Sagers v. Nuckolls

• Decision Date: 23 January 1893
• Citation: 32 P. 187,3 Colo.App. 95
• Parties: SAGERS v. NUCKOLLS et al.
• Court: Colorado Court of Appeals

32 P. 187

3 Colo.App. 95

SAGERS v. NUCKOLLS et al.

Court of Appeals of Colorado

January 23, 1893

Error to district court, Garfield county.

Action by Rachel Sagers against Emmet Nuckolls, G. Harvey Nuckolls and J.S. Reef, partners, and Emmet Nuckolls and G. Harvey Nuckolls, to recover damages for the death of plaintiff's husband, who was shot by an alleged servant of defendants. From a judgment for defendants, entered on an order sustaining their demurrers to the complaint, plaintiff brings error. Affirmed.

The other facts fully appear in the following statement by REED J.:

This was an action at law brought under the provisions of chapter 27, Gen. St., by plaintiff in error widow and heir at law, to recover damages for the death of her husband, George W. Sagers, alleged to have been shot and killed by William E. Nuckolls. The following are the important allegations contained in the amended complaint "That on said last-mentioned date, and from the month of October, A.D.1883, hitherto the above-named defendants, Reef & Nuckolls, as plaintiff is informed and believes, were, and now are, copartners in business, and doing business in Garfield county, in buying and selling, pasturing, herding, raising and handling, slaughtering, and dealing in cattle, beef, and stock; that, in their cattle and stock business, said defendants Emmet and G. Harvey Nuckolls took possession and used and claimed a large tract of the unsurveyed government lands, situated upon the east branch of Mamm creek, in said Garfield county, state of Colorado, and which said tract said defendants occupied and claimed as their headquarters or home ranch for their said cattle and stock business, and occupied and improved the same by and through their agents and employes and the said G. Harvey Nuckolls, and pretended to own the same and have the right to sell and dispose of the same; but plaintiff alleges that said defendants so claimed and occupied the said public lands without a legal right, under or by virtue of the laws of the United States or of the state of Colorado, so to do. Second. That on the said 7th day of September, and for a long time prior thereto, to wit, from the month of January, A.D.1888, William E. Nuckolls was serving said defendants as an employe, agent, or servant, at and upon the said headquarters, aforesaid; that he worked and labored for the said defendants thereon in farming and herding the stock of said defendants, and among the duties and requirements of said William E. Nuckolls as such servant and employe, and for which he was employed by said defendants, it was his duty, by general direction and instruction of said defendants, to aid and assist said defendants in holding the possession of their said ranch claim, and guns and pistols were provided thereat by said defendants for that purpose, for the use of said William E. Nuckolls and his coservants at all times during said occupation and claim of said ranch claim, and especially on, to wit, the said 7th day of September, 1888, bore (and since said 7th day of September, and now, said coservants are bearing) said arms for said purpose, to wit, the purpose of defending with force and arms, if necessary, the possession of said claim and property for said defendants Emmet and G. Harvey Nuckolls against all comers and claimants, and particularly against the said George W. Sagers, the then lawful claimant of a portion thereof. Third. That said defendants, by and through their said servant, William E. Nuckolls, aforesaid, who was then and there engaged and employed and armed and directed by said defendants, as their servant as aforesaid, to hold and maintain them in their possession of said land, and, while the said George W. Sagers was in the act of peaceably and lawfully proceeding through the same, the said William E. Nuckolls pretended and claimed that said George W. Sagers was committing a trespass upon and interfering with the alleged and pretended rights of said defendants, and did, on, to wit, the 7th day of September, A.D.1888, on the said pretended land claim of said defendants aforesaid, negligently, unlawfully, and wrongfully cause the death of him, the said George W. Sagers, being then and there in the peace of the people, by the act of the said William E. Nuckolls, in that said William E. Nuckolls did then and there assault and shoot him, the said George W. Sagers, with a pistol, commonly called a 'revolver,' a deadly weapon, of the size usually carried as a concealed weapon, giving to said George W. Sagers a mortal wound, of which he then and there died; whereby plaintiff was deprived of the care, maintenance, support, and protection of her said husband, George W. Sagers, deceased, to her great damage, to wit, in the sum of five thousand (5,000) dollars, under the statute in such case made and provided." To this complaint demurrers were filed by the defendants individually, the only ground of demurrer being that the complaint did not state facts sufficient to constitute a cause of action. The demurrers were sustained by the court. The plaintiff elected to stand by her complaint. A writ of error was sued out to the supreme court, and the case transferred by that court to this.

