Sherley v. Billings
| Decision Date | 20 September 1871 |
| Citation | 71 Ky. 147 |
| Parties | Sherley, & c. v. Billings. |
| Court | Kentucky Court of Appeals |
APPEAL FROM JEFFERSON COURT OF COMMON PLEAS.
I. & J CALDWELL, HAMILTON POPE, For Appellants,
Story on Agency, sections 314, 318, 316, 454, page 616.
Salk 282, Middleton v. Fowler.
Revised Statutes, section 2, chapter 7, 1 Stanton, 202.
Am. Law Reg. 621, Oct. 1870, Little Miami R. R. v. Wetmore.
Smith on Master and Servant, 157.
Shearman & Redfield on Negligence, secs. 55, 59-66, 261-263.
Hail & Colt, 541, Simpson v. London General Omnibus Co.
Angell on Carriers, section 604 and note 4.
2 Comstock, 479, Vanderbilt v. Richmond Turnpike Company.
19 Wendell, 345, Wright v. Wilcox.
1 East 67, McManus v. Crickett.
16 B. Monroe, 582-3, Kountz v. Brown.
1 B. Monroe, 96, Ferguson v. Terry.
1 Blackstone, Chitty's edition, 431, notes 24 and 26.
10 Wisconsin, 393, Milwaukie Railroad v. Finney.
12 Allen, 35, Howe v. Newmarch.
8 Barb. 368, Brand v. Railroad.
4 Gray, 465, Moore v. Railroad.
7 H. & N. 355, Seymour v. Greenwoood.
42 Pennsylvania, 365, Pennsylvania Railroad Co. v. Vandiver.
17 New York, 364, Weed v. Railroad.
7 Am. Law Register, new series, 14, Railway v. Hinds.
14 Howard, 468, Railroad v. Derby.
34 Connecticut, 554, Flint v. Transportion Company.
1 Clifford, 145, Nieto v. Clark.
CLEMMONS & WILLIS, For Appellee,
Am. Law Reg., January, 1871, Goddard v. Grand Trunk R. R.
Shearman & Redfield on Negligence, sections 266, 2, 59, 65.
Parsons on Contracts, 696, et seq.
Story on Agency, section 452.
Smith on Master and Servant, 152.
Abbott on Shipping, 211.
Angell & Ames on Corporations, section 388.
Revised Statutes, section 2, chapter 7, " Boats and Navigation."
Angell on Carriers, section 572.
4 Metcalfe, 49, Farwell v. Boston.
5 Duer, 193, Weed v. Panama R. Co.
36 New York, 378, Merrick v. Eighth Av. R. Co.
1 Duer, 253, Caldwell v. Murphy.
49 Maine, 279, Edwards v. Lord.
16 Illinois, 538, Galena & Chicago Railroad Company v. Fay.
17 B. Monroe, 110, Hawkins & Co. v. Riley.
34 New York, 87, N. Y. & N. H. R. R. Co. v. Schuyler, & c.
14 Howard, 487, Philadelphia & Reading Railroad Co. v. Derby.
9 Car. & Payne, 607, Sleath v. Wilson.
15 Arkansas, 118, Duggins v. Watson.
1 H. & C. 526, Limpus v. London Omnibus Company.
21 Howard, 202, Philadelphia & Baltimore Railroad v. Quigley.
6 Jurist, new series, part 2, page 143.
17 New York, 362, Weed v. Panama Railroad.
16 B. Monroe, 582, Kountz v. Brown.
9 Dana, 468, Smith v. Shackleford.
Charles H. Billings, a boy about fifteen years of age, while a deck-passenger on the steamer Ben Franklin, was assaulted and stricken down by an officer of the boat, and, among other injuries received, one of his eyes was totally destroyed.
This suit against Sherley and others, owners of the Ben Franklin, was brought by appellee to recover damages for the injuries thus sustained at the hands of their officer and employee. A trial resulted in a verdict in his favor for the sum of four thousand four hundred dollars. Judgment was rendered upon this verdict, and a motion for a new trial having been overruled, appellants have prosecuted this appeal.
The third clerk of the boat, one Williams, was charged with the duty of collecting the passage-money due from the deck-passengers. While engaged in the performance of this duty he approached Billings and demanded his fare, which was promptly paid. The clerk immediately charged him with having hidden under the boilers, and the charge being denied, the assault was instantly made and the injuries complained of inflicted.
Appellants deny their responsibility as owners of the boat and employers of this officer for the consequences of his willful and unauthorized tort; insisting that the act complained of was not done by the clerk in the discharge of any duty imposed upon him by the terms of his employment, nor under authority from them, either express or implied, and that it has not been ratified by them by the retention in their employ of such officer.
They complain that the court below erred as to the law of the case, and not only misinstructed the jury, but permitted improper testimony to be heard and considered.
A brief review of the principles by which the rights of the parties to this action must be determined will enable us the more readily to test the legal accuracy of the instructions given and refused on the trial.
Ordinarily the master is not liable to answer in a civil suit for the wrongful or tortious act of his servants, unless it is done in the course of his employment. If the servant goes beyond the scope of his employment he is as much a stranger to his master as to any third person, and his acts can in no sense be regarded as the acts of his master. It is not enough that the trespass be committed while the relation of master and servant exists; nor that the servant is then engaged in the business of his master; he must at the time be acting for him and in his name. The difficulty in this case grows out of the application of these principles to the facts presented by the record. Where there has been no statutory modification of the common law, and where the party injured is a stranger to the master, having no claims upon him for protection from insult or injury, he is no more responsible for the action of the servant, not done with his assent nor within the scope of his employment, than for the actions of a mere stranger.
In this case the appellants are common carriers of passengers. They do not undertake absolutely to insure the safety of those subjecting themselves to their control; but the law holds them to " the strictest responsibility for care, vigilance, and skill on the part of themselves and those employed by them." They are required to behave toward their passengers " with civilty and propriety, and to have servants and agents competent for their several employments, and for the default of [their] servants or agents in any of the above particulars, or generally in any other points of duty, the carrier is directly responsible." (2 Parsons on Cont., 5th ed., 225.)
Every individual who commits his person to the custody and government of others has the right to expect from them the highest practicable degree of care and skill. So likewise has he the right to expect protection from injuries or outrages at the hands of strangers or of fellow-passengers, if by the use of reasonable foresight such injuries could have been anticipated and averted. This protection passengers upon steamboats must receive from the officers of the vessels, and it is one of the stipulations of the implied contract between the carrier and the passenger that such protection shall be afforded by these officers. They represent the carrier, are selected by him, and it is his imperative duty to see that the passenger is treated by them with " civility and propriety."
If these officers fail to use reasonable diligence in the protection of the passenger from injuries at the hands of strangers or other passengers the contract is violated, and the carrier can be held responsible for such damages as the injured passenger may have sustained by reason of such failure. To our minds both the reason and philosophy of the law demands that such contract shall protect the passenger from injuries and insults at the hands of those who, for the time being, are intrusted with the custody of his person.
As held by the Supreme Court of Maine in a recent case: (Goddard v. Grand Trunk Railway Company, American Law Register, January, 1871, 57 Maine, 202.)
A due regard for the safety and comfort of the traveling public demands that the contract between the carrier and his passengers shall be so construed, and in cases of its violation in this regard that the aggrieved party...
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