Railway Co. v. Hackett

• Decision Date: 20 January 1894
• Parties: RAILWAY COMPANY v. HACKETT
• Court: Arkansas Supreme Court

24 S.W. 881

58 Ark. 381

RAILWAY COMPANY v. HACKETT

Supreme Court of Arkansas

January 20, 1894

Appeal from Pulaski Circuit Court, ROBERT J. LEA, Judge.

Action by Thomas Hackett against the St. Louis, Iron Mountain & Southern Railway Company to recover for personal injuries. The facts appear in the following statement by the court:

The evidence tended to show that the appellant railway company had in its employment, as night watchman, Pat Gallagher, who had served the company in that capacity for about nine years before the occurrence which is the foundation of this action and, that, at the time of the occurrence, he was on duty as night watchman for the company; that it was the duty of the watchman to protect the company's depot, warehouse buildings and cars at the foot of Rock street, in the city of Little Rock. That Gallagher, the watchman, might have authority to make arrests, he had been duly appointed, and was, a deputy sheriff of Pulaski county, in said State, at the time the shooting occurred which is referred to in the complaint.

On the night of April 7th, 1890, while Gallagher was on duty as night watchman for the company, at about 10 o'clock P M., and while he was in a room upstairs near the railroad track, he heard a noise which he thought was on one of the company's tracks, which he supposed proceeded from the rattling of chains, when a clerk said, "Somebody is breaking into the cars." Gallagher, with his lantern hurried down stairs, and saw two men standing off on one side. Proceeding to the point whence the noise came, he found the appellee, Hackett, standing up, and said to him, "What are you doing here?" The appellee had gone in between some cars, at the freight depot at the foot of Rock street, to attend to a call of nature, and had just got through, when Gallagher said, "G--d-- you, I have been looking for you some time," when the appellee asked what was the matter, and Gallagher replied: "You fellows have been doing this thing long enough, and I want you to come with me." Appellee replied, "All right; wait till I button up my clothes, and I will go any place with you you want me to go." Gallagher then said "Come on," and appellee replied, "All right; I will go," and took a step toward Gallagher, when Gallagher fired a pistol at the appellee, and inflicted upon him a severe injury, the ball from the pistol taking effect in the appellee's neck, from which appellee fell over against a car, and exclaimed, "Good God! What did you do that for? " Gallagher replied, "Come on, G--d-- you, or I will blow the top of your head off." About this time two policemen arrested the parties. Gallagher had on, when arrested, two derringers and a navy-six pistol. The cars where appellee was found by Gallagher were loaded with citizens' merchandise; and the seals of cars had sometimes been broken at the depot, and arrests had been frequently made there of persons for interfering with the seals and cars. The evidence tended to show that Gallagher was appointed deputy sheriff because he was night watchman for the railroad company, and that he never reported to the sheriff, or performed any duties generally, as deputy sheriff; that his salary of $ 50 per month was paid by the railroad company; and that he gave no bond as deputy sheriff, and was never ordered on duty by the sheriff; and that, in issuing his commission, the sheriff did not expect to control him, or have him subject to his orders, but that the commission was given him to authorize him to make arrests, if necessary.

Judgment affirmed.

Dodge & Johnson for appellant.

1. The appointing and commissioning of a deputy sheriff in accordance with the law, and assigning the same to duty for the purpose of maintaining order on the premises of a railway corporation, and for the protection of its property, makes said deputy a State officer, and the corporation is not liable for the wrongful arrest or for any injuries inflicted while such officer is making an arrest in pursuance of his duties as an officer of the law. Mansf. Dig. secs. 6318 6319, 6320 to 6325; 20 A. 189; 16 S.W. 444; 34 A. & E. R. Cases, 309; 51 Md. 295, 298; 59 Iowa 59.

2. Each sheriff in Arkansas may appoint one or more deputies for whose official conduct he shall be liable. Gallagher was a State officer, for whose acts as such the defendant was not liable. Mansf. Dig. sec. 6318. The sheriff alone is liable. 42 Vt. 332; 56 Me. 211; 2 N.H. 184; 15 Mass. 200; 1 Pick. 271; 42 Vt. 341; 17 Mass. 246; 12 id. 449; 1 Mass. 534.

3. The testimony of Newland and Sam Davis as to Gallagher's reputation was incompetent. No foundation was laid by showing that the railroad company knew Gallagher's reputation. 1 Greenleaf, Ev. sec. 54; 3 Bibb, 192; 2 Bibb, 286; 2 B. & P. 532; 5 S. & R. 352; 10 id. 55; 23 Pa.St. 424; 24 id. 408. G. W. Shinn's testimony and Hackett's letter should not have been. admitted.

