Texas & P. Ry. Co. v. Scoville

• Decision Date: 22 May 1894
• Docket Number: 208.
• Parties: TEXAS & P. RY. CO. v. SCOVILLE.
• Court: U.S. Court of Appeals — Fifth Circuit

62 F. 730

TEXAS & P. RY. CO. v. SCOVILLE.

No. 208.

United States Court of Appeals, Fifth Circuit.

May 22, 1894

T. J Freeman, for plaintiff in error.

C. C Leverett and R. C. De Graffenried, for defendant in error.

Before McCORMICK, Circuit Judge, and LOCKE, District Judge.

McCORMICK Circuit Judge.

P. A Scoville, the defendant in error, brought this action against the Texas & Pacific Railway Company, the plaintiff in error to recover damages for injuries he claimed to have received from the willful and wanton misconduct of its servants while engaged in its business. The part of his pleading pertinent to the questions raised on this writ of error is as follows:

'Plaintiff, for cause of action, alleges that on the 2d day of May, 1891, he was riding on horseback (returning home from Longview, Texas) along a public road running parallel with said railway of defendant company (said road on which plaintiff was so riding on horseback being about twenty-five yards south of said railway), and that defendant company, its agents and employes, knew or could have known of the existence of said public road, and its proximity to said defendant company's railway, the same having been used by the traveling public for the period of fifteen years for travel, and in full view of said railway company's agents and employes; that immediately south of the road on which plaintiff was riding was a fence; that while plaintiff was passing along said road, as above set forth and described, the place on said road on which he was riding as above indicated being about one-fourth of a mile from said town of Longview Junction, a point on said railway, a train of cars in charge of, and under the control of, the agents and employes of defendant company, while coming east from said Longview Junction, while nearing the plaintiff, and when directly opposite the plaintiff, the agents and employes of the defendant company, with the intention to frighten plaintiff's horse, commenced, and continued until some distance beyond plaintiff, to blow the whistle of the engine of said train of cars in a manner most calculated to frighten and render unmanageable horses and other domesticated animals; that the manner of blowing said whistle at the time and the place above mentioned was not called for nor demanded by any event or circumstances within the range of defendant company's legitimate business; that when the agents or employes of defendant company began to near, and until they were beyond, plaintiff's horse, they began to give, and continued to give, keen and frightful sounds, in quick and rapid succession, by means of the whistle, the immediate effect of which was to frighten the plaintiff's horse, which he was then and there riding, causing his horse to leap and jump with him in the most violent manner; that, by reason of such violent capering and jumping of his horse, he, the plaintiff, was placed in great danger of being killed and greatly injured, and was seriously and permanently injured. Plaintiff states that the agents and employes of the defendant company saw the effect of said frightful noise on plaintiff's horse when the whistling commenced, and while the same was going on, and might have ceased making the same, and thereby prevented the said injuries, or greatly lessened the same, but for no legitimate purpose, willfully, knowingly, negligently, wantonly, and intentionally, and only for the purpose of gratifying a base curiosity and malignant spirit, they commenced and continued blowing said whistle in the most frightful manner of which they were capable.'

The answer of the railway company is not brought up in the transcript, but it appears from the judgment of the circuit court that a general demurrer to the plaintiff's petition was overruled. Four errors are assigned, but each involves substantially the same question, which the counsel for the railway company, in his printed brief, propounds as follows:

'Is a master responsible for the willful, wanton, and malicious acts of his servants, not done for the master's benefit, and not within the scope of the employment of the servant, and not done by the authority or under the order of the master, but committed willfully, maliciously, and exclusively for the servant's private ends or malice?'

The counsel formulates his answer to his question thus:

'A master is not liable for the willful, wanton, malicious, and deliberate wrongs committed by the servant, not done on the master's account or to further his interest, but done willfully, maliciously, and exclusively for the servant's private ends or malice.'

It will be observed that both the question and its answer, as propounded by counsel, are somewhat broader in their terms than the question strictly raised by the general demurrer to the pleading of the plaintiff. The question stated by counsel has exercised judicial inquiry and deliberation from the earliest times. In the often-quoted case of McManus v. Crickett, 1 East, 106, decided in the first year of this century, Lord Kenyon said:

'It is a question of very general concern, and has been often canvassed, but I hope at last it will be at rest. * * * When a servant quits sight of the object for which he is employed, and without having in view his master's orders, pursues that which his own malice suggests, he no longer acts in pursuance of the authority given him, and his master will not be answerable for such acts.'

In the familiar case of Wright v. Wilcox, 19 Wend. 343, Judge Cowen says:

'The line where the master's liability shall terminate must be placed somewhere, and the acquiescence of Westminster Hall for many years on the rule we have cited, as laid down by Lord Kenyon, is an evidence of the common law not to be resisted, especially as it will not be found, I imagine, to conflict with any general principle of that law.'

In Isaacs v. Railroad Co., 47 N.Y. 122, Judge Allen, in referring to the case of Hibbard v. Railroad Co., 15 N.Y. 455, says:

'Some of the expressions in the opinions of the judges * * * are open to criticism, as not in harmony with the later authorities, and would not probably be regarded as sound, although they are supported by the earlier cases and by the elementary authorities;' citing McManus v. Crickett and the authorities therein cited, and Wright v. Wilcox.

In Howe v. Newmarch, 12 Allen, 49, it was held that if the act was done by the servant in the execution of the authority given him by his master, and for the purpose of performing what the master had directed, the master will be responsible, whether the wrong done be occasioned by negligence, or by a wanton and reckless purpose to accomplish the master's business in an unlawful manner.

In Wallace v. Navigation Co., 134 Mass, 95, it is said:

'The instruction given treats the defendant as exonerated from responsibility if the act done by its servant was wanton and malicious, and disregards the inquiry whether he was acting under the general authority of the defendant, as master, and for the purpose of doing its work. There are respectable authorities, certainly, such as Turnpike Co. v. Vanderbilt, 1 Hill, 480, and Wright v. Wilcox, 19 Wend. 343, which hold that where the acts of a servant are willful the master is not responsible, even if they are done in the performance of his business, because such willful acts are held to be a departure from the master's business.'

The court then cites Howe v. Newmarch, supra, as holding that the act being willful or malicious is not sufficient to effect a departure from the master's business, and says that case has been since repeatedly recognized, and seems to express the true rule to which it relates.

In Rounds v. Railroad Co., 64 N.Y. 129, it is said:

'It is quite useless to attempt to reconcile all the cases. The discrepancy between them arises, not so much from a difference of opinion as to the rule of law on the subject as from...