Penas v. Chicago, M. & St. P. Ry. Co., Nos. 16,409-(153).

CourtSupreme Court of Minnesota (US)
Writing for the CourtJaggard
Citation112 Minn. 203
Docket NumberNos. 16,409-(153).
Decision Date09 September 1910

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112 Minn. 203
Nos. 16,409-(153).
Supreme Court of Minnesota.
September 9, 1910.

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Action in the district court for Ramsey county by plaintiff, by his guardian, against defendant company and William Keys, to recover $50,000 for personal injuries sustained by being forcibly ejected from defendant's train.

The complaint among other things alleged that on February 26, 1907, plaintiff was desirous of riding to Western avenue on the train

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of defendant company, boarded the train at the Union Depot in St. Paul and was received upon the train as a passenger; that William Keys, a brakeman, approached plaintiff and stated in a loud voice "get off this train, * * * or I will throw you off;" that plaintiff tried to reason with the brakeman, whereat the latter repeated his language and then gave plaintiff a violent push, throwing plaintiff into the open gap between the platforms with the result that he fell to the rails of the track and the moving train passed over his right arm and his left hand and otherwise severely injuring him; that the injuries were caused directly by the joint negligent acts of both defendants and their failure to use proper care toward said plaintiff. The answer was a general denial. The case was tried before Olin B. Lewis, J., and a jury which returned a verdict in favor of defendants. From an order denying plaintiff's motion for a new trial, he appealed. Reversed.

D. J. Keefe and Thos. C. Daggett, for appellant.

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


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.


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

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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 state 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.


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.

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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 wilfully 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 L. Rev. 383, et seq., with the English review of this history in Macdonell, Master & Servant, 263.)

The transition in thought between the third and fourth stages of development is well illustrated by contrasting the familiar and leading cases of McManus v. Crickett (1800) 1 East, 106, and Limpus v. London (1862) 1 Hurl. & C. 526.

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

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in analogous situations. In particular they have overlooked the increasing stress the progress in 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 to render the employer liable in damages for their breach, although the immediate cause of the harm complained of is an independent contractor, as in nuisance cases (and see Williams, J., in Pickard v. Smith, 10 C. B. [N. S.] 470, 480, Penny v. Wimbledon, L. R. [1899] 2 Q. B. 72, Winslow v. Commercial [Iowa] 124 N. W. 321), or a stranger (Illedge v. Goodwin, 5 Car. & P. 190, et sim.) Under analogous facts, not distinguishable on principle, the master has been exonerated from responsibility for the tort of his servant. On the same principle, a total stranger to a contract may recover damages in tort from the manufacturer or contractor who has been guilty of negligence in connection with the delivery of potentially dangerous instrumentalities to his servant. Parry v. Smith, 4 C. P. D. 325, 327. And see later cases collected and discussed in O'Brien v. American Bridge Co., 110 Minn. 364, 125 N. W. 1012. The basis of the liability is a breach of duty. Clerk & Lindsell, Torts (Can. ed.) at page 465. So, also, a master owes his servant duties which are nondelegable on proof of the breach of which by another servant the master is liable, irrespective of the motive of the servant.

Apart from its inconsistency with these and other lines of authorities, the English criterion fails in reason because it primarily rests on the state of mind of the servant. This is often in fact a remote, accidental, and collateral circumstance. 1 Thompson, Negligence, (2d Ed.) 553, 554. The test is artificial and metaphysical. The saving grace of a sense of humor is obviously wanting. See, e. g., Beven, Negligence, preface, and Macdonell, Master & Servant, 242.

It is usual, but not accurate, to regard the progress of the English law as having stopped at this point. Exactly what is the present English criterion is not clear, but (Mr. Beven to the contrary) it inclines to follow the reasoning of American courts and to extend further protection to third persons. The difficulties in the situation have led the English courts to yield to "the modern tendency to extend the master's responsibility to acts naturally flowing from the employment thereof not within its scope." Ruddiman v. Smith

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(1889) 60 L. T. R. (N. S.) 708 (where the servant negligently allowed water taps in a lavatory to run, plaintiff was damaged by the overflow, and the master was held liable. Cf. Stevens v. Woodward [1881] 6 Q. B. D. 318, where under similar circumstances the master was held not liable. The servant there was forbidden to use the lavatory. However "the law is not so futile as to allow a master, by giving secret instructions to his servant, to discharge himself from liability." Willes, J., in Limpus v. London, 1 Hurl. & C. 526, 529. In Dyer v. Munday, [1895] 1 Q. B. 742, the master was held liable for...

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