Bennett & Bennett and J.E. Havens, for plaintiff in error.

Jos. W. Taylor, for defendants in error.

REED J., (after stating the facts.)

The only question presented is the correctness of the judgment of the court in sustaining the demurrers; in other words, whether the employe is liable in damages, under the statute, for the killing of a person by a servant or employe under the circumstances as stated in the complaint. The provision of the statute upon which the action is based is section 2, c. 27, Gen.St., entitled "Damages:" "Whenever the death of a person shall be caused by a wrongful act, neglect, or default of another, and the act, neglect, or default is such as would, if death had not ensued, have entitled the party injured to maintain an action, and recover damages in respect thereof, then, and in every such case, the person who, or the corporation which, would have been liable if death had not ensued, shall be liable to an action for damages, notwithstanding the death of the party injured." An examination of the section of the statute under consideration will show that it provides generally for compensation "whenever the death of a person shall be caused by a wrongful act, neglect, or default of another." The circumstances must be such as to entitle the injured party to damages if death had not ensued, but affording no guide as to the circumstances under which the principal or master shall be held liable; hence the liability must be determined by the rules and principles of the common law. In 1880 (43 & 44 Vict. c. 42) an act entitled the "Employers' Liability Act" was passed by the English parliament, which, while more elaborate, explicit, and detailed than our statute legally amounts to the same thing; and in fixing the liability the courts, in every instance, are compelled to have recourse to the common-law adjudications. The solution of the question presented is one of great difficulty. While the general principles and rules of law controlling in such cases are so clearly stated as to render them almost axiomatic, and each rule is stated many times in different language, the principle and result being the same, the trouble has been, and still is, the application of the rules. The conflicting decisions in applying the principles are so numerous as to produce confusion as soon as an examination is undertaken. The liability of the master for the wrongful acts of a servant is predicated upon the maxim "qui facit per alium facit per se," and is in direct conflict with the broad and universal doctrine of personal liability for wrongs perpetrated. Consequently, in applying it, great care is taken in restricting it clearly within legal limits. The great multiplication of corporations, where all acts are necessarily performed by agents or servants, has latterly led to the extension and widening of the application in many cases, in order to afford the requisite protection, and from such necessity courts have gradually extended the principle to cover cases not formerly supposed to be embraced.

The complaint in the case is very carefully drawn. In order to apply the law, an analysis of the complaint is necessary First. It is alleged that Reef & Nuckolls, a firm composed of J.S. Reef, Emmet Nuckolls, and G. Harvey Nuckolls, "were buying and selling, pasturing, herding, raising and handling, slaughtering, and dealing in cattle, beef, and stock." In the second paragraph it is alleged that "William E. Nuckolls was serving said defendants as an employe, agent, or servant at and upon the said headquarters, aforesaid; that he worked and labored for said defendants thereon in farming and herding the stock of the said defendants. ***" Second. Taking up the other branch, it is alleged, in the first paragraph, "that, in their cattle and stock business, Emmet and G. Harvey Nuckolls took possession of and claimed a large tract of the unsurveyed government lands, *** which said tract said defendants occupied and claimed as their headquarters or home ranch for their said cattle and stock business, and occupied and improved the same by and through their agents and employes and the said G. Harvey Nuckolls, and pretended to own the same and have the right to sell and dispose of the same: but plaintiff alleges that said defendants so claimed and occupied the said public lands without a legal right under or by virtue of the laws of the United States or of the state of Colorado." In the third paragraph it is alleged that William E. Nuckolls, who was engaged, employed, and armed by defendants "to hold and maintain...