94 Kan. 224 | Kan. | 1915
The opinion of the court was delivered by
On the 21st day of July, 1911, R. W. Wilson, an agent for the defendant company, was upon the land which the plaintiff for a number of years had rented of the company and occupied. An altercation ensued, and Wilson procured the issuance of a warrant from a justice of the peace for the arrest of the plaintiff. The next day the constable and Wilson with a number of other men went upon the place ostensibly for the purpose of arresting the plaintiff, certain of the others referred to being deputized by the constable to assist in making the arrest. They were all ordered off the place by the plaintiff, who claimed under a written
The action was one in which an attachment would lie, and hence the first complaint is without merit. (Cain v. Perfect, 89 Kan. 361, 131 Pac. 573.)
As to the question of the authority of the agent, the record shows that his duties were to rent the company’s land and collect rents in the neighborhood where the plaintiff lived; that the headquarters of the company were at Arcade, N. Y.; that it is a New York corporation and had sixteen or eighteen hundred acres of land in the locality rented by the plaintiff, and maintained an office at Anness in the vicinity occupied by the agent in question. Another Mr. Wilson, who was general manager, secretary and treasurer, testified that the local agent was authorized to rent land and collect the rents and look after the land to
Without going into other matters testified to, which the jury apparently believed, and without stopping to consider conflicting and contradictory evidence the record is abundantly sufficient to warrant the jury in finding an agency on the part of Robert W. Wilson to put O’Brian in possession as lessee and put the plaintiff out of possession, and' that in making the attempt so to do he was acting within'the scope of his authority. Having taken the wrong means and having proceeded in
The dividing line between authorized and unauthorized acts and those within and those without the scope of employment is often difficult to locate, but a. workable approximation is made possible by the former decisions of this court. In Hudson v. M. K. & T. Rly. Co., 16 Kan. 470, it appears that while Hudson was at the depot, after freight consigned to certain persons for whom he was acting, he was assaulted by the railway company’s agent. Upon the question of the liability of the company it was said:
“Was Trotter acting in the course of his employment in making the assault? For it does not appear that it was a part of his employment, that is, that he was employed directly to make the assault. Was it in the line of his duty, and growing out of the services he was employed to perform? He was as it appears in charge of the company’s depot. As such it was his duty to remove therefrom all persons improperly there, or improperly conducting themselves, though otherwise lawfully there. If in the supposed performance of this duty, and in ejecting plaintiff from the depot, he had improperly ejected him, or had used unnecessary force in ejecting him, the company
It is fair to say that Wilson was doing that which the company had employed him to do, and acting in the line and course of his employment in putting the company’s lessee in possession of the land or in putting its former lessee, Sipult, off, and “any mistake or violence on his part was the mistake or violence of his principal, the company.” Later in the Hudson opinion, it was pointed out that the assault was not in the course of the agent’s employment and was clearly disconnected therefrom and a mere volunteer assault.
“True, the employment may have given the opportunity and occasion, but it was not an act which in any fair sense the company could have been said to have employed him to do, or to have anticipated that, he would do, nor an act which was the act of the company.” (p. 474.)
Here the testimony expressly shows that Wilson was authorized to rent the land and collect the proceeds; that he had for several years looked after the large body of land in the vicinity owned by his principal, and that he was in charge of the company’s office at Anness. These things, considered in connection with the further fact that he seems to have been the only man this side of Arcade, N. Y., who had spoken or acted for years, or who could speak or act with reference to the land, save when the officer from the east happened to be on a visit to the office or property, are ample ground for the fair inference and belief that in seeking to seat one lessee and unseat (another he was acting for the company, precisely as he was when a month later he made complaint against Sipult in forcible detention for the purpose of getting him off the land by orderly and lawful means. In Wheeler & Wilson Mfg. Co. v. Boyce, 36 Kan. 350,
“The arrest and detention of Boyce was incidental to the replevin action, and was made as alleged to compel the delivery of the machine. ... He had full authority to represent the company, and whatever was done by him was done for the benefit of the company and for the accomplishment of its purpose. His act, ■ although wrongful, was in the line of his employment, was done in the execution of the authority conferred upon him, and must be regarded as the act of the company.” (p. 354.)
