Rand v. Butte Electric Ry. Co.

• Decision Date: 29 January 1910
• Citation: 107 P. 87,40 Mont. 398
• Parties: RAND v. BUTTE ELECTRIC RY. CO. et al.
• Court: Montana Supreme Court

107 P. 87

40 Mont. 398

RAND v. BUTTE ELECTRIC RY. CO. et al.

Supreme Court of Montana

January 29, 1910

Appeal from District Court, Silver Bow County; Jeremiah J. Lynch Judge.

Action by R. N. Rand against the Butte Electric Railway Company and others. From a judgment for plaintiff and an order denying defendants' motion for a new trial, they appeal. Affirmed.

W. M Bickford and George F. Shelton, for appellants.

Mackel & Meyer, for respondent.

BRANTLY C.J.

Action for damages for personal injuries alleged to have been suffered by plaintiff by an assault upon him by defendants Wharton, McDonald, and Vivian, employés of defendants W. A Clark and the Butte Electric Railway Company, hereinafter referred to as the company, while acting within the scope of their employment. The facts alleged in the complaint about which there is no dispute are the following: The company owns and operates a street railway in the city of Butte which extends about two miles from the city to a pleasure resort known as the "Columbia Gardens." It also owns, controls, and maintains this resort, its purpose in so doing being to secure profit from the attendance upon the resort by the public, to witness ball games, etc., had there, and from the increase in the number of its passengers to and fro from the city. For the accommodation and convenience of its patrons in getting off and on the cars at the Gardens, the company maintains a depot and platforms, which also serve as a waiting place for passengers when about to take cars for return to the city. Defendant Wharton was at the time of the alleged assault the general manager of the company, and as such had the management and control of the Gardens. On November 16, 1907, there was a football game played at the Gardens. It had theretofore been advertised, and an invitation to attend extended to the public generally, with the knowledge and acquiescence of the defendants. A great number of people attended, all being conveyed thither as passengers on the defendant company's railway, and expecting to return by the same means. Among those who so attended was the plaintiff. It is then alleged that the Gardens were owned and controlled jointly by the company and W. A. Clark, and that the defendant Wharton was in the joint employ of the company and the said W. A. Clark. The facts connected with the alleged assault are stated in the complaint as follows: "(9) That for a long time prior to the 16th day of November, 1907, and especially on the said day, the defendants Butte Electric Railway Company and W. A. Clark employed the defendants McDonald and Vivian, for the purpose of assisting in handling the crowds and patrons who attended the said Columbia Gardens and the said football game, and especially to take care, and assist in taking care, of the crowds and patrons when the said crowds and patrons went to the said depot and platform for the purpose of leaving the said Gardens and while waiting there, and returning to the said city of Butte. (10) That on the said 16th day of November, 1907, this plaintiff became a passenger upon the cars of the defendant railway company, paid his fare into and attended the aforesaid football game, and that at the close of the said game this plaintiff, in company with the rest of the crowd, went to the aforesaid platform and depot for the purpose of and with the intention of leaving the said Gardens and returning to the said city of Butte upon the cars of the said defendant railway company, and that he then and there became and was entitled to the care and protection of a passenger. (11) That while plaintiff was on and at the said platform, and on and at the said depot and a passenger as aforesaid, the defendants McDonald and Vivian, while discharging their duty and acting within the scope of their employment, without cause or provocation, or any excuse therefor, beat, bruised, maltreated, and severely injured this plaintiff, and that all of said acts were done in the presence of, and as plaintiff is informed and believes, with the knowledge, acquiescence, and consent of the defendant Wharton." It then proceeds to set forth that as the result of the beating the plaintiff was severely and permanently injured, suffering physical pain and mental anguish, and also humiliation and chagrin, for all of which he claims damages in the sum of $25,250. A joint general demurrer, interposed by the defendants, was overruled.

