Varnes v. Seaboard Air Line Ry. Co.

• Decision Date: 29 October 1920
• Citation: 80 Fla. 624,86 So. 433
• Parties: VARNES v. SEABOARD AIR LINE RY. CO.
• Court: Florida Supreme Court

86 So. 433

80 Fla. 624

VARNES v. SEABOARD AIR LINE RY. CO.

Florida Supreme Court

October 29, 1920

Error to Circuit Court, Hillsborough County; F. M. Robles, Judge.

Action by Mamie Varnes, as administratrix of Robert Fox, deceased against the Seaboard Air Line Railway Company. Judgment for defendant upon a directed verdict, and plaintiff brings error.

Affirmed.

Syllabus by the Court

SYLLABUS

Plaintiff has burden of proving agency alleged. In an action for damages for the wrongful death of one caused by a railroad corporation acting through its special agent, servant, or employee, the plea of not guilty does not admit that the person through whose conduct the deceased was killed was the special agent, servant, or employee of the defendant, and the burden of proving the relation is upon the plaintiff.

Court should direct verdict for one party where evidence does not warrant verdict for other. Where the evidence will not warrant a verdict for one party to an action, the trial court should direct a verdict for the opposite party.

COUNSEL

Dickenson & Dickenson, of Tampa, for plaintiff in error.

Knight Thompson & Turner, of Tampa, for defendant in error.

OPINION

ELLIS J.

This was on action by Mamie Varnes, as administratrix of the estate of Robert Fox, who was her son, against the Seaboard Air Line Railway for damages for his alleged wrongful death. The declaration in three counts alleges in substance that on the night of June 7, 1917, Robert Fox was a trespasser upon a freight train of the defendant company running between Jacksonville and Tampa; that C. C. Hicks was a special agent or special officer, servant, agent, and employee of the defendant charged by it with the special duty and authority of protecting said train from trespassers and preventing the intrusion of trespassers upon the said train, and preventing trespassers from stealing rides or transportation or beating their way upon the said freight train. This is the language of the declaration alleging the relation of Hicks to the railroad company: It alleged that Hicks, while acting within the scope of his authority and in the capacity of special agent or special officer of the defendant as aforesaid, sought to prevent Fox from riding or beating his way upon the train, and, to rid the train of the presence of Fox and to eject him from the train while it was in motion, shot and killed him. The second count alleges that Hicks wantonly and willfully ejected Fox from the train while it was in rapid motion, causing him to fall to the ground, which caused his death. The third count alleges that Hicks shot and killed Fox to prevent him from reentering or coming upon the train after Hicks had caused Fox to leave it, and while he was on the ground near the track.

The defendant pleaded not guilty. This was a denial of the defendant's wrongful act. Rule 71, Law Actions.

The defendant's liability for Fox's death existed, it at all, under the doctrine of respondeat superior. Therefore the burden rested upon the plaintiff to show that Hicks was a special agent or special officer, servant, agent, or employee of the defendant, charged by it with the special duty and authority of protecting that train from trespassers and preventing the intrusion of trespassers upon it, or preventing them from stealing rides or transportation or beating their way on it, and that he killed Fox as alleged while Hicks was acting within the scope of his authority as such special agent.

The parties went to trial upon the issue joined, and on motion of the defendant the court instructed a verdict for the defendant. The verdict was rendered and judgment entered for the defendant. The plaintiff took a writ of error.

There was ample evidence to go to the jury upon the question of whether Hicks killed Fox at the time and under the circumstances alleged; but there was no evidence whatsoever sufficient to sustain a verdict for the plaintiff upon the theory that Hicks was the agent of the defendant charged with the duty and authority by the defendant of protecting that train, or any train, from trespassers attempting to steal rides or transportation thereon. Upon the other hand, the defendant called a witness named R. S. Moore, who testified that he was the defendant's special agent, with supervision over the territory from Jacksonville to River Junction; that it was his business to employ and discharge officers for that territory covering the point near Marietta, a short distance from Jacksonville, where Fox was killed; that the witness prescribed the duties of persons employed by him; that he employed Hicks in June, 1917, as watchman in West Jacksonville yards, and his duties were to protect the merchandise cars in the yard from being broken open and entered; that the point near Marietta where Fox was killed is about 2 1/2 or three miles from the West Jacksonville yards; Hicks' authority ended at the west switch in the West Jacksonville yards; the witness had never given Hicks any orders to go to Marietta, nor employed him to do so, nor was any one in Florida authorized to employ him for the defendant to go there, nor did the witness know of Hicks' ever going there, nor did he ever ratify such act. Hicks was not a special officer of the defendant, merely its watchman; he had no business for the defendant or authority from it on the train; his duties were at the west yards at night as watchman. Hicks had never been sent by the witness on that train, or out on the road from...