91 Pa. 442 | Pa. | 1880
delivered the opinion, of the court,
The main question in this case is, whether upon the allegations of fact on which the plaintiff in the court below relied, and which must have been found by the jury, the action of trespass vi et armis can be sustained? He contended that the ticket which he purchased and tendered to the conductor was a round trip ticket from Brookville to DuBois; that it was a general ticket, containing no condition limiting its use to trains running between the points
The case thus hinged upon these questions of fact, and in order to reach a verdict in favor of the plaintiff below the jury must have found that, the ticket he tendered was unlimited and gave him a general right to ride in defendant’s cars. From this it would follow that the conductor was guilty of a trespass if he forcibly ejected the plaintiff' from the cars; but, would his employer, the company, be liable unless there was evidence to show that it directed or authorized the act ? We think not. It will not do to say that the conductor was acting within the scope of his authority in ejecting from the cars a passenger who tendered an unlimited ticket and had a right to be there. Such authority is not to be presumed, and there is not even a scintilla of evidence that he had any such instructions from the company, express or implied. We have then, upon the plaintiff’s own showing, an action of trespass vi et armis brought against the employer for an act done by the servant, without the authority, assent or even knowledge of the former. It is well settled that under such circumstances this form of action will not lie. To maintain trespass vi et armis against the employer it must appear that the particular injury or act of trespass was done by his command or with his assent: Philadelphia, Germantown and Norristown Railroad Co. v. Wilt, 4 Whart. 142; Yerger et ux. v. Warren, 7 Casey 319. It follows, therefore, that the learned judge erred in not instructing the jury as requested in defendant’s first point, that the plaintiff upon the evidence in the case could not recover in the present form of action.
There is nothing involved in any of the assignments of error that calls for further notice. Judgment reversed.