Railway Co. v. Hackett

| Ark. | Jan 20, 1894

Hughes, J.,

(after stating the facts). We have endeavored to fully examine and consider each of the instructions given by the court in this case, and it is our opinion that, taken together, they correctly state the law applicable to this case; that they contain no reversible error.

1. Authority of deputy sheriff to guard property. The counsel for the appellant state, in their brief, in substance, that they base the chief ground of their objection to the verdict upon the court’s refusal to declare the law as stated by them in instruction numbered five, which the court refused.^* This instruction is erroneous, in that it assumes that a deputy sheriff, as such, might engage to guard the property of the railroad company. An officer of the law cannot engage, as such officer, to guard the property of a private individual or corporation not in the custody of the law. The duties of a sheriff are prescribed by law. Such part of this instruction as correctly states the law is covered by the instructions given by the court. There was no error therefore in refusing this instruction.

2. Liability of master for” servant’s torts. The fourth instruction asked for by the appellant railway company, and refused by the court, is erroneous, as it assumes that, if Gallagher inflicted the injury wilfully and maliciously, the company is not liable for damages resulting from the injury. Such, in our opinion, is not the law, according to the weight of authority. The intention with which Gallagher acted cannot affect the liability of the railway company, though it might affect the amount of the damages. Cleghorn v. N. Y. Cent. & H. Ry. Co. 56 N. Y. 47. 'The question is, was Gallagher, at the time he fired the pistol shot, acting in the course of his employment as night watchman for the railway company ? If he was, the company is liable in damages for any wrongful act of his in the course of his employment, resulting in injury to another, though he exceeded his authority as such night watchman. If the act was done by him in the service of the company, in the course of his employment, and injury resulted therefrom, the company is liable in damages resulting from the injury, if the act was wrongful, or performed in such a negligent manner that its negligent performance caused the injury.^*

Of course, if the act causing the injury was outside of the course of the servant’s employment — disconnected with the service of the company — then the company would not be liable. The fact that Gallagher had been appointed a deputy sheriff, to enable him to make arrests, because he was watchman for the railroad company, could not exempt the company from liability for his acts as such watchman. If the act had been committed in the discharge of, or in the endeavor to discharge, his duties as deputy sheriff, though wrongful and in excess of his authority as deputy sheriff, the railroad company would not have been liable, though the deputy sheriff and his principal, the sheriff, might have been. But this case presents no such aspect. Ward v. Young, 42 Ark. 542" court="Ark." date_filed="1884-05-15" href="https://app.midpage.ai/document/ward-v-young-6541519?utm_source=webapp" opinion_id="6541519">42 Ark. 542 ; Brill v. Eddy, 115 Mo. 596" court="Mo." date_filed="1893-05-08" href="https://app.midpage.ai/document/brill-v-eddy-8010914?utm_source=webapp" opinion_id="8010914">115 Mo. 596, 22 S. W. 488 ; Cooley on Torts, p. 307 ; Krulevitz v. Eastern R. Co. 28 A. & E. R. Cases, 138 ; Priester v. Augley, 5 Rich. S. C. 44 ; Wood’s Master and Servant, secs. 279, 280, and p. 543, et seq; Chapman v. N. Y. etc. R. Co. 33 N.Y. 369" court="NY" date_filed="1865-09-15" href="https://app.midpage.ai/document/chapman-v-new-york-central-rail-road-5477475?utm_source=webapp" opinion_id="5477475">33 N. Y. 369; Wood’s Master and Servant, p.p. 303, 568 and 571; Weed v. Panama R. Co. 17 N.Y. 362" court="NY" date_filed="1858-06-05" href="https://app.midpage.ai/document/weed-v--the-panama-railroad-company-3602680?utm_source=webapp" opinion_id="3602680">17 N. Y. 362 ; Wood, Master and Servant, sec. 299 ; King v. Railroad Co. 69 Miss. 245" court="Miss." date_filed="1891-10-15" href="https://app.midpage.ai/document/king-v-illinois-central-railroad-7987117?utm_source=webapp" opinion_id="7987117">69 Miss. 245 ; 2 Wood, Ry. Raw, p. 1206 ; Green v. Omnibus Co. 7 C. B. (N. S.) 290 ; Garretzen v. Duenckel, 50 Mo. 104" court="Mo." date_filed="1872-03-15" href="https://app.midpage.ai/document/garretzen-v-duenckel-8003560?utm_source=webapp" opinion_id="8003560">50 Mo. 104 ; Nashville etc. R. Co. v. Starnes, 9 Heisk. 52.

