135 N.W. 189
N.D.
1912
Bruce, J.

(after stating facts as above). The first point to be *621considered is whether the statute of limitations ran against the action in question. The presumption of law is that a public officer does and will do his duty. Section 2503 of the Code of 1905 makes it the duty •of the sheriff to “indorse upon all notices and process received by him for service, the year, month, day, hour, and minute of reception, and issue therefor to the person delivering it, on payment of his fees, a certificate showing the names of the parties, title of paper, and time •of reception.” Section 6795 of the Revised Codes provides that “an attempt to commence an action is deemed equivalent to the commencement thereof within the meaning of this chapter when the summons is delivered with the intent that it shall be actually served, to the sheriff.” While § 7317 of the Code provides that the presumption that official duty has been regularly performed is satisfactory if uncontradicted. In 25 Cyc. 1424, it is stated: “It will be presumed that the indorsement on a complaint of a certificate showing the date of filing, when made by the clerk of the court, is correct,” while in the case of Lewis v. Seattle, 28 Wash. 639, 69 Pac. 393, where the filing-marks of the complaint showed that the action was commenced within the statutory period, but the appearance docket indicated that it had been commenced one day later, and no. evidence was introduced to show the true date, the court held that “the court will presume as against the statute of limitations where these dates disagree and no showing is made of the true date, that the certificate on the complaint shows the true date.” It is presumed that an officer does his duty, and that his proceeding’s are regular. There seems in this case to be no evidence which even tends to disprove the contention that the summons .and complaint were delivered to the sheriff for service upon the date .stamped thereon, and it is clear from the authorities and from our .-statute that an action is commenced, so far as the statute of limitations is concerned, when the writ is filled out and delivered to the proper officer, with the bona fide intent to have it served at once, and not at the time that the actual service is made. Ewell v. Chicago & N. W. R. Co. 29 Fed. 57; Evans v. Galloway, 20 Ind. 479; Hampe v. Schaffer, 76 Iowa, 563, 41 N. W. 315; Johnson v. Farwell, 7 Me. 370, 22 Am. Dec. 203; McCracken v. Richardson, 46 N. J. L. 50; Davis v. Duffie, 18 Abb. Pr. 360; Riley v. Riley, 141 N. Y. 409, 36 N. E. 398; reversing 64 Hun, 496, 19 N. Y. Supp. 522; Goldenberg v. Murphy, *622108 U. S. 162, 27 L. ed. 686, 2 Sup. Ct. Rep. 388. We do not think that the action was barred by the statute of limitations.

When we pass on to the merits of the case we find a sharp conflict, in the evidence as to who was the aggressor in, and the reasons for, the physical controversy. We can find nowhere in the record the-charge of the court to the jury, though the record shows that a charge was given. In its absence we must conclude that all questions were propertly submitted to the jury, and since a verdict was rendered for the plaintiff we must conclude that these questions were resolved by the jury in favor of the plaintiff. The only questions, then, for us to-consider are whether the plaintiff was a passenger, and, if a passenger, whether'the railway company was liable to him for the assault, or, if not a passenger, whether the company, as a telegraph company in the transaction of the business as such, was responsible for the assault of its servant, Holiday, upon him.

We are clearly of the opinion that the plaintiff in this case was not a passenger at the time of the altercation, and that his right of recovery, if any, cannot be based upon that theory. His own evidence conclusively shows that he had no intention of taking a train that night, and that he was not at the time of the altercation upon the premises of the company either for the purposes of taking a train, or after having alighted from one. A passenger has been defined to be “one not a servant of the carrier who, by the consent of the carrier, express or implied, is being transported in the vehicle of the carrier from place to place, or who is at a station of the carrier with the intention of at once, or as soon as possible, entering upon such relation.” Van Zile, Bailm. & Carr. § 594. There is no question that “a person who goes into the station of the carrier with the bona fide intention of becoming a passenger is entitled to the privileges and the rights of a passenger, at least so far as the safety of his person from abuse or assault, or defects in the station platforms, etc., is concerned.” Van Zile, Bailm. & Carr. § 596, and cases cited. It is also probably true that the relationship continues while the traveler is on the premises of the carrier, even after he has alighted from the vehicle, for a period of time reasonably necessary to enable him to leave the premises. Van Zile, Bailm. & Carr. § 605, and eases cited. We can find, however, no authority to support the proposition that it continues for any longer period.

