80 Fla. 624 | Fla. | 1920
This was an action by Mamie Yarnes, as administratrix of the estate of Robert Fox, who was her son, against the Seaboard Air Line Railway for damages for his alleged wrongful death. The declaration in three counts alleges in substance that on the night of June 7th, 1917, Robert Fox was. a trespasser upon a freight train of the defendant company running between Jacksonville and Tampa; that C. C. Hicks was a special agent or special officer, servant, agent and employee of the defendant charged by it with the special duty and authority of protecting said train from trespassers and preventing the intrusion of trespassers upon the said train, and preventing trespassers from stealing rides or transportation or beating their way upon the said freight train. This is the language of the declaration alleging the relation of Hicks to the railroad company: It alleged that Hicks while acting within the scope of his authority and in the
The defendant pleaded not guilty. This was a denial of the defendant’s wrongful act. Rule 71, Law Actions.
The defendant’s liability for Fox’s death existed, if at all, under the doctrine of respondeat superior. Therefore the burden rested upon the plaintiff to show that Hicks was a special agent or special officer, servant, agent or employee of the defendant, charged by it with the special duty and authority of protecting that train from trespassers and preventing the intrusion of trespassers upon it, or preventing them, from stealing rides or transportation or beating their way on it, and that he killed Fox as alleged while Hicks was acting within the scope of his authority as such special agent.
The parties went to trial upon the issue joined, and on motion of the defendant the court instructed a verdict for the defendant. The verdict was rendered and judgment entered for the defendant. The plaintiff tool? a writ of error.
There was ample evidence to go to the jury upon the question of whether Hicks killed Fox at the time and un
But the plaintiff in error contends that the plea of not guilty admits that Hicks was the agent of the defendant as alleged in the declaration. Counsel argue that while the. plea “denies the doing of the act complained of,” it “admits the capacity in which the party is alleged to have acted.” If this statement means that the plea denies that the defendant committed the act complained of, but admits that it committed the act- complained of through its agent, the plea of not guilty in such actions is of less significance than a “tinkling cymbal.” The plea denies the wrongful act. Rule 71, Law Actions. The wrongful act was alleged to be the killing of Fox by the defendant acting through its agent. To .assert that the plea does not deny the agency in such case is to affirm that it has no application when a corporation is defendant, because a corporation can act in no other way than through its agents. The case cited by counsel for plaintiff in error, Atlantic Coast Line R. Co. v. Coachman, 59 Fla. 180, 52 South. Rep. 377, is not in point. B. P. Coachman sued the railroad company for damage occasioned by the defendant in the negligent transportation of horses and mules- belonging to the plaintiff. The consignee was S. .S. Coachman, alleged to be plaintiff’s agent. The plea of not guilty did not deny' that statement because it denied merely the defendant’s wrongful • act, not that the plaintiff had no right to. sue because not the real parly in in
There was no evidence to show that the man Hicks was the agent of the defendant to protect the train from trespassers or the intrusion of trespassers upon it, or from stealing rides on it, nor that in shooting Fox he was acting within the scope of his authority as an employee, nor with the apparent scope of his authority. The theory of respondeat superior was the only' one upon
In this case actionable wrong could not be imputed to defendant under the evidence; the court therefore as a matter of law correctly determined the issue in favor of the defendant. See Southern Exp. Co. v. Williamson, 66 Fla. 286, 63 South. Rep. 433.
The judgment is therefore affirmed.