Birmingham Railway & Electric Co. v. Baird

130 Ala. 334

• Court: Supreme Court of Alabama
• Decided: November 15, 1900
• Status: Published

Opinion

McCLELLAN, C. J.

There appears to be some divergence of opinion as to a common carrier’s liability for an assault, and the like, committed -by its agent upon a passenger when the agent is acting beyond the scope of his employment in the usual acceptance of that phrase. Of course the law is well settled that for torts committed by such agents, or employes upon persons who are not passengers the employer is not liable unless the act was in a sense in the line of duty imposed by the employment, as where a conductor of a train being under duty to the railway company, and having authority to eject persons not entitled to carriage commits, out of his own malice and personal ill will toward such a person, an unnecessary assault upon him in ejecting him from the train, the wrongful act, though against the express rules and regulations of the carrier, is yet within the scope of the conductor’s employment and the company would be liable in damages for it; but the reverse would be true — the company would not be liable— if such conduit or should assault a person standing by the side of the train, for instance, and having no relations with the carrier, nor in any way encroaching upon the rights of the carrier, for in this latter case the wrongful act of the conductor would have no connection with his duties to the company and would be entirely beyond the scope of his employment. Such is the law as between trespassers and strangers generally, on the one hand, and the carrier on the other. But as between the carrier and its passengers an entirely different rule prevails. As to them the contract of carriage imposes upon the carrier the duty not only to carry safely and expeditiously between the termini of the route embraced in the. contract, but also the duty to conserve by every reasonable means their convenience, comfort and peace throughout the journey. And this same duty is, of course, upon the carrier’s agents: They are under the duty of protecting each passenger from avoidable discomfort, and from insult, from indignities and from personal violence. And it is not material whence the disturbance of the passenger’s peace and comfort and personal security or safety comes or is threatened. It may he from another passenger, or from a trespasser or other stranger, or from another servant of the carrier, ox’, a fortiori, from the particular servant upon whom the duty of protection peculiarly rests. In all such cases the carrier is liable in damages to the injured passenger. And it is of no consequence when the wrong is committed by the carrier’s own servant, even that servant particularly ehai’ged with the duty of conserving the passenger’s well-being en route, that the act bears no connection or relation with or-to the duties of such seiwant to the carrier and is not committed as an incident to the discharge of any duty; 'but is utterly vio-lative of all duty and apart and away from the scope of employment as that term is understood in the class of cases first above referred to: The carrier is liable in such cases because the act is violative of the duty it owes through the seiwant to the passenger and not upon the idea that the act is incident to a duty within the scope of the servant’s employment; and it is manifestly immaterial that the act may have been one of private retribution on the part of the seiwant, actuated by personal malice toward the passenger, and having no attribute of seiwice to the carrier in it. It is wholly inapt and erroneous to apply the doctrine of scope of employment as ordinarily understood to such an act:) Its only relation to the scope of the servant’s employment rests upon the disregard and violation of a duty imposed by the employment. This is beyond question, we think, the true doctrine on principle, and, while as indicated above, there are adjudications against it, the great weight of authority supports it. The doctrine is well stated in Goddard v. Grand Trunk Railway Co., 57 Mo. 202, s. c. 2 Am. Rep. 39, as follows: “The defendants contend tliat they are not liable, because, as they say, tlie brakeman’s assault upon the plaintiff ivas willful and •malicious, and was not directly nor impliedly authorized by them. They say the substance of the whole case is this, that The master is not responsible as a trespasser, unless, by direct or implied authority to the servant, he consents to the unlawful act-.’ The fallacy of this argument, when applied to the common carrier of passengers, consists in not discriminating between the obligation which he is under to his passenger, and the duty which he owes a stranger. It may be true that if the 'carrier's seawant willfully and maliciously assaults a stranger, the master will not be liable; but the law is otherwise when he assaults one of his master’s passengers. The. carrier’s obligation is to carry his passenger safely and properly, and to treat him respectfully, and if he intrusts the performance of this duty to his servants, the law holds him responsible for the manner in which they execute the trust. The law seems to be now well settled that the carrier is obliged to protect his passenger from violence and insult, from whatever source arising. He is not regarded as an insurer of his passenger’s safety against every possible source of danger; but. he is bound to use all such reasonable precautions as human judgment and foresight are 'capable of to make his passenger’s journey safe and comfortable. He must not only protect his passenger against the violence and insults of strangers and co-passengers, but a fortiori, against the violence and insults of his own servants. If this duty to the passenger is not oerformed, if this protection is not furnished, but, on the contrary, the passenger is assaulted and insulted, through the negligence or the willful misconduct of the carrier’s servant, the carrier is necessarily responsible. And it seems to us it would be cause of profound regret if the law were otherwise.” The same principles are declared in Dwindle v. N. Y. C. & H. R. R. R. Co., 120 N. Y. 117, s. c. 17 Am. St. Rep. 611, following Stewart v. Brooklyn Railroad Co., 90 N. Y. 588, s. c. 43 Am. Rep. 185, in this language: “The idea that the servant of a carrier of persons may, in the intervals between rendering personal services to the passenger 'for his accommodation, assault the person of the passenger, destroy his consciousness, and disable him from further pursuit of his journey, is not consistent with the duty that the carrier owes to the passenger, 'and is little less than monstrous. While this general duty rested upon the defendant to protect the person of the passenger during the entire performance of the contract, it signifies but little or nothing whether the servant had or had not completed the temporary or particular service he was performing, or had completed the performance of it, when the blow was struck. That blow was given by a servant of the defendant while the defendant was performing its contract to carry safely and to protect the person of the plaintiff, and was a violation of such a contract.” And in Stewart’s case, just referred to, it was held that where a passenger on one of defendant’s street cars was unjustifiably attacked and beaten by the driver, who was also acting as the conductor, because said passenger interferred to prevent him from beating a newsboy who had gotten on the car, it was held that the defendant was liable, the court declaring that the rule relieving a master from liability for a malicious injury inflicted by a servant when not acting within the scope of his employment did not apply between a common carrier of passengers and a passenger, Judge Tracy thus declaring the doctrine: “By the defendant’s contract with the plaintiff it had undertaken to carry him safely, and to treat him respectfully, and while a common carrier does not undertake to insure against any injury from every possible danger, he does undertake to protect the passenger against any injury from the negligence or willful misconduct of its servants while engaged in performing a duty which the carrier owes to the passenger. A common carrier is bound so far as practicable to protect his passengers, while being conveyed, from violence committed by strangers and co-passengers, and he undertakes absolutely to protect them against the misconduct of its own servants engaged in executing the contract,” or, as otherwise therein expressed, “from an assault committed upon a passenger by a servant intrusted with the execution of a contract of a common carrier.” And so in North Carolina it has been decided that it is the duty of a common carrier not only to carry its passengers safely, hut to protect them from ill treatment from its servants, other passengers, and intruders; and it is liable for an injury or ill treatment committed by its servants whether in the line of their employment or not.—White v. Norfolk & Western Railroad Co., 115 N. C. 631, s. c. 44 Am. St. Rep. 489. So in Indiana it has been declared that “one of the prime duties resting upon a. railroad company is to protect its passengers from assaults and injuries by its servants; nor does the question of its liability for a breach of this duty depend upon whether or not the servant in the performance of the act is within the scope of his employment.” Indianapolis Union Railroad Co. v. Cooper, 6 Ind. App. 202. In Railway Company v. Flexman, 9 Ill. App. 250, the doctrine is thus declared: “It is undoubtedly true, that where the employee goes outside of 'the line of his employment, and for purposes of hi® -own inflicts an injury upon the person of one who has no claim upon the employer arising -out of any special relation existing between them, being a stranger to the master, the principle