*623But the evidence shows, and counsel for appellant admits, that the-defendant was, at any rate, engaged in the business of a telegraph company, and in such capacity was dealing with the plaintiff at the time of the assault. The evidence is clear that it took and transmitted messages, and that it was for the purpose of sending messages that" the-plaintiff was upon the premises at the time of the alleged assault. It is also clear that it was while discussing the plaintiff’s failure to deliver the message received by the company in the morning and directed to-the plantiff that the controversy occurred. Plaintiff was not a trespasser, nor was he- merely a licensee. He was on the premises of the company or in their telegraph office on business connected with the business of the company as a telegraph company and at its implied invitation. He was there as a customer or patron, and not as a licensee or as a trespasser. It is undisputed that the company, for some reason or other, had failed to promptly deliver to him a death message in the morning. It is also undisputed that plaintiff went to the telegraph office in the evening for the purpose of sending some other messages, and that while there and after being told that such other messages could not be sent, he asked why the message in the morning had not been delivered to him, and that it was in discussing this matter that the controversy arose. There is, it is true, a conflict in the testimony as to who was the aggressor, but there is certainly enough evidence in the record to justify the jury in finding the facts for the plaintiff; at least it is a mere question of the credibility of the witnesses. It is also undisputed that the message which was addressed to the plaintiff and received in the morning was in relation to the death of a relative; that on account of the failure to deliver it he was unable to attend the funeral, and it was not unreasonable for him to ask for an explanation in the premises. Of course, if, as the witness Holiday testifies, the plaintiff dared him to come out into the other part of the office and settle the matter, or if the plaintiff himself intentionally provoked the assault, the company should not be held liable; but these matters have been decided by the jury, and we cannot interfere with their decision.

It is, of course, well established that the doctrine of respondeat superi- or does not, as a rule, apply where the tortious acts of the servant are not done in the course of his employment, but from personal malice. To use the language of Judge Cooley, “The liability of the master for *624intentional acts which constitute legal wrongs can only arise when that which is done is within the real or apparent scope of the master’s business. It does not arise where the servant has stepped aside from his employment to commit a tort which the master neither directed in fact, nor could be supposed from the nature o.f his employment to have authorized or expected the servant to do.” Cooley, Torts, 2d ed. p. 627. This general rule, however, has been generally stated in cases where the main transaction in furtherance of which the tort was committed was not within the actual or apparent scope of authority. The learned judge illustrates this point as follows: “So, if the conductor of a train of cars leaves his train to beat a personal enemy, or from mere wantonness to inflict any injury; the difference between his case and that in which the passenger is removed from the cars is obvious. The one trespass is the individual trespass of the conductor, which he has stepped aside from his employment to commit; the other is a trespass committed in the course of his employment in the execution of orders the master has given, and apparently has the sanction of the master and contemplates the furtherance of his interests.” See Cooley, Torts, 2d ed. p. 628. The rule in its entirety is perhaps as well stated in the editor’s note following Franklin F. Ins. Co. v. Bradford, 88 Am. St. Rep. 770, 792, as anywhere else. “Where an agent,” the editor says, “steps aside from the performance of the business for which he was employed by his principal and embarks upon a matter of his own, the principal is not liable for the consequences of the agent’s act while so engaged. If, while engaged in executing the employment of his principal, he so conducts himself, whether negligently or maliciously, as to injure another, his principal will be liable. If, however, he forsakes such employment, and purely, for his own benefit or to gratify some personal hate, does an act unconnected with the service of his principal, the latter is not responsible for its consequences. The agent may immediately, after the commission of the act, resume the performance of the duties of his agency, and in the commission of the tort may have employed the instrumentalities furnished by the principal for the proper performance of his duties. As to the act itself, however, the doctrine of respondeat superior is inapplicable, and no liability therefor can attach to the principal.” The question in the case at bar is whether the agent, Holiday, *625at the time of committing the tort in question, was connected or unconnected with the service of his principal.