While we do not intend to enter upon an extended discussion of the principles stated, we think that a careful examination of the authorities will sustain fully the conclusions we have reached as to the law of this case.

It is true that there has been a difference of opinion in the courts upon the question, whether a master is liable at all for the willful and malicious acts of his servant, resulting in injury, under any circumstances whatever, unless where they were in violadidn of a contract of carriage, or done by the master’s express command ; yet the better reason and weight of authority seem to be that where such acts are performed about the master’s business, in the course of the servant’s employment, the servant and master are both liable.

The principal case relied upon by counsel for appellant, Tolchester Beach Improvement Co. v. Steinmeier, 20 Atlantic (Md.), 189, is not like the case at bar, and does not contravene the principles announced. In that case it clearly appeared that the officer who did the injury was not acting' in the line of his employment, but was seeking only to enforce the criminal law, as he believed ; and as he was an officer, though he had accepted private employment from the company, the company was not liable for his official acts. There is a correct line of distinction in these case, which the circuit court seems to have followed in its instructions, leaving the questions of fact properly to the jury. It was not for the court to tell the jury that Gallagher, when he fired the shot, was or was not acting in his capacity of deputy sheriff, or that he was or was not acting in the course of his employment by the company as night watchman. These are questions of fact for the jury to determine, and we think the evidence warrants their verdict. The instructions asked on the part of Gallagher, and refused by the court, we have not considered, as Gallagher has not appealed.

3. Notice of ai reputation. The objection to the testimony in regard to the character of Pat Gallagher, the watchman, as to recklessness and unfitness for his position, was based solely upon the ground that it was not shown that the railway company ever had any knowledge of Gallagher’s reputation. It was shown that he had been in the employment of the railway company as watchman about nine years, and that his reputation was generally known, a matter of common knowledge in the county. This is sufficient to show that the company ought to have known his reputation, and to charge it with knowledge of it. 1 Whart. on Evidence, sec. 48.

4 Wheilob_ lenco waived!'

Where specific objections are made to testimony, all objections not specified are waived. Evanston v. Gunn, 99 U. S. 665. The testimony was clearly incompetent, but all objections to its competency were waived, other than the specific objection stated. Dunham v. Rackliff, 71 Me. 349 ; Porter v. Seiler, 23 Pa. St. 424.

s frreleTaat notdprejeuheld The testimony of G. W. Shinn as to the absence of Hackett from the trial, and the introduction of the letter of Hackett, were irregular,^* but Hackett’s had been taken, and was read to the jury, and there was no proof that Hackett was in the employment of the defendant company at the time the letter was written. We cannot see that the company could have been prejudiced by this testimony and letters, and we think that, though improper, the admission of them was not reversible error.

The judgment is affirmed.

* The fifth instruction asked by plaintiff, and refused by the court, is as follows:— “ 5. If the jui'y find from the evidence that Pat Gallagher was a deputy sheriff duly appointed; that, as such, he was engaged in guarding the property of defendant railway company at its depot in Little Rock ; that the injury complained of was inflicted upon plaintiff by said Gallagher, while in the discharge of his duties as such deputy sheriff, then you are instructed that the railway company cannot be held liable therefor, even though you should further find from the evidence that said Gallagher overstepped the bounds of his authority as such deputy sheriff, and that the railway company was paying, and had agreed to pay, the wages of said Gallagher as deputy sheriff.”

* On the question of the liability of a master for assaults by a servant, see note to Davis v. Houghtelin (Neb.), 14 L. R. A. 737. (Rep.)

* Plaintiff’s deposition, was read at the hearing of the ease. G. W. Shinn, one of plaintiff’s attorneys, was placed upon the stand, and asked the following question, viz:

Q. “ Why is Hackett not here to-day ?

A. “ He wrote me, and I wrote back to Mr. Hackett it was not necessary for him to come, that his deposition was here. This is what he wrote me:

“Pine Bi/cjee, Ask., December 9, 1891.

“ Yours of December 7th received, and I would like to know if it is necessary for me to be there at the trial. If it is not, let me know by Monday, or as near after as you can. I think it will be impossible for me to come without getting discharged, as I spoke about it to-day to see. If it is not really necessary that I should come, let me know and oblige.”

To the admission of the above testimony defendant objected.