Toledo v. Harmon

• Decision Date: 31 January 1868
• Citation: 1868 WL 4982,95 Am.Dec. 489,47 Ill. 298
• Parties: TOLEDO, WABASH & WESTERN RAILWAY COMPANYv.ARTHUR HARMON.
• Court: Illinois Supreme Court

47 Ill. 298

1868 WL 4982 (Ill.)

95 Am.Dec. 489

TOLEDO, WABASH & WESTERN RAILWAY COMPANY

v.ARTHUR HARMON.

Supreme Court of Illinois.

January Term, 1868.

OPINION TEXT STARTS HERE

APPEAL from the Circuit Court of Morgan county; the Hon. CHARLES D. HODGES, Judge, presiding.

This action was in case, to recover for injuries received by Harmon, by the running away of his team, caused by an engineer of the road letting off steam from his engine with a loud noise, just as Harmon was crossing the track. The declaration contained two counts, each charging the steam to have been let off wantonly and maliciously, but one stating that the locomotive was standing still, and the other, that, while moving, the steam was let off. The counts differed, too, as to whether the engineer blew the whistle or let off steam.

A demurrer to the declaration was interposed and overruled. Defendants then pleaded the general issue.

For the plaintiff, three instructions were given:

1st. The jury, if they find the defendants guilty, may assess the damages from all the facts, and may include punitive damages, but not to exceed $3,000.

2d. If they find that defendants' engineer, with intent to frighten plaintiff's horses, unnecessarily and wantonly let off steam or blew a whistle, so that plaintiff's horses ran off and injured him, defendants are guilty, unless plaintiff is also guilty of negligence.

3d. Malice in the engineer need not be proved positively, but may be inferred.

For the defendants, nine instructions were asked, and all but the second and fifth were given:

1st. If the plaintiff's neglect co-operated to cause the injury, defendants are not liable.

2d. If the jury believe the act of the engineer to have been willful and malicious, and that the act was not authorized by any special or general command or permission, expressed or implied, of defendants, defendants are not liable. (Refused.)

3d. Unless they believe the act to have been willful and malicious, as alleged, they must find for defendants. 4th. If the acts were usual and necessary at the time for the proper running of the engine, they will find for the defendants.

5th. If they believe the injury to have been caused by the willful and malicious act of the agent of the defendants, they will find for the defendants. (Refused).

6th. In the absence of evidence to the contrary, the presumption is that defendants ordered their servant in charge of the engine to do lawful acts in a lawful manner.

7th. That unless they believe that the engineer willfully, by his willful and malicious act, so managed his engine as to frighten plaintiff's horses and cause said injury, they will find for defendants.

8th. Unless the jury believe the injury to have been caused by the willful and malicious act of defendants' servant, they will find for defendants.

9th. If, upon the weight of evidence, the jury can conscientiously explain the occurrence upon the theory of accident, and without a willful and malicious purpose, they will find for defendants.

Verdict for plaintiff. Damage, $500. Judgment in accordance therewith.

Motion for new trial by defendants upon the following grounds:

1st. The court admitted improper evidence to go to the jury.

2d. The court erred in giving the 1st, 2d and 3d instructions asked by the plaintiff.

3d. The court erred in refusing to give the 2d and 5th instructions asked by defendants.

4th. The verdict of the jury is contrary to the law and evidence of the case.

Motion overruled and appeal taken.

Messrs. ROBERTSON & BARNES, for the appellant. 1. The court erred in giving plaintiff's second and third instructions, and in refusing defendants' second and fifth instructions. This point presents the question whether a master is responsible for the unauthorized, willful and malicious act of his servant. Negligence in any degree is not the gist of this action. That the master is liable for the unlawful act of the servant, if done under authority or within the scope of the employment, is undoubted. That is not claimed here. If the master receives the fruits of the unlawful or even willful act, then he is liable. This is not claimed here. The courts have gone no farther than this. Illinois Central R. R. Co. v. Read, 37 Ill. 484; St. Louis, Alton & Chicago R. R. Co. v. Dalby, 19 Ill. 360, and cases there cited. In this case, which goes the farthest, the agent was acting under authority, and within the scope of his employment. Here, on the other hand, the act was willful and malicious. The agent used the engine of the corporation as the instrument of his malice. The case would be the same if he had picked up a crow bar belonging to the corporation, and knocked plaintiff down with it. Would the corporation be liable? Clearly not. Illinois Central R. R. Co. v. Downey, 18 Ill. 259; Johnson v. Barber, 5 Gilm. 430; Tuller v. Voght, 13 Ill. 285, (approving McManus v. Cricket, 1 East 106); Armstrong v. Cooley, 5 Gilm. 512; Ross v. Madison, 1 Carter (Ind.) 281; Foster v. The Essex Bank, 17 Mass. R. 509 and 510; Wright v. Wilcox, 19 Wend. 343. These authorities show that, although the principal is liable for the torts and unlawful acts of his agent, if done under authority or within the scope of the employment, yet, he is not liable for willful and malicious injuries.