contended for is properly applied and has ever been enforced as a rule of the common law, but it does not appear to us that it should be extended -so as to embrace a case where the employee of a common earlier engaged in operating the train commits a tort upon a passenger upon such train. In every contract fo-r carriage the carrier undertakes, not only that the utmost vigilance, -cars, -and -skill shall -be exercised to safely transport the passenger to his- destination, but that during the passenger’s transit he shall be treated humanely, and protected from all dangers from whatever source arising so far as- the efforts -of the carrier or his servants can be made available for the protection of such passenger.” The same doctrine -obtains in Texas, where it is thus stated: “And a carrier of passengers cannot invoke the rule that the master is not liable for an injury resulting from the willful and malicious acts of hi-s agents not done in the course of his employment; that rule -does not apply ivhen the injury is inflicted upon a passenger by the carrier’s servant.” Railroad Company v. Washington, 30 S. W. Rep. 719. And in Craker v. Railroad Company, 36 Wis. 657, it was held that a female passenger who had been kissed by the conductor could recover from the company, Ryan, C. J., saying: But we need not pursue the sub- ' ject. For, however that may 'be in general, there can be no doubt of it in those employments in which the agent performs a duty of the principal to third persons, as between such third persons and the principal. Because the principal is responsible for the duty, and if he delegate it to an agent, and the agent fail to perform it, it is immaterial whether the failure be accidental or wilful, in the negligence or in the malice of the agent; the contract of the principal is equally broken in the negligent disregard, or in the malicious violation, of the duty by the agent. It would be cheap and superficial morality to allow one owing a duty to another to commit the perfonnance of his duty to a third, without responsibility for the malicious conduct of the substitute in the perfonnance of the duty. If one owe bread to another and apnoint an agent to furnish it, and the agent of malice furnish a stone instead, the principal is responsible for the stone and its consequences. In such cases, malice is negligence. Courts are generally inclining to this view, and this court long since affirmed it.” Having reference to the rule as to the scope of employment, and to the cases which apparently apply it to passengers the 'Court of Errors and Appeals of New Jersey in a recent case adopts the following language of Clifford, J., in Pendleton v. Kinsley: “Adjudged cases may be ref earned to which support that proposition without qualification, but they do not give full scope and effect to the obligation which the carrier assumes towards his passenger, nor to the rights and duties which those relations create and imply. Passengers do not contract merely for ship room and transportation from one place to another, but they also trans-tract for good treatment, and against personal rudeness and every wanton interference with their persons, either by the carrier or his agent employed in the man-agement of tlie ship or other conveyance, and for the fulfillment of those obligations the carrier is responsible as principal; and the injured party, in case the obligation of good treatment is broken, whether by the principal or hi® employees, may proceed against the carrier as the party bound to make compensation for the breach of the obligation.”—Haver v. Railroad Company, 12 Am. & Eng. R. R. Cas. (N. S.) 261. And a great number of oases cited in Haver’s case and the note thereto are to the same effect. On this subject Messrs. Elliott say: “There is much apparent conflict among the authorities upon this subject, but we think some of it is due to the use of the term ‘scope of employment,’ or ‘line of duty,’ in a different sense in different cases, or to a failure to place the decision on the correct ground. It is not merely a question of negligence in such cases, nor is it a question strictly depending upon the scope of the servant’s particular employment. It is a question of the absolute duty of a railroad company t’o its passengers as long as that relation subsists, and a breach of that duty on its part, whether caused by the willful act of an employee or not. * * * Either the company or the passengers must take the risk of infirmities of temper', maliciousness, and misconduct of the employees ■whom the company has placed upon the train, and to whom it has committed the discharge of its duty to protect and look after* the safety of its passengers. A passenger has no control over them, and the company alone has the power to select and remove them. It is, therefore, but just to make the company, rather than the passengers, take this risk, and to hold it responsible.” — 4 Elliott on Eailroads, § 1638.