In Laird v. Farwell, 60 Kan. 512, 57 Pac. 98, a chattel mortgagee in possession of a stock of goods employed an agent to take charge and sell and account. He was held not liable for the acts of such agent in causing the arrest of a person for perjury in making an attachment affidavit in. an action wherein some of the goods were taken from the agent, such arrest not being within the scope of the employment. In O’Banion v. Railway Co., 65 Kan. 352, 69 Pac. 353, it was held to be for the jury to determine whether a brakeman who forcibly ejected a trespasser did so in the discharge of his duty or for the purpose of extorting money. In the opinion it was said that he owed the duty to his employer to remove trespassers, and if “in the discharge of such duty, he recklessly or in a willful,
“In this case the use of force did not pertain to the business intrusted to Cásen by the company. It was not an incident of the authority vested in him to compute what was due operators and to procure their signatures to vouchers, and we find no basis in the pleadings or the evidence which would justify a holding that an assault upon an operator who refused to sign a voucher came within the implied authority of Casen or' can in any sensé be regarded as within the scope of his employment.” (p. 24.)
In Whitman v. Railway Co., 85 Kan. 150, 116 Pac. 234, approving reference was made to Collette v. Re-bori, 107 Mo. App. 711, holding that the master is liable for the tortious acts of his servant when it is shown that the act complained of was done for the purpose of doing the work assigned by the master. In Lehnen v. Hines & Co., 88 Kan. 58, 127 Pac. 612, it was said in the opinion (p. 68) that when the duties of the night clerk of the hotel were to- attend to the calls and wants of guests and an assault was made by him while in response to a call, this and the subsequent arrest caused by him were wrongs committed while he was performing those duties and attending to his master’s business. In Kemp v. Railway Co., 91 Kan. 477, 138 Pac. 621, after an examination of the authorities it was said:
“To fix liability upon the master or employer the
As to the term “Course of Employment” it is said:
“The act of an agent is within the course of his employment When the agent in performing it is endeavoring to promote his principal’s business within the scope of the actual or apparent authority conferred upon him for that purpose.” (31 Cyc. 1585.)
The jury were correctly instructed as to the responsibility of the defendant for the acts of its agent, and a general verdict in favor of the plaintiff was returned which involves and implies a finding by the' jury that the agent’s acts were within the scope of his authority, and within the decisions referred to and from the evidence shown by the record such instructions and conclusion were fairly authorized and supported.
It is urged that the charge of conspiracy was not sustained, and in reply the distinction between civil and criminal conspiracy is brought forward. But the amended petition on which the case went to trial makes no charge or mention of conspiracy, hence this point needs no further attention.
The instructions submitted to the defendant and refused by the court were in reference to the scope of the agency and the duty of an arresting officer. In view of those given we find no error in those refused.
It is complained that certain instructions given touching the duty of an arresting officer and one to whom a warrant is exhibited or made known were erroneoüs. The jury were charged in conformity with the provisions of sections 129 to 132, inclusive, of the criminal code. We have carefully examined all the instructions given, and they appear to have been fair both to the constable and to the person sought to be arrested as well as to the others concerned. It must be remembered
The court denied a motion for judgment on the speciál findings, which were to the effect that Armstrong was a constable, directed by a warrant to arrest Sipult; that he deputized Wilson and O’Brian; that the. defendant company did not direct or instruct the issuance of the warrant; that O’Brian knew of the warrant when he “directed his outfit to the place on which Sipult was living”; that Sipult knew Armstrong was a constable; that the latter was afraid to attempt the arrest alone; that Sipult struck the first blow but did not have the general reputation of being a quarrelsome person and a fighter. There is nothing in these answers essentially inconsistent with the general verdict, and hence the motion was properly denied.
It is complained that the evidence failed to show authority and therefore was erroneously admitted, and that a demurrer thereto was overruled. But the testimony was properly submitted to the jury for their consideration and interpretation.
Finally, it is argued that the plaintiff’s injuries resulted from his reliance upon his own prowess and his utter disregard of law. There is much to criticise in the conduct of each of the belligerent forces, and as usual in such cases most, if not all, the violence and consequent injury were entirely needless. The facts shown by the record, however, so fairly support the jury in the result reached that in the absence of any material error such result must stand.
The judgment is affirmed.