163 Iowa 39 | Iowa | 1913
Plaintiff is a physician, living at Waterloo, Iowa. Anticipating a shipment of drugs over defendant’s road which he had ordered, he went to defendant’s freight house in an automobile, accompanied by his seventeen-year-old son. One Pattison was defendant’s freight house foreman, who had full authority over the same, with the right to employ and discharge men in the conduct thereof. He had charge of all incoming freight and of the freight house and platforms used for loading and unloading goods. When plaintiff and his son reached the freight house, plaintiff sent the son into the freight depot to get the goods. When he got into the depot, he picked out Pattison as the man in authority, and asked him for the goods. Pattison told the boy to go to the office, and get the expense bill. Acting upon this suggestion, he went to the office, which was, as we understand, on the second floor of the building, but found it locked. He then returned to where his father was, thinking that he might be able to get the goods. Upon the boy’s return, the two, father and son, went into the freight house, and plaintiff asked Pattison if he could get the drugs. Pattison then asked the boy, “Did you get a bill!” to which the boy re
. . . Papa turned to Mr. Pattison, and says, ‘ The boy says you didn’t tell him, and I don’t believe you did;’ and Mr. Pattison says, ‘You call me a liar?’ and Papa says, ‘No; but you must be misrepresenting thingsmround here; ’ and Mr.' Pattison says, ‘You call me a liar,’ and Papa says, ‘If any one is lying it must be you; ’ and then Mr. Pattison reached out and slapped him with the left hand, and Papa made an offer to grab him, and got hold of his arm, and I think maybe ripped his sleeve, and Papa turned around and started to run, and Pattison, right behind him, kept hitting him, and when he got to the end of the platform he gave him a shove, and, about as he was to shove him off, I went down to the other end, and he turned around after he got through shoving him off, and grabbed me, and hit me, and shoved me off, too. . . . Q. State how your father acted while Pattison was crowding' him over toward the end of the platform. A. He was running toward the end of the platform getting out of the way.
A slightly different version of the matter was given by the boy on cross-examination, as follows:
Went up there to get a box of drugs. Saw men working in freight house. Asked him to get box of drugs. Directed me to Mr. Pattison, who was in box ear. Asked him if I could get a box of drugs for Dr. Nesbit. He says, ‘ Have you got a bill?’ I says,‘No.’ He says, ‘Go to the office and get a bill.’ Went to office and found it locked. Went back, and told Father could not get bill or drugs because office locked, and we went together to Pattison. Father says, ‘Can I get a box of drugs?’ Mr. Pattison says, ‘Did you get a bill?’ I said, ‘No; the office was closed.’ He says, ‘Yes; the office is closed at 3 o’clock.’ Father says, ‘Why didn’t you tell the boy the office was closed?’ Mr. Pattison says, ‘I did tell the boy.’ Papa turned to me and said, ‘Did he tell you the office was
Plaintiff’s own version of the matter may be understood from this quotation from the record:
Q. What did you say to Mr. Pattison? A. I asked him if I could get the drugs, and Mr. Pattison turned to Harold, at my side, and said ‘Did you receive the expense bill?’ Harold said, ‘No; I was there, and the office was closed, and I could
Q. Now, when you found him, you demanded to know why you couldn’t get that box of drugs, didn’t you! A. Yes, sir. Q. And he said to you that you would have to have an expense bill, didn’t he? A. No, sir; he didn’t. Q. Didn’t he ask the boy at that time if he had the expense bill? A. Yes. Q. And the boy told him he didn’t have it? A. Yes, sir. Q. He said he couldn’t deliver the goods unless he had the expense bill? A. He said, ‘ Oh, yes; the office is closed Saturday afternoon at 3 o’clock, and you can’t get any expense bill this time of day.’ Q. Then when he said that you said, ‘Why didn’t you tell the boy the office was closed, and not keep me waiting here ? ’ A. Yes, sir. Q. You were a witness, Doctor, upon the criminal prosecution of Mr. Pattison that was tried in this court before a jury ? A. I was. Q. You testified at that time in behalf of the state, didn’t you? A. I believe I did. Q. Well, you know you did, don’t you? A. Yes, sir. Q. And you told the transaction at that time as you understood it ? A. I did. Q. Now, I will ask you whether you did not use this language at that time: ‘I turned to Harold and asked him if he told him the office was closed and he couldn’t get the drugs,’ he said, ‘No; he never told me any such thing.’ And I said, ‘I don’t think you told the boy, or he wouldn’t stood around here and kept me waiting.’ A. Yes, sir. Q. You think you said that? A. I may have said that; yes, sir. Q. And you knew you couldn’t get it without an expense bill? A. No, sir; I didn’t. Q. Well, the boy told you, and you have so testified, that you couldn’t get them without an expense bill. A. Yes, sir. Q. And you didn’t have any, did you ? A. No, sir.