4. Hackett was guilty of a misdemeanor in trespassing upon the grounds of defendant for such a purpose. It may not be a statutory offense, but it is a common law offense. Mansf. Dig. secs. 566-7; 48 Ark. 59; 2 Am. Crim. Law, sec. 2002; Ib. sec. 2003. It was not necessary to have a warrant. Mansf. Dig. sec. 2412; 1 Am. & Eng. Enc. Law, p. 734 and notes; 1 Russell Crimes (9 Am. ed.), 808.

5. A principal is not liable for the malicious and wilful acts of his servant, done without his knowledge or assent, though while in his employ. 43 N.Y. 569; 47 id. 128; 51 id. 298; 73 N.Y. 548; 92 Ind. 462; 61 Iowa 574.

Sam W. Williams and Geo. W. Shinn for appellee.

1. Gallagher was the watchman of defendant, and his commission was merely given him to enable him to bear arms. He was not an officer of the State, nor was the sheriff responsible for his acts. The facts of this case differ from 20 A. 189. The distinction between independent trespasses and the acts done in the line of duty by servants is settled by 3 Clif. 416. See Thomps. on Carriers of Passengers, p. 363; 69 Miss. 245; 13 F. 116. The allegations of the complaint put in issue the character of Gallagher for competency, soberness and civility, and testimony as to his general charactor was competent. 1 Gr. Ev. secs. 50, 54, etc.; 38 Pa.St. 104. Whether Gallagher acted in his ostensible capacity as a deputy sheriff, or in his real capacity as watchman for appellant, was a question of fact for the jury. 48 Ark. 177. An agent may be an officer, and also be one for whose acts the company is liable. 28 A. & E. R. Cases, 138; Cooley on Torts, p. 397; 22 S.W. 488. Corporations are liable for the torts of their agents or servants while in their employment and in the performance of their duty, or within the scope of their duties or employment. See Cooley on Torts, p. 120; Redfield on Railways (3d ed.), 510; 14 How. 468, 483; 27 Vt. 110; 104 Mass. 117; 32 N.J. 328; 19 Ohio (N. S.), 162; 21 id. 518; S. C. 8 Am. Rep. 78; 27 Md. 277; 57 Me. 202; 2 Am. Rep. 39; 16 id. 409; 19 Ill. 353.

OPINION

HUGHES, J. (after stating the facts).

We have endeavored to fully examine and consider each of the instructions given by the court in this case, and it is our opinion that, taken together, they correctly state the law applicable to this case; that they contain no reversible error.

The counsel for the appellant state, in their brief, in substance, that they base the chief ground of their objection to the verdict upon the court's refusal to declare the law as stated by them in instruction numbered five, which the court refused. ^[*] This instruction is erroneous, in that it assumes that a deputy sheriff, as such, might engage to guard the property of the railroad company. An officer of the law cannot engage, as such officer, to guard the property of a private individual or corporation not in the custody of the law. The duties of a sheriff are prescribed by law. Such part of this instruction as correctly states the law is covered by the instructions given by the court. There was no error therefore in refusing this instruction.

The fourth instruction asked for by the appellant railway company, and refused by the court, is erroneous, as it assumes that, if Gallagher inflicted the injury wilfully and maliciously, the company is not liable for damages resulting from the injury. Such, in our opinion, is not the law, according to the weight of authority. The intention with which Gallagher acted cannot affect the liability of the railway company, though it might affect the amount of the damages. Cleghorn v. N. Y. Cent. & H. Ry. Co. 56 N.Y. 44. The question is, was Gallagher, at the time he fired the pistol shot, acting in the course of his employment as night watchman for the railway company? If he was, the company is liable in damages for any wrongful act of his in the course of his employment, resulting in injury to another, though he exceeded his authority as such night watchman. If the act was done by him in the service of the company, in the course of his employment, and injury resulted therefrom, the company is liable in damages resulting from the injury, if the act was wrongful, or performed in such a negligent manner that its negligent performance caused the injury. ^[*]

Of course, if the act causing the injury was outside of the course of the servant's employment--disconnected with the service of the company--then the company would not be liable. The fact that Gallagher had been appointed a deputy sheriff to enable him to make arrests, because he was watchman for the railroad company, could not exempt the company from liability for his acts as such watchman. If the act had been committed in the discharge of, or in the endeavor to discharge, his duties as deputy sheriff, though wrongful and in excess of his authority as deputy sheriff, the railroad company would not have been liable, though...