Welsh v. W. Jersey & S. R. Co.

• Citation: 42 A. 736,62 N.J.L. 655
• Court: United States State Supreme Court (New Jersey)
• Decision Date: 06 March 1899
• Parties: WELSH v. WEST JERSEY & S. R. CO.

42 A. 736

62 N.J.L. 655

WELSH

v. WEST JERSEY & S. R. CO.

Court of Errors and Appeals of New Jersey.

March 6, 1899.

(Syllabus by the Court.)

Error to supreme court.

Action by Edward Welsh against the West Jersey & Seashore Railroad Company. Judgment for plaintiff, and defendant brings error. Affirmed.

Joseph H. Gaskill, for plaintiff in error.

Howard Carrow, for defendant in error.

MAGIE, C. J. The record returned with this writ of error discloses an action of tort by Welsh (an infant suing by a next friend), who is the defendant in error, against the West Jersey & Seashore Railroad Company, which is the plaintiff in error. The declaration charged that the company, by its servants, assaulted Welsh while riding on a freight train of the company, and willfully and maliciously threw him from the train while it was in motion, whereby he was injured. The plea was the general issue. The case was tried in the Camden circuit, and resulted in a verdict for Welsh, on which judgment has been entered in the supreme court. The action shown by the pleadings was against a corporation for an assault and battery committed by it, by its servants. The bills of exception show that, at the close of the evidence for Welsh, it plainly appeared that he was a trespasser upon the freight train in question, having got on it, for the purpose of stealing a ride, without right or permission. But the jury could also find that a person in the employ of the company, and one of those in charge of the freight train, and either a conductor or brakeman, kicked Welsh off the train while it was in motion, and that serious injury to him resulted therefrom.

At the close of Welsh's evidence a motion to nonsuit was made and denied, and an exception was allowed and sealed to the denial, which is made the ground of one of the assignments of error. The motion to nonsuit was pressed upon the ground that, to make out the action shown in the declaration, the evidence must satisfactorily establish that the act which occasioned Welsh's injury was done by the authority of the company, either expressed or implied, and the contention was that, there being no evidence of express authority, there was no justifiable inference from the evidence that the servant,—whether conductor or brakeman,—in ejecting Welsh from the train, had implied authority so to do. At the close of Welsh's case the only evidence from which an implication of such authority could be claimed was that the person who kicked him off the train was an employé of the company, and one of those in charge of the train. But, after the refusal to nonsuit, the company proceeded to call witnesses, and their evidence appears in the bills of exception. Prom that evidence it appears that the train in question was in charge of a freight conductor and several brakemen, and that whatever was done to Welsh must have been done by a brakeman named Selah. It was also made to appear that it was customary for such conductors and brakemen to exclude from freight trains persons attempting to ride thereon, and to expel them from the trains, if they had intruded thereon. All pertinent evidence exhibited in the bills of exception must be considered, in reviewing the denial of a motion to nonsuit; for if, when made, there was a failure of proof in some respect, and the defect was supplied in the evidence afterwards adduced, the error of the refusal will not lead to a reversal of the judgment. Railroad Co. v. Dailey, 37 N. J. Law, 526; May v. Railway Co., 49 N. J. Law, 445, 9 Atl. 688; Association v. Warren, 55 N. J. Law, 598, 26 Atl. 140.

In the argument in the trial court and here, the contention that the evidence in this case did not justify the inference that the servant of the company had authority to eject Welsh from the train was deemed to be supported by the authority of our supreme court in Brokaw v. Transportation Co., 32 N. J. Law, 328. But this involves a misconception of what was decided in that case. The question there considered arose upon a demurrer to a declaration charging a corporation with assault and battery, substantially identical with the declaration contained in the record before us. It was decided that an action for assault and battery would lie against a corporation, and that a demurrer to a charge that a corporation committed assault and battery by a specified servant admitted that such servant had competent authority from the corporation. Questions involving analogous principles have been considered in our courts, and it is now thoroughly settled, here as elsewhere, that corporations are liable for torts which they may commit by agents, and that the pertinent inquiries, when such liability is charged, are (1) whether the act in question is one within the scope of the corporate powers, and (2) whether it was done by a person who was the agent of the corporation in doing it. McDermott v. Association, 43 N. J. Law, 488, 44 N. J. Law, 430; Publishing Co. v. Kahn, 59 N. J. Law, 218, 35 Atl. 1053; Dock v. Manufacturing Co., 34 N. J. Law, 312. Upon the case presented by the evidence, it is obvious that the company had the right to remove from its freight train Welsh, who was a trespasser thereon, which right grew out of its corporate authority to manage and run such trains. As it could only eject such a trespasser by agents, it could lawfully employ such agents for that purpose. The company could intrust the ejection of such a trespasser to one or more of its servants by a particular direction in a particular case, or by general instructions respecting a class of trespassers. Authority thus expressly given would charge the company with liability for the act of a servant in ejecting a person not a trespasser, or in using excessive or inappropriate force in removing one who was a trespasser; and this notwithstanding the authority conferred was limited to the removal of trespassers, and the use of any but reasonable and necessary force was prohibited. The responsibility of the corporation is that of a master, who, under the maxim, "Respondeat superior," must answer for injuries done by acts of his servant in the prosecution of his business within the scope of his employment. Driscoll v. Carlin, 50 N. J. Law, 28, 11 Atl. 482.

Authority which could thus be expressly conferred upon a servant may, no doubt, be implied to have been conferred from the nature and circumstances of his employment. The inference of implied authority thus arising, it is obvious that it is difficult, if not impossible, to formulate rules upon the sufficiency of evidence to establish such authority. In general, it may be said that, when the act which occasioned the injury for which the master is sought to be charged is shown to have been done by the servant in the course and within the scope of his employment, then the implied authority is Inferable....