There is absolutely nothing in the contention of the respondent that Holiday committed the assault while attempting to preserve order in the depot and while acting in the capacity of a policeman. The only -evidence which in any way tends to prove this contention is the statement of Holiday that it was his duty to preserve such order; but all the facts of the case, and his own admissions, conclusively show that he went out “to fix the plaintiff or let the plaintiff fix him,” and that his main purpose was to satisfy his own anger and resentment, and not to preserve order, and the interests of his employer was the last consideration which actuated him. If we sustain the judgment in the case, then, it cannot be upon the theory that the plaintiff was a passenger, or that he was illtreated while the defendant’s agent was seeking to preserve ■order, or that the agent was really acting with the interests of his employer in mind, though overzealously, but upon a theory which is more general and universal.

It would seem from the facts that the case comes clearly within the rule laid down in Dickson v. Waldron, 135 Ind. 507, 24 L.R.A. 483, 41 Am. St. Rep. 440, 34 N. E. 506, 35 N. E. 1, where a patron of a theater was assaulted by the ticket agent in a controversy arising out of a claimed shortage in change. In this case a ticket had been sold to the plaintiff, and he afterwards went back to the ticket office, claiming that short change had been given to him. The court held that though the assault was committed in excess of the authority of the agent, it was still committed while he was acting as ticket agent, and as the result of a controversy arising out of the discharge of his duties. The assault in the case at bar was certainly committed in a controversy arising out of a transaction of the company and while the plaintiff was asking questions which he had a perfect right to ask the agent in relation to such business. In the Dickson Case, above cited, the court said that “the trouble was occasioned entirely by a dispute as to the purchase of tickets, and both the ticket seller and the doorkeeper acted within the business of their employment, maintaining that side of the controversy which was their master’s interest.” So, too, the Dickson Case is authority for another proposition which also seems applicable to the case at bar and sound in principle, and that is that there is a difference be*626tween a licensee and a patron, and that a patron is entitled to a consideration, which, perhaps, need not always be accorded to a licensee. “But common carriers, innkeepers, merchants, managers of theaters, and others who invite the public to become their patrons and guests, and thus submit personal safety and comfort to their keeping,” says the court in the Dickson Case, “owe a more special duty to those who may accept such invitation. Such patrons and guests have a right to ask that they shall be protected from injury while present on such invitation, and particularly that they shall not suffer wrong from the agents and servants of those who have invited them.” See also Chicago & E. R. Co. v. Flexman, 103 Ill. 546, 42 Am. Rep. 33; Craker v. Chicago & N. W. R. Co. 36 Wis. 657, 17 Am. Rep. 504.

The case of Richberger v. American Exp. Co. 73 Miss. 161, 31 L.R.A. 390, 55 Am. St. Rep. 522, 18 So. 922, is very much in point. In it plaintiff has been made to pay an overcharge by a local express agent, and took the matter up with the general superintendent, who stated that the matter would be arranged. Later he went to the local express office to transact some other business, when the local agent in charge informed him that he desired to refund the overcharge to him, and then and there returned such overcharge. He at the time, however, required the plaintiff to sign a receipt for the same, and immediately on the reception of the receipt, and while the plaintiff was in the office of the company, cursed and insulted, and otherwise maltreated him. The Mississippi court sustained an action against the express company, and stated that the true test of liability was “not whether the tort was committed in pursuance of orders from the master, or against orders, whether the master ratified or not, whether the tort was wilful and malicious or not, but whether, and solely whether, the act constituting the tort was done in the master’s business.” In answer to the suggestion that the rule of strict liability as laid down in the case of Craker v. Chicago & N. W. R Co. supra, only applied to carriers of passengers on account of the fact that the passengers were more or less within their power and control, the Mississippi court said: “Doubtless there is a difference in the extent of the application of the principle as between carriers of passengers and' express companies, measured exactly by the difference in the things done by them in the discharge of their duties, respectively. But the principle applies to both. An express company does not transport passengers, and *627cannot be made liable as a carrier of passengers might for wilful torts committed by its agents on passengers in their transportation; but it keeps offices for the transaction of its proper business, a business calling to its offices every day thousands of citizens, and in its dealing with its customers in its offices, in its business, it is bound, in Judge Story’s language, ‘for respectful treatment and for decency of demeanor.’ It is impossible to say on the allegations of this declaration, that the tort committed immediately upon the delivery of the receipt to the agent and because of the demand for the refunding of what was plaintiff’s conceded due, was so separated in time or logical sequence as not to have been an act done in the master’s business. The whole transaction occurred in the shortest time, and was one continuous and unbroken occurrence. The cursing and abusing and maltreatment were all administered in connection with the taking of the receipt, and immediately upon its delivery, and because of the demand of his rights in that matter, and while plaintiff was in appellee’s office to transact and transacting this very business. What was said and done thus immediately upon the delivery of the receipt was part of the res gestae. As well said by Judge Thompson in his Commentaries on Corporations, § 6299, top of page 4928: ‘In this view, even under the modern doctrine, the acts or declarations of the servant or agent, tending to show his state of mind at the time of the act complained of, would be admissible in evidence as part of the res gestae.’ ” The court then concludes by saying: “We close this opinion with the words of the same great judge [Andrews, J.] in the same case [Rounds v. Delaware, L. & W. R. Co. 64 N. Y. 134, 21 Am. Rep. 597] to show here a case of liability: ‘The master who puts the servant in a place of trust or responsibility, or commits to him the management of his business or care of his property, is justly held responsible when the servant, through lack of judgment or discretion, or from infirmity of temper, or under the influence of passion, aroused by the circumstances and the occasion, goes beyond the strict line of his duty or authority, and inflicts an unjustifiable injury upon another.’ ”

