Polatty v. Charleston & W.C. Ry.

• Decision Date: 24 November 1903
• Citation: 45 S.E. 932,67 S.C. 391
• Parties: POLATTY v. CHARLESTON & W. C. RY.
• Court: South Carolina Supreme Court

45 S.E. 932

67 S.C. 391

POLATTY v. CHARLESTON & W. C. RY.

Supreme Court of South Carolina

November 24, 1903

Appeal from Common Pleas Circuit Court of Laurens County; Buchanan Judge.

Action by Everett Polatty, minor, by his guardian ad litem, against the Charleston & Western Carolina Railway. Judgment for plaintiff, and defendant appeals. Affirmed.

Simpson & Cooper, for appellant. Evans & Finley, for respondent.

POPE C.J.

This was an action for damages for personal injuries. At the conclusion of plaintiff's testimony, defendant moved for a nonsuit, which motion was denied by the circuit judge. Upon the testimony and the charge of the judge, the jury returned a verdict in favor of plaintiff. After judgment, defendant appealed upon the ground of alleged error of the circuit judge in refusing motion for nonsuit. It becomes necessary therefore, to direct our inquiry to this alleged error. The grounds of appeal are as follows:

"(1) Because the circuit judge erred in not holding, on the motion for nonsuit at the conclusion of the plaintiff's case, that there was no evidence tending to show that the acts of which the plaintiff complained were within the scope of the engineer of the defendant company and that the defendant was not bound thereby, and in therefore granting the motion for nonsuit.

(2) Because the circuit judge erred in not holding that the evidence adduced by the plaintiff shows 'that the act or acts of the engineer of the defendant company of which the plaintiff complained were outside of, and beyond the scope of, the authority and employment of such engineer, and that defendant was not bound thereby, and in not, therefore granting the motion for nonsuit." D'

It is proper at this juncture to state in brief the facts underlying plaintiff's action, and, as stated by the respondent in his argument, they are as follows: "This was an action brought by Everett Polatty, through his guardian ad litem, W. M. Polatty, for damages against the Charleston & Western Carolina Railroad Company for willful and wanton assault upon his person while on its train, under the following circumstances: Polatty was a young man, an operative in the cotton mill at Gaffney, S.C. He received information that his mother was ill, and, being out of funds, attempted to travel from Gaffney to Warrenville, in Aiken county, where his father, postmaster at that place, and sick mother, were living. He succeeded in getting as far as Laurens through the kindness of the railway conductor, who allowed him to ride from Enoree to Laurens free of charge, at which point the train of the generous conductor stopped. He boarded at Laurens the regular passenger train bound for Augusta, Ga. He got as far as Waterloo, the next station beyond Laurens, where he got off the train. He boarded the same train again, getting on the platform on the front end, or blind end, as it is called, of the mail car, next to the engine. The mail car had no door at this end; hence its name, 'blind end.' The engineer and fireman saw him standing on the platform just in the rear of the tender of the engine, and, while the train was running at the rate of about ten miles an hour, commenced hollering at him to get off. Upon his failure to do so, the engineer commenced throwing coal at him. He struck him with a lump of coal in the small of the back, causing him to loose his hold and fall from the car to the ground, thereby dislocating his ankle, and requiring the expenditure of money in doctor's bills for a period of nearly six months. His escape from death was miraculous, and it was through no fault of the engineer or servants of the railway company that he was not killed. The case was tried at Laurens before Judge Buchanan and a jury. The jury promptly rendered a verdict for $1,500 in favor of plaintiff, from which the defendant appeals to this court."

We have been saved reproducing in this opinion very many citations of authority in order to establish the principle of law that the master is responsible for willful acts of his employé, when such are within the scope of his duty or the line of his employment, by the following admission of the appellant: "Whatever the rule may have heretofore been in this state, it is now established law that the master is responsible for willful acts of his employé when such acts are within the line of his employment." But along with that admission, the appellant contends that it was the duty of the plaintiff to have offered testimony going to show that defendant's servant, the engineer, was authorized by his principal to do the act complained of, or that the act complained of was in the line of duty of the servant, the engineer. It is necessary to draw the distinction as to the law governing the relation between the principal and the agent as between themselves, and that of the principal and his agent, on the one hand, and third persons, on the other. Of the latter class of cases, it must be remembered that third persons have the right to assume that when they find an agent in possession of the principal's property, managing the same, such possession and management by the agent or servant are by permission of the principal or master. For instance, a passenger finding a man in the uniform of the conductor in possession and control of a passenger coach on a railway would have the right to assume...