The defendant Wharton and the company filed a joint answer, in which, after denying that defendant Clark has or had any interest in the Columbia Gardens jointly with the company or otherwise, they substantially admit all the allegations contained in the complaint, except those embodied in paragraphs 9, 10, and 11, heretofore quoted, and those touching the injuries and suffering alleged in the subsequent paragraphs. Except as to paragraph 9, the denials are of knowledge or information sufficient to form a belief as to the matters alleged. The denials of paragraph 9 are stated as follows: "As to paragraph 9, these defendants aver: That prior to the 16th day of November, 1907, the defendants Frank C. McDonald and Morton M. Vivian had been, and on said 16th day of November, 1907, were, regularly and duly appointed, qualified, and acting deputy sheriffs of Silver Bow county, state of Montana, and as such deputy sheriffs were peace officers, authorized by law to preserve peace and order, and to prevent violence and disorder and unseemly conduct and the commission of disorderly acts by individuals in the county of Silver Bow, state of Montana; and that for the purpose of preserving peace and order, and attending to the orderly conduct of people at said Columbia Gardens, said defendants Frank C. McDonald and Morton M. Vivian were, on the 16th day of November, 1907, present at said Columbia Gardens, and as such deputy sheriffs and peace officers were engaged in the fulfillment of their duties and functions as such at said time and place, and not otherwise were they present; nor were they engaged in any other capacity than as deputy sheriffs and peace officers, at said time and place, for the said purpose aforesaid; and these defendants deny each and every allegation of said paragraph 9 not herein expressly admitted as above set forth."

As a special defense, after alleging substantially the facts stated in the foregoing paragraph, the answer continues: That the plaintiff was present at Columbia Gardens on November 16, 1907; that in the presence of a large number of women and children he conducted himself in a boisterous, offensive, and disorderly manner, using foul and unseemly language to such an extent that appeals were made by persons present to the defendants McDonald and Vivian for protection from him; that these defendants thereupon for the purpose of removing him from the presence of the women and children who were offended by his conduct, sought to put him upon one of the cars of defendant company for transportation back to the city--his destination; that he violently and offensively resisted the efforts of said officers, and, in doing so, violently struck his head against a projecting iron on the car, and in that manner, and not otherwise, was injured, if injured at all; and that, if he suffered damage, it was wholly due to his said offensive conduct and breach of the peace and his resistance to arrest by the officers while in the discharge of their duties, and not to any other cause. The answer of defendants McDonald and Vivian is a substantial repetition of that of defendants Wharton and the company. The separate answer of Clark denies all the allegations of the complaint which tend to connect him in any way with the cause of action alleged by plaintiff. The plaintiff by reply denies generally the affirmative defense alleged.

At the close of plaintiff's evidence, a separate motion for nonsuit by defendant Clark was sustained, and the action was dismissed as to him. A like motion by defendants Wharton and the company was denied. At the close of all the evidence the court was requested to direct a verdict for each of the remaining defendants. This was denied. A verdict was returned in favor of the plaintiff for $2,500. From the judgment entered thereon, and from an order denying their motion for a new trial, the defendants, other than Clark, have appealed.

1. The first contention made is that the court erred in overruling the demurrer as to defendants Clark, Wharton, and the company. It is said that the allegations of the complaint do not show that Wharton participated in the assault in any way, it being alleged that it was committed merely with his "knowledge, acquiescence, and consent," or that defendants McDonald and Vivian were acting within the scope of any employment by the company, or in any other than in an individual capacity; and hence the court should have sustained the demurrer as to all of the defendants other than McDonald and Vivian. While there is some conflict in the decisions on the subject, it is the generally recognized rule that a joint demurrer by two or more defendants, must be overruled if the complaint states a cause of action against any one of them. Pomeroy's Code Remedies, § 468; Bates' Pleading, Practice, Parties & Forms, p. 414; Bliss on Code Pleading, § 417; 6 Ency. Pleading & Practice, p. 412. Conceding that the complaint does not state a cause of action against any of the defendants other than McDonald and Vivian, yet, since such defendants chose to make common cause with McDonald and Vivian, against whom it is now admitted that the complaint is sufficient, they cannot complain that the court did not decide a question other than the one which their demurrer presented, viz., whether under the statement of facts any one of them is liable.

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