Of course, a conductor has the right of self-defense against the assault of a passenger; but the right is the same in this connection as in criminal law. He must be imperiled and he must be without fault. To be sure he need not retreat from his car. And he may assault a passenger when necessary to protect other passengers from assault, using no more than necessary force and this may become a duty — indeed it is a duty whenever it is a right. But he cannot assault a passenger in retaliation for an assault committed, upon Lim-self or upon another passenger, and a fortiori, he cannot assault a passenger for abusive words, or in revenge or punishment under any circumstances. And if he does assault a passenger otherwise than under a necessity to defend himself or a passenger from battery or in rightfully ejecting a passenger who by his conduct toward other 'passengers has forfeited his right of carriage, the carrier is liable. The fault of the passenger short of producing a necessity to strike in self-defense will neither justfy the conductor in striking, nor relieve the carrier from liability for his act. Possibly such fault could be considered in mitigation of damages. A's was said by Caldwell, J.: “The office of a conductor of a passenger train is an exceedingly important and responsible one. There are few positions which demand of their incumbents more judgment and self-possession. Not only the peace and comfort, but the lives as well, of passengers are in their keeping. They must not by any act-of their own disturb the one or endanger the other. They have- to deal with all classes of people. They daily come in contact with the unscrupulous and dishonest, who are seeking to defraud the railroad company -of what is justly its due, and are often grossly insulted by the ignorant and vulgar for a lawful and proper discharge of their duties. It is obvious that if a conductor were to attempt to redress every personal insult, or enter a boisterous quarrel with every vulgar and rude person who might invite it, there would be no peace or safety for his passengers. I-Ie must decline all such contests. He can take action only in those cases where the rights of the railroad company, or the peace, or the safety of passenger® under his charge, or his own safety demand it. And then he can only act in the mode and manner heretofore indicated, accomplishing what he has a right to do in the given -case with as little force, violence and confusion as is practicable and reasonable under the circumstances. * * * Words, [and acts short of producing a necessity for defensive effort stand upon the same plane] however irritating or opprobrious', will not justify an assault by une under no special obligation to keep the peace; much less will they justify an assault by a conductor, who is, by virtue of his position, not only bound to keep the peace himself, but whose duty it is to maintain peace -and order in the cars, and protect the passengers from assaults and violence.”—Gallena v. Hot Springs Railroad Co., 13 Fed. Rep. 122-3. To like effect is the case of Baltimore & Ohio Railroad Co. v. Barger, where the conductor struck a passenger for grossly abusing and insulting him. The company was held liable for punitive damages; and in the course of the opinion, referring to the charges, which are called prayers in the Maryland court, it ivas said: “The first is, in substance, that if the jury believed the plaintiff used foul and abusive language to the conductor, which caused or provoked the assault complained of, and that in making said assault the conductor was not acting for the defendant, and within the scope of his duties as conductor, but was carrying out a personal purpose and feeling, the defendant was not liable for such act of the conductor. * * * To such doctrine we cannot subscribe, under the circumstances of this case. There may be, and doubtless are, eases in which the conduct of a passenger toward the employe of a railroad company was such that, the company would not be liable for the act of the employe. A conductor, for example, would be justified in the defense of his own person, or the property of the company in his charge, in using such force as would be necessary for their protection against a. passenger or any one else, without (rendering- the company liable. * * * The plaintiff was at the time of the assault a passenger on the train which was in charge of this conductor, who was the agent of the company to see, as far as he reasonably could, that the plaintiff and other passengers were properly treated and carried to their respective points of destination. If the plaintiff persisted in misbehaving on the train either by the use of foul and abusive language toward the conductor or in any other way calculated to frighten or materially interfere with the comfort and safety of the other passengers, after being' admonished, by the 'conductor, the latter would have been justified in ejecting him from the train. The remedy in such a case would be to eject an unruly passenger — not to assault him and then let the employer escape all liability because he, the conductor, was carrying out 'a personal purpose and feeling.’ A conductor of a train doubtless has his patience and forbearance severely tested at times, but he must not settle his own personal difficulties with passengers, any more than he should permit others to do so when he could avoid it.” — 26 L. R. A. (Ind.) 222. The same principles are declared by the Supreme Court of Maine in the following opinion: “Passenger carriers are responsible for the misconduct of their servants. Railroad companies, as well as other carriers of passengers, are responsible for assaults and batteries committed by their employees upon passengers. This responsibility of course rests upon the assumption that the battery cannot be justified. If it can be, no responsibility attaches to any one. If it cannot be, both the servant and the carrier are liable. If the servant is first assaulted, he may defend himself. If he is resisted in the performance of any duty, he may use force sufficient to overcome the resistance. But the assault being over, or the resistance ended, he cannot pursue and punish the wrong-doer. The rule applicable to such cases is this, that when a prima, facie case of assault and battery is sought to ’be justified,' it is incumbent upon the one who justifies, to show that no more force was used than the exigencies of the case called for. The force used must be suitable in kind and reasonable in degree, otherwise the justification fails. It is the duty of the conductor, and other employes upon a train of cars, to treat the passengers with civility, and to abstain from all unnecessary violence toward them. It is also the duty of passengers to observe the rules and regulations of the company, and to conduct themselves generally so as not to invite uncivil treatment, nor to provoke violence. ’ But it is not true that disobedience to the rules of the company will operate as a license to the employees to maltreat a passenger. If a passenger persists in violating the reasonable rules of the company, after notice of the rules, and a request to Mm not to act contrary to them, tlie carrier will have a right to rescind the contract for his conveyance, and refuse to carry him further. But he will have no right to maltreat him while continuing to perform the contract for Ms conveyance. Nor is it true that an uncivil word by a passenger at the beginning of Ms journey, will justify the carrier’s servants in treating him with insolence to the end of it. Nor is it true that an assault, or resistance to the performance of a duty, will justify the servant in pursuing and punishing the passenger, after the assault or the resistance is over. If he does, he malees the carrier- as well as Mrnself, liable for the injury. If, therefore, it be true, as the defendants contend, that the plaintiff was the aggressor*, that he first assaulted the brakeman and resisted him in the performance of a legitimate duty, it was still a question of fact for the jury to determine, whether the brakeman did not use greater violence than the exigencies of the case demanded; whether he did not pursue the plaintiff, and inflict the blows upon his head with the iron poker, after the latter had ceased his assault, had ceased his resistance, and was returning to his seat with his back to the brakeman. Under the instructions of the court the jury must have so found, or they could not have x-eturned a verdict for the plaintiff; 'and in our judgment the evidence fully justified the finding."—Hanson v. E. & N. A. R’y Co., 62 Me. 84, 88.

