200 Ky. 177 | Ky. Ct. App. | 1923
Opinion of the Court by
Reversing.
This is an appeal from a judgment in favor of appellee for personal injuries resulting from a gunshot wound which, it is claimed, was inflicted by the employes of appellant while acting within'the scope of their employment.
The material facts are these: Albert Rawlins, who was also a deputy constable, and Joe Spivey were night watchmen in the employ of appellant in its yards at Ravenna. It was their duty to protect the property of appellant, attend the arrival and departure of trains, look
On the question whether appellee was drunk or drew .his pistol at the station, or fired before or after he was .shot, some of the witnesses corroborated appellee, while others corroborated Bawlins and Spivey, and in view of the sharp conflict in the evidence, it cannot be said that the finding of the jury was flagrantly against the evidence.
One of the principal contentions of appellant is that at the time appellee was shot and wounded the watchmen were not acting within the scope of their employment. The basis of this contention is that appellee was shot on a public highway, and therefore at a place where the watchmen were without ’ authority to act for appellant. There might be some merit in this contention if the difficulty had started and ended on the highway, but such is not the case. When the trouble began all the parties .were at the depot. When the watchmen commenced firing they and appellee Tyere on appellant’s, property and remained thereon for some time during the pursuit and while the firing was going on. When they reached the public road the shot which struck appellee was fired.
It is also suggested that as Rawlins was a public officer and had the right to deputize Spivey to assist him in making arrests, the presumption is. that he and his deputy in attempting to malee the -arrest did so in the capacity -of peace officers, -acting under authority from the Commonwealth, and not as employes of appellant. Such a presumption cannot be indulged in this case,’ because it does not square with the. facts. Rawlins does-not claim that he was at the depot in the mere capacity of a peace officer. Both he and Spivey were in appellant’s. employ as night watchmen. They both admit that, under the terms of their employment, it was their duty to guard appellant’s property, attend the arrival and departure of trains, look after suspicious characters, and see that no disorder occurred, and that they were engaged in the performance of these duties at the time the difficulty occurred. In other words, the case is one ■■where the evidence tended strongly to show that the watchmen were acting -solely in the furtherance of appellant ’is. business, and therefore within the scope of their employment. L. & N. R. R. Co. and Curt Jones v. Owens, 164 Ky. 557, 175 S. W. 1039; McKain v. B. & O. R. Co. (W. Va.), 64 S. E. 18, 23 L. R. A. (N. S.) 289, and note.
Complaint is made of the exclusion of the evidence of Drs. Snowden and Wallace that they saw appellee some time after the difficulty, and he was then intoxicated. It was about 2:30 a. m. when Dr. Snowden saw appellee and some time between two and four o’clock when Dr. Wallace saw him. On the appeal in the criminal prosecution against Rawlins and -Spivey we held it was a vital issue whether the appellee was. intoxicated -at the time the watchmen attempted to arrest him, that the hour when Dr. Snowden saw appellee was sufficiently near in point of time to make his evidence admissible on that issue, and that its exclusion was- prejudicial error. At the same time we held that the exclusion of D>r. Wallace’s testimony was not prejudicial, as the hour to which his testimony related was perhaps as late as four o’clock in the morning, and was so far removed from
Another ground urged for reversal was the refusal of the court to give an offered instruction directing the jury to separate its findings, of compensatory and punitive damages. In L. & N. R. R. Co. v. Scott, 141 Ky. 538, 133 S. W. 800, we held that it was. advisable and proper for trial courts to give such an instruction. In the more recent case of C. & O. Ry. Co. v. John’s Admx., 155 Ky. 264, 159 S. W. 822, we held that a defendant had the right to have the damages separated, but that a failure to ask such separation was a waiver of the right. Therefore, it cannot be doubted that it is the duty of a trial court, when requested, to give an instruction directing the jury to separate its finding of compensatory and punitive damages, and while its refusal in some instances may not be ground for reversal, yet in view of the unsatisfactory character of the evidence as to the permanency of appellee’s injuries, and of the rule that punitive damages must bear some relation to the injury and the cause thereof (L. & N. R. R. Co. v. Ritchel, 148 Ky. 701, 147 S. W. 411), we are persuaded that the failure of the trial court to give the requested instruction was prejudicial error.