Another witness named Murphy testified:
. . . Dr. Nesbit was coming toward the south end. He had his head down, and Pattison was cuffing him on both sides. Whether he had his fists shut or not, I cannot say. At' end of platform he pushed him off, and then Dr. Nesbit’s boy came up and faced Pattison with his hands up, whether to strike him or not, I don’t know, and he took hold of him and shoved him off. When Pattison was pushing Nesbit, the boy was back of the platform about midway between. Seemed to stand there and take no part in matter. Pattison went two car lengths while he was striking Dr. Nesbit. During this time, doctor had his head down, and was going toward the end of
And still another testified:
. . . I was going to second platform with buggy. Mr. Murphy was with me. I was ahead, going up the platform. I had hold of the buggy handles. Mr. Murphy was pushing buggy. He spoke to me, and says, ‘ There is a fight, ’ and just as I looked around the buggy, why, Pattison pushed Nesbit off the platform, and turned around and said, ‘ Get off. ’ He put the doctor off of the end next to Naumans, the south end. Q. Did you hear the doctor say anything to Pattison during that time? A. No, sir. Q. Hear him swear at him? A. No, sir. Q. Did you hear the boy swear at anybody ? A. No, sir.
This is the substance of plaintiff’s evidence on the main issue in the case.
Pattison himself testified in part, as follows: ■
Q. What did he [the boy] say about the expense bill, if anything ? A. Why, he did not say anything, and I repeated, I says, ‘Have you a bill?’ and he says, ‘No.’ Told him if he would go upstairs there might be some one left up there that would give it to him, and at that, I think, he went out. In five or eight minutes, something like that, he came up, accompanied by his father. I was in the ear taking out last gate. I walked out. He said, ‘How about that box of drugs?’ I said, ‘I will accommodate you if you have got an expense bill.’ He said, ‘Why didn’t you tell the boy that?’ I says, ‘I did;’ and the boy says, ‘You are a liar; you didn’t.’ I says, ‘What, you call me a liar?’ and the father says, ‘Yes; you are a liar; I would rather believe the boy than you.’ And I slapped him. This occurred not five or eight feet from the door I came out of. Doctor was right in front of me, and boy was at my right side, back a little toward car on second track. . . . The platform where doctor and I were was under my personal control and supervision. When doctor and I had exchanged one or two pleasantries, I slapped him with my left hand on the right cheek. I hit him with my fist in the eye, right side of the nose, when he rushed at me. Think the slap was strong enough to make his head go back. Did it because I was angry
Another witness testified for defendant:
. . . Pattison struck him; then doctor kind of wheeled around like he was going away, staggered like. Pattison says, ‘You will have to get off of here now.’ He shoved him on a ways, and started to come back, and he comes toward him that way again, and he turned around again; then the boy come and hit Pattison a blow right on jaw, so the old gentleman he walks over to platform and walks off and he comes back and says to the boy, ‘Now, you will have to get off;’ and he [Patti-son] goes over to end and lifts him, and puts him down on ground. . . .
And still another:
. . . Pattison said,‘What, you call me a liar?’ Nesbit said, ‘Yes; you are a liar; I would rather believe the boy than you.’ Pattison slapped him on the side of face with left hand. Nesbit made lunge for him, and kind of grabbed for him on his left arm. Pattison struck him with his left hand in his face. Doctor kind of moved back, but turned around like; then Pattison took hold of him and told him to go on, and get off of there. Grabbed him by shoulders and gave him a little punch, and said, ‘Now, get off of here.’ Pushed him seven or eight feet. Just gave him a little start was all. Were twenty-five or thirty feet from end of platform when Pattison took hold of Nesbit the second time, and told him to get off the second time. Nesbit kept right on going until he got to end of platform and jumped off. . . .