The present action is prosecuted by Baird, a minor, by next friend, against the Birmingham Railway & Electric Company and sounds in damages for an assault and battery alleged to have been committed by one Sorsby, conductor of defendant’s train upon -which plaintiff was a passenger. That the assault and battery -was committed is proved beyond question and not denied. It is not only not shown that the conductor was justified in the act, but to the contrary it clearly appeal*® that he assaulted and beat the plaintiff without legal necessity or excuse. Foir while one or two witnesses testify that Baird attempted to strike Sorsby, it is shown that they were not in a position to see what occurred as accurately as several other witnesses including Sorsby himself, who depose that Baird made no such attempt, Sorsby testifying: “If Mr. Baird struck me at all I didn’t know it. I didn’t see him attempting to strike me when I struck him in the face, unless it was to throw up his arm. I don’t think he made any effort to strike me at all. * * * Mr. Baird pulled me to the door of the car and I followed him outside and struck him. The momentum of the bell cord did not jerk my arm out that way. I hit him in the face as hard as I could. There was a decidedly angry expression on Mr. Baird’s face, and he had grabbed the bell cord 'and broke the cord loose and pulled me along with it, which was an angry act; that is all that I know of. He didn’t say anything out of the way to me. I hit Mr. Baird in the face of my own free will.” And for all the purposes of this case it is to be taken that Baird made no hostile demonstration toward Sorsby at or about the time this vicious assault was made on Baird by Sorsby, for if any jury could be found to say that Baird struck at, Sorsby on the testimony of the one or two witnesses above referred to who were without opportunity to see what transpired and who doubtless mistook the fending motion of Baird’s arm for an effort to strike, against the overwhelming testimony of all the witnesses who were in a position to see accurately and against the above quoted testimony of Sorsby himself, it would yet remain true that Sorsiby’s act was not in defense against said blow, and was not necessary, for he saw no such attempt and says none was made, but that'he struck Baird as a vent to hi® own wrath and malice and in punishment for the conduct of the latter in attempting to pull the bell cord, breaking it while Sorsby had hold of it and jerking him some feet along the aisle of the car. But if it be conceded that Baird attempted to strike Sorsby, and that Sorsby was aware of it, and even that he assaulted and beat Baird in consequence of such attempt by the latter, the act of ' Sorsby would be nevertheless a wrongful act for which the 'defendant is responsible since it is altogether clear on the proof that Sorsby was at fault in bringing on the trouble in that he unnecessarily- followed Baird out on the platform of the car in an angry and threatening manner. So that applying the principles of law to the facts in any possible aspect of them the conclusion must be that Sorsby, defendant’s conductor,' committed an unjustifiable assault and battery on Baird, the defendant’s passenger. Whether Baird had or had not the right to pull the bell cord in order to stop the car after being carried past his station, Sorsby had no light to strike him for doing so. Whether, when the cord broke, both having hold of it, he pulled or jerked Sorsby several feet along the aisle, and conceding this, if it occurred, to have been a technical assault, Sorsby had no right to strike him in “retaliation” for or in “response to” such assault. Even if Baird attempted to strike Sorsby with or without Sorsby’s knowledge, Sorsby yet had no right to defend himself against such attack, being at fault in provoking it.