Another case that seems equally in point is that of the Georgia R. & Bkg. Co. v. Richmond, 98 Ga. 495, 25 S. E. 565. In it the plaintiff purchased a railroad ticket from the defendant. At the time of such purchase he requested the agent to check his baggage for the train next going to Augusta, upon which he intended, himself, to embark, and *628which was due in a few minutes; this the agent refused, and plaintiff was compelled to miss the train. After the train had passed, and, desiring to avoid further trouble and delay, he again requested the agent to check his baggage for the next morning’s train stating to the agent that he had been badly treated about his baggage and would not soon forget it, or words to that effect, when the agent, without provocation and without notice or warning, made a malicious and violent assault upon him. The court reversed a verdict for the plaintiff because of an instruction in regard to sneering remarks, etc., and for which there was no foundation in the'evidence. On the main questions of the case, however, it said: “We do not think. Richmond was a ‘passenger’ when he returned to the railroad station the last time on the day he claims to have been unlawfully assaulted and beaten by the company’s agent. He had no purpose of taking a train that day, having decided to resume his journey on the following morning. However, he undoubtedly had the right to go to the station for the purpose of looking after his baggage, and arranging to have it checked or safely stored until the next day. If he went there to attend to this business and conducted himself properly, he was entitled to respectful treatment from the agent; and if the latter, under these circumstances, unlawfully assaulted and beat him, it was his right to hold the company responsible in damages. The law on this subject is too well settled to require the citation of authority. It may, in this connection, be proper to add, however, that even if Richmond went to the station for the lawful purpose of attending to the business above mentioned, it was nevertheless incumbent upon him to treat the agent with the same respect due him by the agent. Therefore, if, instead of so doing, he, without provocation, used insulting or opprobrious language to the agent, which naturally enough resulted in a difficulty, the company should not be held responsible. In other words, if Richmond, by his own improper behavior, unfitted the agent from exercising the care and prudence which were essential to the performing in a proper manner his duty to the company and to the plaintiff, the latter should not complain. - The case would then stand somewhat like that of Peavy v. Georgia R. & Bkg. Co. 81 Ga. 485, 12 Am. St. Rep. 334, 8 S. E. 70, in which Judge Bleckley remarked that ‘the plaintiff spoiled the instrument, and then sued the manager because the performer did not make good music. It was the plaintiff’s fault that the [company’s servant] *629was out of tune.’ If, however, the truth be that Richmond went to the station not really for the purpose of transacting any legitimate business with the agent, but simply to upbraid or reproach him because of a real or supposed grievance occurring at an earlier hour of the day, and a difficulty then arose between these men, it was one in which the company had no concern whatever, and should he treated as any other fight occurring between ordinary citizens.”

