64 S.E. 205 | N.C. | 1909
Lead Opinion
after stating tbe case: Passing the question raised by defendant’s exception to bis Honor’s refusal to grant tbe motion for judgment of nonsuit, and assuming, -for tbe purpose of disposing" of this appeal, that tbe question whether the flagman, when be shot plaintiff, w-as acting in tbe scope of bis employment or tbe line of bis duty, was properly submitted to tbe jury, tbe defendant is entitled either to a judgment upon tbe verdict or to a new trial. While tbe members of tbe Court are not agreed in regard to tbe correctness of bis Honor’s ruling upon tbe motion for judgment of nonsuit, a majority of them are of tbe opinion that defendant was entitled to have its motion for judgment upon tbe verdict allowed. Whatever differences of opinion may have existed in tbe past, tbe decided weight of judicial opinion concurs that for torts committed by tbe servant while on duty and acting within tbe scope of bis employment 'or line of bis duty, proximately injurious to another, tbe master is liable. Tbe fact that the tort was committed recklessly, wantonly or willfully, if within tbe scope of tbe employment, does not exonerate tbe master. Tbe view which has, after most careful consideration, been adojffed by both English and American courts is thus stated'by Sir Frederick Pollock, probably tbe most accurate writer on'tbe subject now living: “A master may be liable for tbe willful and deliberate wrongs committed by tbe servant, provided they be done on tbe master’s account and for bis purposes.” For an interesting and exhaustive discussion of this subject see 2 Beven on Neg., Book IY, p. 554. This limi
In Palmer v. Railroad; 131 N. C., 250, the opinion concludes with the words, “The employee must have been acting at the time within the scope of his employment on the defendant’s car.” The jury — not the court — found that in this case he was not so acting. We are unable to perceive how we can, in the face of this finding, without a single exception by the plaintiff, do otherwise. No motion was made to set the verdict aside. This disposition of the appeal renders it unnecessary to consider the charge in regard to the character and measure of damages which could be awarded. The judgment must be reversed, with direction to enter judgment that defendant go without day, etc.
Reversed.
Concurrence Opinion
concurring: I concur in the opinion written for the Court by Mr. Justice Qormor, which to my mind is conclusive that the defendant company is not liable for the unwarranted and unauthorized act of its brakeman in shooting at the plaintiff. There is not a scintilla of evidence in the record that the brakeman shot at the plaintiff in an endeavor either to keep plaintiff off the train or to put him off after he was on. Upon all the evidence the act of the brakeman was neither authorized by the defendant nor done in the discharge of the brakeman’s
In the iStewart case, in my opinion, the company is held liable upon a well-defined ground, supported by most respectable authority, to the effect that a steam locomotive is such a dangerous instrumentality that the company is liable for the manner in which the engineer selected by the company uses it when running it in the company’s business. That' principle is not involved in the case.
I do not understand, nor do I think anyone else seriously believes, that railway or other corporations claim for their employees the privileges of the ancient nobility of France to shoot down innocent persons at will or to commit other lawless acts. I have so much respect for the great mass of railway employees that I do not think they merit any such' severe censure. My experience has convinced me that they are very generally a most faithful, law-abiding as well as highly respected class of our industrial population. But now and then, as in all other callings, however great or however humble, some reckless individual will be found. When his lawless act is done in the discharge of his duty to his master, or when it is authorized or ratified by him, then the master is justly held to be liable for the damage inflicted, however innocent the master may be; but when such act was not done in furtherance of the master’s business, and was neither authorized nor ratified by him, but was the wanton, reckless, personal act of the servant, which the master could neither foresee nor prevent, and does not ratify, then it is neither law nor justice to hold the master responsible, and this applies to corporate as well as individual employers of labor.
Such has been the law of this and our mother country from time immemorial.