The case was tried below on views of the law and theories of the rights of the parties which were far too favorable to -the defendant. The doctrine of scope of employment was given in charge to the jury, when, as we have seen, that doctrine does not obtain in cases of tliis. character. Then too it was given ifi charge to the jury that plaintiff’s right of recovery depended upon ■the further inquiry whether he or Sorsby was at fault in bringing on the difficulty, “that the plaintiff’s right to recover in this case depends upon who was the aggressor, and that if the plaintiff was the aggressor he cannot recover,” when, as we have declared, no aggression on the part of plaintiff short of producing a neces,-sity for Sorsby to strike in defense of his person against physical harm would be a defense to the carrier. Very many charges were refused to the defendant. Those numbered respectively 1, 2, 3, 4, 5, 6, 15, 16, 17, 18, 19, 20, 21, 22, 23, 24, 25, 26 and 27, were each properly refused as being affirmatively, or having a tendency, opposed to -the principles above set forth.

Charges 7 and 8 are mere arguments.

Charges 9, 11, 12, 13 and 14 are affirmative instructions for the defendant, and as the complaint and each count of it was supported by the evidence they were, of course, properly refused.

The clauses'of the court’s general charge to which exceptions were reserved really meant that the jury had a right on the evidence to impose punitive damages; and unquestionably they had such right. If it was apprehended that the form of expression might mislead the jury, an explanatory charge should have been requested. Charge 9 refused to defendant had a tendency to mislead the jury to the conclusion that they were not authorized to impose punitive damages.

The several exceptions reserved by the defendant to rulings on the competency of testimony and to rulings relating to the argument of plaintiff’s counsel, have been considered by the court en lane, and found to be without merit. We shall not further extend this opinion by -a discussion' of them.

All the questions arising on -the motion for a new trial except one are covered by what we have said. The one not so covered has reference to the amount of the verdict, twenty-five hundred dollars, which is claimed to be excessive. We by no means think the recovery was for too great a sum.

Affirmed.