This is a sufficient statement of the record to present the
As announced in Everingham v. Railway, 148 Iowa, 662, the rule is as follows:
. . . It is fundamental that a master is not liable for all assaults made by his servant. It is only for such as are done in the prosecution of the master’s business that the master is liable. If the servant steps aside from his master’s business, and, in order to effect some purpose of his own, commits an assault, the master, is not liable. This is clearly pointed out in the following cases already decided by this court: Alsever v. Railroad, 115 Iowa, 338; Dougherty v. Railroad, 137 Iowa, 257; Kincade v. Railroad, 107 Iowa, 682; Dolan v. Hubinger, 109 Iowa, 408; Porter v. Railroad, 41 Iowa, 358; Golden v. Newbrand, 52 Iowa, 59; Marion v. Railroad, 59 Iowa, 428. In the latter case it is said: ‘ The rule is that an employer is not liable for a willful injury done by an employee, though done while in the. course of his employment, unless the employee’s purpose was to serve his employer by the willful act. Where the employee is not acting within the course of his employment, the employer is not liable even for the employee’s negligence, and the mere purpose of the employee to serve his employer has no tendency to bring the act within the course of his employment.’ One of the best statements of the rule is found in Cooley on Torts (2d Ed.) 628, which reads as follows: ‘So, if the conductor of a train of cars leaves his train to beat a personal enemy, or from mere wantonness t.o inflict an 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
Again, in Seybold v. Eisle, 154 Iowa, 128, we said :
The general rule, as stated in Lewis v. Schultz, 98 Iowa, 341, is as follows: ‘If the servant was acting in the course of his employment in clearing up and leveling off the meadow, and while so doing committed the wrong complained of, the master is liable, although the servant may have disobeyed the master’s instructions with reference to setting out fire. It is sufficient to make the master responsible if the wrongful act of the servant was committed in the business of the master, and within the scope of his employment, and this although the servant in doing it departed from thé instructions of his master’ (Mechem, Agency, sections 734) — or, as stated by Judge Cool 'ey, in his work on Torts (2d Ed.) 63: ‘It is, in general, sufficient to make the master responsible that he gave to the servant an authority, or made it his duty, to act in respect to the business in which he was engaged when the wrong was committed and that the act complained of was done in the course of his employment.’ Again, in Healy v. Johnson, 127 Iowa, 226, we said: ‘ The doctrine of respondeat superior is not limited to the acts of the servant done with the express or implied authority of the master, but extends to all acts of the servant done in discharge of the business intrusted to him, even though done in violation of his instructions. See authorities collected in 20 Am. & Eng. Enc. of Law (2d Ed.) 167.’ In Morier v. St. Paul R. R., 31 Minn. 351 (17 N. W. 952, 47 Am. Rep. 793), the court of that state announced the rule as follows: ‘Beyond the scope of his employment, the servant is as much a stranger
The reason for these exceptions or apparent exceptions to the rule of nonliability, where the act of the servant is not within the scope of his employment, actual or apparent, is that the master owed the person injured some special duty. Birmingham v. Baird, 130 Ala. 334 (30 South. 466, 54 L. R. A, 752, 89 Am. St. Rep. 43), and this exception has been applied in many eases where a patron of a carrier was assaulted by an employee thereof, Columbus Co. v. Christian, 97 Ga. 56 (25 S. E. 411); Georgia Co. v. Richmond, 98 Ga. 495 (25 S. E. 565); Savannah v. Quo, 103 Ga. 125 (29 S. E. 607, 40 L. R. A. 483, 68 Am. St. Rep. 85).
Apparently without reference to this exception, it has been held that an assault committed by an employee of a railway company upon a consignee of freight who was in the freight house for the purpose of getting his freight was within the scope of the employee’s employment. Gassheimer v. Railroad, 57 South. 718 (40 L. R. A. (N. S.) 998); Daniel v. Railroad, 117 N. C. 592 (23 S. E. 327). See, also, to same effect, Case v. Hulsebush, 122 Ala. 212 (26 South. 155).
In Gassheimer case, it was said:
The court below makes it clear that the motion was overruled on the theory that the jury might have inferred that Mabson assaulted plaintiff because plaintiff had made complaint to his superior officers, and that an assault committed for such reason was not within the scope of Mabson’s employment. In this the court erred. It is well settled in the decisions of this court that corporations are liable for the wrongful acts of their agents or employees, done- in the course of their employment, or in the line of their assigned duties. The difficulty in particular cases arises in the proper application of this principle of law to the facts. The case of Case v. Dulsebush, 122 Ala. 212 (26 South. 155), is strikingly like the case at bar in all essential respects. In that case the tax collector of Mobile county was held personally liable for an assault and battery committed by his deputy upon a taxpayer who had gone to the collector’s office to pay taxes. The assault grew
And, in Daniel’s ease, the court said:
A patron of the defendant, while in his warehouse on business connected with the road, is entitled, from defendant’s agent, to protection against assaults or insults from any one. The language of the deceased to the agent was rude and wrong, for which the agent had a right to expel him from the premises by using such force as was necessary, and no more. The offensive language of the deceased, however, did not justify or excuse the violence of the agent, and, if his violent act was done within the scope of his employment or line of duty, then his employer, the defendant, is liable in damages for the injury complained of, by reason of the original contract, and the act of the agent while so engaged. Was the agent’s act in the course of his employment, and while about the master’s business? No decisive test can be given; but in all cases the question whether the act was committed by the servant in the service of his employer, or for his own purpose, is one for the jury, in view of all the circumstances. Wood, Mast. & S. 594; Hussey v. Norfolk Southern R. Co., 98 N. C. 34 (3 S. E. 923, 2 Am. St. Rep. 312). In this case that question was submitted to the jury in the charge of the court, and by their verdict the fact that the agent was acting within the line of his employer’s business is settled in the affirmative.