It would seem, indeed, as if the.true rule was contained in the cases last cited, and the test is whether while dealing with the agent and in a manner that he is authorized or invited to deal with him in, the assault occurred, or whether it was entirely outside of the transaction, although arising out of the transaction, or was provoked by him so as to degenerate into a personal difficulty rather than one between him and the employer. Sending a telegram, asking for change, or complaining because of a delayed telegram, is the transaction with the employer rather than with the agent, and unless the discussion turns into personal vituperation the employer is a person concerned. If, in the case at bar, the testimony of defendant’s witnesses is to be believed, and the jury had found that the assault occurred either because the plaintiff called the witness Holiday a liar, or challenged him to come out and settle the issues with him, the company would not have been in any way liable, and the reasoning of the case of Johanson v. Pioneer Fuel Co. 72 Minn. 405, 75 N. W. 719, would have applied. The conflict, in fact, would have been a personal one, and the result of a personal dispute and personal vituperation. If, on the other hand, the testimony of the plaintiff and his witness McCarthy is the testimony which is to be credited, the action can be maintained. The jury evidently resolved the doubt in favor of the plaintiff, and we cannot well interfere with their decision.

There can be no doubt that the weight of authority is to the effect that an employer will not be liable for the torts of his servants committed entirely outside of the scope of their authority and duty, and from malicious and personal purposes. There are also numerous authorities which explain the holding of the case of Craker v. Chicago & N. W. R. Co. 36 Wis. 657, 17 Am. Rep. 504, and the cases which follow it,-upon the theory that in the case of the railway company the passenger is under the exclusive control and power and at the mercy of the em*630ployees of the company. There are few authorities, however, which hold that the employer should not be held liable for an assault committed without authority upon a person while he is dealing with the employee in a matter which is in the scope of the authority of the agent. We do not, indeed, believe that the dicta in the case of Williams v. Pullman Palace Car Co. 40 La. Ann. 87, 8 Am. St. Rep. 512, 3 So. 631, is good law, which states that “a person has the right to enter a bank for the purpose of collecting a check and to present it to the paying teller for payment, but if, on such presentation, the teller should leap over the counter and knock him down, surely such an act would not subject the bank to liability. So one may lawfully enter a store and deal with any clerk with reference to the purchase of goods, but if, on some dispute, the clerk should commit assault and battery upon him, the merchant would not be responsible therefor; or, if one on lawful business should knock at the door of any private house and, on asking the servant who answered the call, for permission to see the master, the servant should assault and beat him, would the master be responsible ? Clearly in all such cases the lawfulness of the party’s conduct, and the fact that the injuries were received while he was properly dealing with the servant as servant, would not suffice to bind the master unless the latter had expressly or impliedly authorized the act, or had been guilty of some fault in knowingly employing so dangerous a servant.” We, indeed, believe the statement to be only a half truth, and the question is as to whether the assault is committed while discussing, or in relation to, a matter with which the person assaulted has a right to deal with and discuss with the agent. There can be no question that, if the occasion of the assault is something entirely extraneous to the subject of the visit or the interview, and extraneous to the subject-matter concerning which the agent has express or implied authority, that the master will not be liable, but to go any further is hardly warranted by the decisions or by sound public policy. If the assault arises out of a purely personal matter, the employer should not be liable, but if it arises out of a dispute in regard to the business of the principal, which the third party is justified in transacting with the agent, the matter is entirely different. Daniel v. Petersburg R. Co. 117 N. C. 592, 4 L.R.A. (N.S.) 485, 23 S. E. 327. Plaintiff in this case had a right to send his message and reasonably to inquire why the message in the morning had not been de*631livered. The mere fact that he made the inquiry and the complaint before is not controlling. In the evening he found that not only could he not take his train, but that he could not send his message on account of the wires being down. It was but reasonable and natural for him to nomplain of the supposed neglect in the morning, if for no other purpose than to induce the employees of the telegraph company to use every means to aid him in the present juncture. We are not sure, it is true, that his complaint was reasonable in form. There is a sharp conflict of the evidence on this proposition, but as to this matter we believe that the verdict of the jury is conclusive, and we must assume, in the absence of any instructions in the record, that the instructions properly covered the questions in controversy. To say that one cannot make a complaint at a telegraph office but at the risk of a personal assault, for which the .assailant alone will be liable, and that, when hearing such complaint, the agent is not acting for his employer, is to extend the rule of the cases altogether too far.

■ The judgment of the District Court is affirmed.

Burke, J., having presided on the trial in the court below, did not participate.