Another contention is that as appellee is an infant and his father was living at the time of the trial, the court erred in authorizing the jury to award appellee damages for the permanent impairment of his power to earn money, without limiting the damages to the time after he became of age. In C., N. O. & T. P. Ry. Co. v. Troxell, 143 Ky. 765, 137 S. W. 543, we said:
“Appellee was only sixteen years, of age at the time of his injury. Up to the time he arrived at the age of twenty-one years his services belonged to his father and ¡mother. The fact that they consented for him to work for the company did not constitute a manumission. Were he permitted, through his guardian, to recover in this action for loss of time his parents might also recover.*182 Unless the parents, who are entitled to his services, unite in the action and thus waive their right to recover for loss of time, the infant can recover only for his mental and physical pain and suffering, if any, and for the permanent impairment, if any, of his power to earn money after arriving at the age of twenty-one years. C. & O. Ry. Co. v. Davis, by, et al., 22 Ky. L. Rep. 1156; Slaughter, v. M. C. & St. L. L. Ry. Co., 28 Ky. L. Rep. 665.”
But it is insisted that the father had no cause of action at the time of the injury because he had theretofore emancipated appellee, and attention is called to certain statements of appellee which tend to show emancipation. It must not be overlooked that no issue of emancipation was made by the pleadings, and that the father was not' a party to the proceeding. If we should now hold .that appellee was emancipated it would not bind his father in any way, and in case of a suit by the father appellant would be under the necessity of relitigating the same question with him, with the possibility that he might show that, as a matter of fact, there had been no emancipation. We therefore conclude that the facts relied on were not sufficient to authorize the jury to award appellee any damages for the impairment of his power to earn money before he reached the age of twenty-one years.
On another trial the court, in addition to giving an instruction on the .measure of damages and an instruction authorizing .the finding of punitive damages', will instruct the jury as follows:
1. If you believe from the evidence that, on the occasion in question, Albert Rawlins and Joe Spivey, or either of them, while acting in the course of and within the scope of their employment as night watchmen of the defendant, shot and wounded Nesbert Bryant, you will find for the plaintiff, unless you believe as in instructions 2 or 3.
2. If you believe from the evidence that, on the occasion in question, Nesbert Bryant was drunk, or drew from his pocket a pistol which was theretofore concealed on his person, in the presence of Albert Rawlins and Joe Spivey, and that Rawlins deputized Spivey to assist him in arresting said Bryant, and that while they were attempting in good faith to arrest said Bryant and were pursuing him for that purpose, and before they fired at said Bryant, Bryant fired at them, and that they believed, and had
3. If you believe from the evidence that on the occasion in question Nesbert Bryant was drunk, or drew from his pocket a pistol which was theretofore concealed on his person, in the presence of Albert Rawlins and Joe Spivey, and that Rawlins deputized Spivey to assist him in arresting said Bryant, and that while they were attempting in good faith to arrest said Bryant and were pursuing him for that purpose, said Bryant fired at them or either of them when he did not believe and have reasonable grounds to believe that he was then and there in danger of death or great bodily harm at the hands of either of them, and that said Rawlins and Spivey, or either of them, then shot and wounded said Bryant and in doing so, if they or either of them did so shoot and wound him, they or either of them used no more force than reasonably appeared to them or either of them to b,e necessary to effect his arrest, you will find for the defendant.
4. _ If you believe that on the occasion in question said Rawlins and Spivey were not acting in the course of and within the scope of their employment as night watchmen of the defendant, you will find for the defendant.
Judgment reversed and cause remanded for new trial not inconsistent with this opinion.
Whole court sitting.
