Campbell v. Northern Pacific R.

51 Minn. 488 | Minn. | 1892

Vanderburgh, J.

The defendant Northern Pacific Beneficial Association is alleged in the complaint to be an agency of the defendant railway company for the care of persons injured in the operation of the railroad. The defendant McGregor was one of the physicians and surgeons employed for such purpose, having the charge and oversight of this special service, and was the representative of the association and railway company in and about the same. The plaintiff also alleges that while the defendant McGregor was so in the line and in the course of the discharge of his said duty as such authorized agent and servant of said association and of said railway company as aforesaid, and on, to wit, January 15, 1892, in said county, said defendant McGregor did willfully and maliciously assault said plaintiff, and then and there strike, beat, bruise, and batter, insult,- and injure the plaintiff, for which she claims damages. She also-sets up a cause of action for alleged defamatory and slanderous language used by McGregor in the course of his employment of and concerning the plaintiff. To these separate causes of action the defendant interposed demurrers, which were overruled by the court, and this appeal brings before us the sufficiency of-the complaint.

The nature of the employment of the defendant association and of McGregor is stated, and also the fact that plaintiff was a servant employed by such association, and was under the direction and subject to the orders of McGregor.

It will be observed that the business in which McGregor was employed was superintending the care of sick and injured persons, and it is alleged generally that any and all acts done and performed by him as such physician, etc., were the acts of his principal. But there is clearly nothing in the complaint to warrant the inference or conclusion that the abusive language of McGregor was the act of his superiors, nor do we see that the alleged assault can be considered in any other light than an independent tort, which it presumptively was; and the bald statement that it was the act of the principal, or simply done while in the course of his employment, or while in the discharge of his duty, is hardly sufficient to charge the master. The case is quite different from that of an assault upon a patient in charge of the defendants, and to whom they owed the duty alleged, in which case the rule stated in McCord v. Western Union Tel. Co., 39 Minn. 181, (39 N. W. Rep. 315,) would apply. An assault upon a patient to whom the defendants owed a special duty, and alleged to have been done in the course of the employment, would present an entirely different case. But it does not appear that there was a breach of any duty owed by defendant corporations to the plaintiff which their steward, McGregor, violated in the acts alleged, or that the wrong complained of was expressly or impliedly authorized by the railway company, or how it could be committed in the course of McGregor’s employment, or in furtherance of the master’s business.

Order reversed.

(Opinion published 53 N. W. Rep. 768.)