Penas v. Chi., M. & St. P. Ry. Co.

• Court: Supreme Court of Minnesota (US)
• Writing for the Court: JAGGARD
• Citation: 127 N.W. 926,112 Minn. 203
• Parties: PENAS v. CHICAGO, M. & ST. P. RY. CO. et al.
• Decision Date: 09 September 1910

112 Minn. 203
127 N.W. 926

PENAS
v.
CHICAGO, M. & ST. P. RY. CO. et al.

Supreme Court of Minnesota.

Sept. 9, 1910.

Appeal from District Court, Ramsey County; Olin B. Lewis, Judge.

Action by Frank Penas, by John Penas as guardian ad litem, against the Chicago, Milwaukee & St. Paul Railway Company and others. From a judgment in favor of defendants, plaintiff appeals. Reversed.

Syllabus by the Court

In its early history, the law as to the liability of the master to third persons for the tort of his servant passed from holding the master absolutely liable to holding him liable in case of particular command only. Later the liability was enlarged, and determined by general authority, express or implied, and was subsequently extended so as to result in the rule that the master is responsible for the tort of his servant, done in the scope of his authority with the view to the furtherance of the master's business, and not for a purpose personal to himself, whether committed negligently or willfully and in excess of his authority or contrary to his express instructions. The English courts now recognize a still larger responsibility in cases where the wrong complained of was not within the scope of the servant's authority, but was done in the course of employment. The American cases have correspondingly extended the master's liability, and have considered it, not only from the master's point of view, but also from that of the person injured, and have placed emphasis, not so much on authority, real or apparent, as upon the violation by the servant of the duty owed by the master to the person complaining.

Liability may attach to the master under one or more of two different classes of circumstances, namely, first, by virtue of personal commission, singular or joint, or by consent before or after the wrong; and, second, by virtue of relationship subsisting between the master and the person injured, or because of creation, ownership, custody, or control of instrumentalities intrinsically or potentially dangerous, or where the master's conduct, his implements and premises and facilities for doing business, or the course of his business generally, or of dealing with the party complaining, have a natural tendency to create, or to determine the extent of, damage involved; or by estoppel.

Many reasons, often divorced from the resulting standard, concur in imposing liability on the master.

The master's responsibility in the first class of cases rests on personal culpability through participation or authority, including ratification. In the second class of cases it is largely independent of personal fault, and rests essentially on reasons of public policy, the principal ones of which are here referred to.

The equivocation and uncertainty of the terminology of the subject is necessarily a prolific source of inconsistency in decision.

Authority is used in the sense of (1) real or actual authority, express or naturally implied; (2) fictitious or imputed authority, of which (3) apparent authority is really one variety.

Scope of authority and course of employment, and their congeners, are often used indiscriminately and interchangeably, and sometimes as representing, respectively, the more restricted and the more enlarged and usually the most enlarged criterion of liability of the master.

The master's liability is conditioned on proof of damage consequent on the wrong committed by one who at the time is a servant of the master and under such circumstances that liability is attached to the master under the criterion prevailing in the jurisdiction and appropriate to the circumstances involved.

Liability may attach under the test of authority, the test of motive and benefit, or the test of duty violated. No one rule of liability is the sole or invariable standard. Different specific torts, or the same tort committed under different circumstances, may involve the application of different principles.

Plaintiff's minor, who was really, but not apparently, a trespasser, claimed to have been thrown from a moving train by defendant's brakeman and injured. It is held that defendant's liability was for the jury, under proper instructions from the court. Barrett v. Railroad, 106 Minn. 51, 117 N. W. 1047,18 L. R. A. (N. S.) 416, 130 Am. St. Rep. 585, followed and applied.

[127 N.W. 927]

D. J. Keefe (Thos. C. Daggett, of counsel), for appellant.

F. W. Root and Nelson J. Wilcox, for respondents.

JAGGARD, J.

