannot be considered a conservator of the peace in and about stations except insofar as he may have to deal with passengers or except so far as passengers, as such, may be concerned.

In King v. Railroad Co., 69 Miss. 245 the court said:

"Every depot or station agent, whatever may be his instructions or understanding, is made a conservator of the peace with authority to preserve order in the waiting room, and the duty to arrest and deliver to some officer all persons who are guilty of disorderly conduct, etc. The manifest purpose of the legislature was to secure the preservation of order in the waiting room through the designated officer or agent of the railroad company, and what he does or fails to do, in reference to this duty, is imputable to the railroad company as its act or omission."

We do not understand that it would have made any difference in the decision of the King case if it had appeared that King was not a passenger but was rightly on the premises of the company. The decision is not made to depend upon the fact that he was a passenger or intending passenger, and while it is said that the statute was intended to make a station agent a conservator of the peace in and about the waiting room, it certainly would not be given such limited application as to relieve the station agent of the duty to preserve order in any part of the station which was under his supervision or control nor do we think that it would be given such limited application as to afford protection to passengers only.

Passengers are entitled to the protection because they are rightly on the premises of the company. They have in a way put themselves in the hands of the company and sufficient authority is vested in the station agent to protect them. And while the passenger may be under a contractual relation with the company this could hardly be considered to do more than to establish his right to remain on the premises and depend upon the company for protection while he so rightfully remains there and properly conducts himself. But the man who goes to get freight which the company has transported for him or to deliver goods to be transported is also in a contractual relation, in a sense, with the company and his right to be on the premises and to be protected while there is established. The material inquiry is whether the person claiming the protection was rightly on the premises or necessarily there in order to transact business which he has with the company.

In Andrews v. Railroad Company, 86 Miss. 129, wherein it appeared that Andrews had gone to the station long before train time and by the courtesy of the agent was permitted to go into the agent's private office to do some writing and was there assaulted by the agent, the court said:

"We hold that every prospective passenger or other person lawfully entitled to use the reception room at a passenger station, and whose own conduct is not boisterous or offensive, is protected in such use by the provision of the section cited. But the statute cannot be so extended as to cover a difficulty of a personal nature, not growing out of or connected with the services of the employee or the business of the master, arising between two individuals not in the reception room, even though one of the parties should be an employee of the railroad company owning or controlling the depot."

But in that case it appears that there was no business of the master being transacted or about to be transacted by either of the parties. Andrews was not on the premises for any purpose except a private purpose. He was there for his own business and the company owed him no duty whatever to protect him. He was not there to transact business with the railroad company.

In Rose v. L. N. & O. T. R. R. Co., 70 Miss. 725, the court held that the railroad company may be liable for the act of persons expelling the plaintiff from the waiting room with unnecessary violence, since it was made to appear that the agent of the defendant directed or permitted it and no reference is made in the opinion of the court or in the brief of counsel to the statute. Rose, however, seems to have been a passenger.

B. E. Eaton and May & Sanders, for appellee.

Counsel for appellant do not undertake to predicate liability against the defendant for the act of the section foreman, except insofar as the station agent failed to protect plaintiff when appealed to. In other words, it seems to be admitted by counsel for appellant that the section foreman was not acting in the scope of his duties, service and employment; and they do not insist that there would be liability, if it had not been for the failure of the station agent to protect plaintiff. In fact, counsel for appellant cannot contend that liability is fastened on defendant by the act of the section foreman alone, since they do not contend that, at the time he was acting for the master and within the scope of his employment, and since they decline to amend their declaration so as to contain this allegation. The decisions of this court to this effect have been...