Dissenting Opinion
dissenting: The plaintiff was attempting to climb up on the defendant’s box car to steal a ride. A flagman on top, discovering him, told him to “Come on up.” Whether the menacing tone, or the fact that he was discovered, or, as is probable, the flourish of a pistol, intimidated the plaintiff, he
This Court has held again and again that a railroad is liable for the conduct of its agents, whether negligent or willful and wanton, when the act is done in the course of their employment. In Jackson v. Tel. Co., 139 N. C., 347, it was held that the corporation must answer for. the servant’s wrongful act, “if committed in the scope and course of the servant’s employment,” and that he is in such scope and course of employment if he “is at the time about his master’s business.” If this were not so, the corporation would never be liable, for it does not hire its employees to do negligent acts-or commit wanton and willful wrongs.
The company was held liable when its station agent got into a difficulty with an exqpassenger, over the delivery of a trunk, and killed him, though he was certainly not employed to kill passengers. Daniel v. Railroad, 111 N. C., 592. Nor was the conductor employed to kiss a female passenger, but he was on duty, and the company was held liable, in Strother v. Railroad,
In Stewart v. Lumber Co., 146 N. C., 47, the company was held liable for the wanton conduct of employees as to one neither a passenger nor a trespasser, by blowing the whistle and hollering to frighten plaintiff’s horse, which was injured in the resultant runaway. The question in that case, which divided the majority of the Court, whether the plaintiff could recover punitive damages or actual damages, does not now arise, but four of the Court agreed that the action could be maintained, as had been done on a similar»state of facts in Brendle v. Railroad, 125 N. C., 474; Hussey v. Railroad, 98 N. C., 34. The company was held liable for torts of its agents, even when ultra vires. Gruber v. Railroad, 92 N. C., 1; White v. Railroad, 115 N. C., 636; Waters v. Lumber Co., ib., 652. In the unanimoiis opinion of the Court, in Foot v. Railroad, 142 N. C., 52, the railroad was held liable for the willful and wanton misconduct of its employee, citing Brendle v. Railroad, supra.
There are many other cases to the same effect in this and the other -States. It is difficult to see how the company is liable if the employee throws stones or coal at a trespasser, or frightens him, by cursing, into jumping off (Hayes v. Railroad, 141 N. C., 195), but is not liable if lead is used; nor how it is responsible to one off the right of way for injuries resulting from frightening his horse by shouts and blowing the whistle, and not liable for shooting one on the right of way and not eight feet from the car.
The liability of a farmer, merchant or other citizen, in the performance of his inherent right to do business, for the conduct of his agents is necessarily not as broad as that of these great
Jaggard on Torts, sec. 86, thus correctly sums up the result of the authorities: “The master is liable for the conduct of his servant, within the course of his employment, not only where responsibility would attach under the test or scope of his employment, but also where the conduct is not intended to be for the master’s benefit, but for the servant’s malicious, capricious or other private purpose, and whenever a duty rests on the master to avoid doing harm to the third persons and the servant violates that duty in the course of his employment.”
Under, the l'eign of privilege in France one of the privileged class was seen to shoot a workman from the top of a building for the pleasure of seeing him tumble to the ground. He was not held to account, but the incident aided to topple over the French monarchy to its death. Corporations cannot claim such privileges for its officers or employees. If employees on a moving train can fire at cattle or at people along the track at will, without any responsibility on the part of the company, because the act is willful and wanton, then the company is using its vast privileges, not upon terms of liability for good behavior to the public, but upon the narr.ow ground that, like a private business, it is only responsible for the conduct that it authorizes. It was wrong for the plaintiff to attempt to steal a ride, but the penalty for such offense is not execution by shooting.
Upon the finding on the first and third issues the court properly rendered judgment. The finding on the second issue,'very
Lead Opinion
The plaintiff testified that he attempted to climb upon defendant's box car, attached to a moving freight train, catching hold of the iron bars for the purpose of stealing a ride; that a flagman on top of the car told plaintiff to come up to him, when he (plaintiff) started to run; that he had gone about eight feet from the car, when the flagman shot him — shot him twice — inflicting the injury from which he suffered, etc. Plaintiff was, at the time of the shooting, sixteen years of age. This was the entire evidence in regard to the transaction. There was evidence regarding the extent of the injury. Defendant moved the court for judgment of nonsuit; motion denied. Exception. His Honor submitted the following issues to the jury:
1. "Was the plaintiff injured by the reckless and wanton acts of the defendant's agent, as alleged in the complaint?