For present purposes it will be assumed that plaintiff and appellant's minor was really, though not apparently, a trespasser on defendant's passenger train. Plaintiff's contention was that a brakeman struck or pushed him from one of its cars while in rapid motion, so that he fell to the ground in such a way as to have his right arm and part of his left hand severed. The jury found for defendants. This appeal was taken from the order of the trial court denying plaintiff's motion for a new trial.

I. This case involves a constantly recurring confusion in the law as to when a master is liable to third persons for the tort of his servant. That confusion is perhaps greater than in any other corresponding branch of our jurisprudence. The multiplication of authorities has not tended to clarify, but to obscure, the subject. Usually a decision on the subject consists of an imperfect collation of the more or less nearly related cases, without consideration of opposed opinions, and without inquiry into the status of the rule in history or in reason. One which contains even a bird's-eye view of the principles involved is a rarissima avis. It has, indeed, become practically impossible to review all the decisions on the subject generally, and difficult even to refer to the opposed authorities on a particular point in issue.

The rules themselves originated from the law of master and servant and the law of principal and agent indiscriminately, at a time when torts as a general subject was practically unknown. In consequence their development has been largely, but not entirely, independent of many other necessarily related subjects. That evolution, however, has been in many respects radical. It is often ignored, and more often confused. Overruled cases and cases overruling them are constantly cited by eminent judges and writers as authorities and reason for the overruled proposition itself, and almost as often for an inconsistent principle which has been repudiated times without number. In almost every state of the Union three or four stages of evolution will be found irreconcilably confounded. Current judicial language is a tessellation of the terminology of each of those stages.

It is impossible within the necessary limits of this opinion to formulate all pertinent considerations, or to discuss or even refer to any considerable portion of the authorities. At various times practically all the relevant decisions and discussions have been examined. It is feasible here to attempt to state only a small part of the results of that examination applicable to the facts here in issue.

II. This confusion has arisen primarily from failure to apprehend the historical development of the subject. It is elementary that the law as to when the master is liable to third persons for the tort of his servant has passed through many stages of development. These may conveniently be thus stated:

(1) The earliest theory recognized the absolute liability of the master. This survives in few cases only, as where the master is held to have insured safety.

(2) It then came to be recognized that the master was liable only in cases where he had given a particular command to his servant to commit the wrong complained of. This period is treated as beginning about the time of Edward I., 1300.

(3) During Lord Holt's time (about 1700) the rule was widened, so as to impose liability on the master for his servant's conduct in pursuance of general authority, express or implied. Blackstone recognized this as the criterion. His teaching, correct at the time, but inconsistent with the subsequent trend of decisions, has been followed, and is constantly to-day regarded as the law by both commentators and courts.

(4) In Lord Kenyon's time (1800 et circa), the master's responsibility was greatly enlarged, so as to give to implied authority a wide meaning, including cases within the ‘sweep’ or ‘apparent scope’ of authority, in order to embrace cases of authority, express or implied, and also cases of mistaken and excessive execution of authority. The master was held responsible, even if he had specifically forbidden the servant's conduct and the servant had acted willfully and maliciously. The essential criterion became whether the conduct was in furtherance of his employment and for the benefit of the master. (The superiority of American scholarship on this subject will be demonstrated by a comparison of Mr. Wigmore's invaluable article in 7 Harvard Law R. 383 et seq., with the English review of this history in Macdonell on M. & S. 263. The transition in thought between the third and fourth stages of development is well illustrated by contrasting

[127 N.W. 928]

the familiar and leading cases of McManus v. Crikett [1800] 1 East, 106, and Limpus v. Omnibus Co. [1862] 1 H. & N. 259.)

This rule has been subject to much criticism. It has been repudiated as a universal or invariable rule by practically all of the American courts. The English judges, absorbed in the contemplation of the law of master and servant and of principal and agent, appear to have been oblivious to the relation between the master and the person injured, necessarily involved, and to other considerations which in other, but similar, cases are judicially recognized as controlling in analogous situations. In particular they have overlooked the increasing stress the progress their own law has placed upon responsibility for the violation of duties recognized by law. Thus there are duties to third persons so far nondelegable as render the...