In New Ellerslie Club v. Stewart, 123 Ky. 8 (93 S. W. 598, 9 L. R. A. (N. S.) 475), the Supreme Court of Kentucky said:
It is further urged that, in committing the assault upon appellee, Proctor was not acting within the line of his employment, and therefore the fishing club is not liable for his conduct, and in support of this view our attention is called to the cases of Louisville & N. R. Co. v. Routt, 76 S. W. 513 (25 Ky. Law Rep. 887); Sullivan v. Louisville & N. R. Co., 115 Ky.
In Richberger v. American Express Co., 73 Miss. 161 (18 South 922, 31 L. R. A. 390, 55 Am. St. Rep. 440), the court said:
But it is urged that, however, applicable this doctrine may be to carriers of passengers, it is not applicable to employees of an express company. 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 cannot be
From this principle, universally recognized, springs the corollary that all such persons, natural and artificial, shall afford to such members of the public as have occasion to transact with them business of the nature they are holding themselves out as being accustomed to do safe and decent access to the places opened up for the transaction of the business in question. This safety does not mean mere physical safety, nor this decency mere absence of obscenity; but by the employment of the expression ‘safe and decent access’ it is intended to connote also the notion of freedom from abuse, humiliation, insult, and other unbecoming and disrespectful treatment. A member of the public is not to be deterred from transacting or offering to transact the business which the law compels a telegraph company to accept impartially from every person by reason of the fact that he cannot enter the public office without being subjected to insult or personal affront. A violation of this duty has occurred whenever a person entering the telegraph office for the purpose of sending a message has been met with disrespectful or insulting treatment at the hands of the company’s agents. It is immaterial that the person thus injured had no personal interest in the message, or that he was the mere agent of another, for there is no such requirement as that persons desiring to transact business with public utility corporations shall do so in person. The fact that the right of respectful treatment, while attempting to do business with a public service company, follows as the natural sequence from the right to be served impartially and at all reasonable times seems to render the citation of authority as to the existence of-this right of respectful treatment unnecessary. We do, however, call attention to the Georgia cases of Gasway v. Atlanta & West Point R. Co., 58 Ga. 216, 221 and Georgia R. Co. v. Richmond, 98 Ga. 495, 502 (25 S. E. 565). It will be noted that, while these were actions against carriers, in neither case did the liability depend upon the fact that the plaintiff was a passenger. In Gasway’s case he was attempting to check baggage as agent for his wife. In Bichmond’s case he had called at the passenger station to see about certain trunks, and the court, in deciding the ease, took pains to call attention to the fact that the relation of carrier and passenger did not exist at that time. We might multiply citation of precedents; but these are sufficient.
Looking now to the facts which the testimony tended to establish, we find that defendant is a corporation, engaged in a public duty as a common carrier; that it put Pattison in charge of its freight office, where its patrons were invited to go. In virtue of his employment, Pattison had undoubted authority to remove trespassers and undesirables both from the freight house and the loading and unloading platforms. Plaintiff went to the freight house on an entirely legitimate errand, and upon an implied invitation to call there 'for goods which he was expecting to receive by freight. Down to the time when the assault was committed he was conferring with Pattison about an entirely legitimate matter. Although he used abusive and insulting language to Pattison, this did not justify Patti-son in making an assault upon him. The matter of securing the goods was so closely related to the assault that it would not do to say, as a matter of law, that the assault was so entirely disconnected with the delivery of the goods that the defendant should not be held responsible therefor. The whole matter grew out of plaintiff’s attempt to get his goods, and we should not say, as a matter of law, that the assault was so far removed from Pattison’s duties in the premises that the defendant should not be held responsible therefor. In view of the public nature of defendant’s employment, of the fact that plaintiff was entitled to go upon the premises to receive his goods, and that defendant owed him the duty of protection while there, the least that can be said is that the question of whether or not the act of Pattison’s was within the scope of his employment in assaulting the plaintiff and removing him
The trial court was in error in directing the verdict, and ■its judgment must be and it is Reversed.