2. "If the plaintiff was injured by the reckless and wanton acts of the defendant's agent, as alleged in the complaint, was such agent, at the time, acting in the line of his duty, scope of his (474) employment and furtherance of the business of defendant company?
3. "What damage, if any, is plaintiff entitled to recover?"
The jury answered the first issue "Yes," the second "No," and the third "Two hundred dollars."
Defendant moved for judgment upon the verdict; motion denied. Defendant excepted. Judgment for plaintiff. Defendant excepted, assigned errors and appealed.
Passing the question raised by defendant's exception to his Honor's refusal to grant the motion for judgment of nonsuit, and assuming, for the purpose of disposing of this appeal, that the question whether the flagman, when he shot plaintiff, was acting in the scope of his employment or the line of his duty, was properly submitted to the jury, the defendant is entitled either to a judgment upon the verdict or to a new trial. While the members of the Court are not agreed in regard to the correctness of his Honor's ruling upon the motion for judgment of nonsuit, a majority of them are of the opinion that defendant was entitled to have its motion for judgment upon the verdict allowed. Whatever differences of opinion may have existed in the past, the decided weight of judicial opinion concurs that for torts committed by the servant while on duty and acting within the scope of his employment or line of his duty, proximately injurious to another, the master is liable. The fact that the tort was committed *390
recklessly, wantonly or willfully, if within the scope of the employment, does not exonerate the master. The view which has, after most careful consideration, been adopted by both English and American courts is thus stated by Sir Frederick Pollock, probably the most accurate writer on the subject now living: "A master may be liable for the willful and deliberate wrongs committed by the servant, provided they be done on the master's account and for his purposes." For an interesting and exhaustive discussion of this subject see 2 Bevan on Neg., Book IV, p. 554. This limitation is both scientific and practical. (475) Certainly no one will seriously contend that a master is an insurer of his servant's conduct in respect to torts committed by him while in his employment, without regard to the pivotal question whether such conduct had any relation to or was in the scope of the employment. To maintain that he is, it must follow that almost unlimited control should be given the master over the servant, to the end that he may protect himself against such unlimited liability. The law must be both reasonable and practical — that is, it must commend itself to the sense of justice of the average man and be capable of practical application to the manifold relations of our modern, industrial, social and domestic life. It is manifest that judicial thought upon the subject, since the decision of McManus v. Crickett, 1 East., 106, has been affected by the introduction of the industrial corporation into the field of litigation, and the measure and standard of liability of the master for the torts of the servant has been enlarged and extended to meet the changed conditions of employment of servants by these impersonal agencies. Liability has been fixed upon corporations for torts of its servants which, if applied to natural persons engaged in mercantile, mechanical and agricultural employments, and especially to those employing domestic servants, would shock the reason, produce startling consequences and be restricted by legislation. Mr. Bevan, speaking of the development of he doctrine of liability of the employer for the torts of his employee, says: "From this limited beginning its scope has become so almost universal in modern law that Jessell, M. R., thus comments on it: `It is clear that, on principle, a man is liable for a man's tortious act if he expressly directs him to do it, or if he employs that other person as his agent, and the act complained of is within the scope of the agent's authority.' I agree that the court ought to be very careful how it extends the doctrine, respondeat superior. It has been carried in our law very far, indeed — I think, quite far enough." Smith v. Keal, 9 Q. B. D., 351. However this may be, and whether the law is at present upon a permanent and satisfactory basis, it is manifest that for the torts of the servant the master's liability is limited to those committed within the scope of the employment — in furtherance of his business; *391
for, as said in McManus v. Crickett, supra, "No master is (476) chargeable with the acts of his servant but when he acts in the execution of the authority given him." The same thought is clearly expressed by Mr. Justice Walker, in Daniels v. R. R.,
In Palmer v. R. R.,
Reversed.