Messrs. KETCHAM & ATKINS, on the same side, in support of the same view, cite the following additional authorities:

Story on Agency, §§ 456, 318; 1 Hill 480; 3 Smith (N. Y.) 367; 1 East 106; Smith on Mer. law, 69-70; 4 Barn and Ald. 590; 20 Conn. 284; 2 Comstock 479; 5 Blackf. 149; 19 Wend. 343; Smith's leading cases 310.

At common law, a master is not liable for the willful trespass of his servant, which is not committed in the furtherance of his business. Tuller v. Voght, 13 Ill. 277; Johnson v. Barber, 5 Gilm. 425; Foster v. Buck, 17 Mass. 479.

The act must be done in the course of the employment, and not a willful departure from it. See opinion of Judge CATON, 13 Ill. 285; Redfield on railroads, 381-3, and notes; 15 Barb. 574; Ross v. Madison, 1 Carter, 281.

In the case from 15 Barb., the company, it was held, was not liable for a willful act of the servant, although directed to be done by the president, upon the ground that even the president had no authority to command the perpetration of an unlawful act.

Messrs. MORRISON & EPLER, for the appellee.

The engineer of appellants was managing the engine of the company--the business assigned him by his employers. His act was the act of the company, and the action is well laid. See DENMAN Ch. J. in Rex v. Medly, 6 C. and P. 292. “It seems to me both common sense and law, that if persons, for their own advantage, employ servants to conduct works they must be answerable for what is done by those persons.”

By placing the engineer in charge of the locomotive, and suffering him to use the same, in operating the road of appellants, the company consented to be bound by the acts of the servant; his acts bind the company, whether done “negligently or cautiously, heedlessly or purposely.” Redfield on R. R. p. 383, note 6. The case of Illinois Central Railroad v. Reed, 37 Ill. R. p. 509, fully adopts the rule in the above case.

The case in 38 Ill. 167, referred to by appellants, is in no way inconsistent with this position. But the case of the Alton Railroad Co. v. Dalby, 19 Ill. 360, held clearly the same doctrine. That case was in trespass, and rightly; the injury inflicted by the conductor was direct--upon the person of the passenger. The injury in this case was consequential, not direct, and case as against the railroad company is the proper remedy.

Mr. JUSTICE WALKER delivered the opinion of the Court:

The evidence in this record is conflicting, and was properly left to the consideration of the jury. In such cases this court will not disturb the verdict, unless we can see that it is manifestly against its weight. An attentive examination of the testimony fails to satisfy us that the finding is unwarranted. On the contrary, we think it preponderates in favor of the finding of the jury. If the agents and employees of a railroad company, while in the discharge of their duty, act with such negligence as to occasion injury to others who are not in fault, the company must be held liable in damages for the wrong. The well being of society requires these bodies to employ careful and skillful agents, and that they in the performance of their duties shall have due regard to the safety and rights of other persons. They are held to a high degree of caution and skill while exercising and enjoying their franchises. Negligence, or want of skill by their agents, producing injury, will create liability. And when they locate their stations and depots in populous cities and on thoroughfares, they must, for the protection of community be held to a degree of care commensurate with the greater danger such a situation involves. When located at such places, they know the hazard that must ensue, and must be held to an increased degree of care and diligence equal to the greater hazard. The life and property of individuals cannot be lightly or wantonly placed in jeopardy. If that might be done, then these great instruments of prosperity, and agents in the development of the resources of the country, and promoters of its commerce, instead of a blessing, would become a nuisance, if not a curse to our citizens. If the lives of men, or their property, must be endangered in the pursuit of their ordinary and legitimate business, while lawfully passing over our public highways, and no person can be held responsible, then it would be an injury instead of a blessing to community that they were constructed.

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