Brokaw v. New Jersey Railroad & Transportation Co.

32 N.J.L. 328

• Court: Supreme Court of New Jersey
• Decided: November 15, 1867
• Status: Published

Opinion

The opinion of the court was delivered by

Depue, J.

The declaration in this case charges that the New Jersey Railroad and Transportation Company, by their servants and William Campbell, the other defendant, with force and arms, assaulted the plaintiff, and ejected and expelled hitn from a certain car in which he was riding, on the New Jersey railroad, and wounded, bruised, and ill-treated him.

To this declaration the defendants have filed a general demurrer, and upon the argument two questions were raised s First. Whether an action of trespass, for an assault and battery, can be maintained against a corporation, and

Second. Whether in such action an individual can be joined as a co-defendant with a corporation.

In the earlier cases it was held that an action of trespass could not be maintained against a corporation aggregate, for the technical reason that a capias and exigent, the proper process in actions of trespass, would not lie against a corporation j but this technical objection was not uniformly yielded to, as instances of actions of trespass against corporations are to be met with as early as the year books. A. & A. Corp., § 385; notes to Maund v. Monmouthshire Canal Co., 4 M. & G. 454. As corporations became more numerous and were multiplied, until aggregated capital, seeking investment for the purposes of business, is generally invested under acts of incorporation to protect individuals from personal liability, technical objections which stood in the way of subjecting corporations to actions founded on torts have been entirely swept away, and corporations have been held liable for all torts, the same as individuals. That they may be sued in trover, case, trespass quare clausum fregit, trespass vi et armis, and ejectment, is abundantly established by the cases cited by Green, C. J., in State v. The Morris and Essex Railroad Company, 3 Zab. 367.

A corporation is liable for injuries resulting from neglect to repair a bridge, where the obligation to repair lies on them. Ward v. The Newark and Pompton Turnpike Co., Spenc. 323; for obstructing the flow of water, whereby lands are overflowed — Tinsman v. The Belvidere Delaware Railroad Company, 1 Dutcher 255; Chestnut Hill Turnpike Co. v. Rutter, A S. & R. 6; for making an unlawful distress —Smith v. The Birmingham and Staffordshire Gas Light Co., 1 A. & E. 526; for deceit and fraudulent representations — Fogg v. Griffon, 2 Allen 1 ; National Exchange Co. v. Drew, 32 Eng. L. & Eq. 1; Barwick v. The English Stock Bank, L. R., 2 Exch. 259 ; for fraud in issuing spurious stock — N. Y. & N. H. R. R. Co. v. Schuyler, 38 Barb. 534; 8. C., 7 Tiffany 30 ; for wrongfully and maliciously obstructing a party in his business — Green v. The London Omnibus Co., 7 C. B. (N. S.) 290; for maintaining a vexatious suit— Goodspeed v. The East Haddam Bank, 22 Conn. 530; for a malicious libel — Whitfield v. The S. E. Railway Co., E., B. & E. 115; Philadelphia & W. & B. R. R. Co. v. Quigley, 21 Howard 202; and for an assault and battery and false imprisonment — Railway Co. v. Broom, 6 Exch. 314; Chilton v. The London, &c., R. Co., 16 M. & W. 212; Roe v. Railway Co., 7 Exch. 36; Seymour v. Greenwood, 6 H. & N. 359; Goff v. Great Northern R. Co., 3 E. & E. 672; Moore v. The Fitchburg R. Co., A Gray 465; Hewett v. Swift, 3 Allen 420; Evansville and Crawfordville R. Co. v. Baum, 26 Ind. 70.

And generally it may be stated that a corporation is liable civiliter the same as a natural person, for the tortious acts of its servants or agents, in the course of their employment, committed by the authority of the corporation, express or implied, whether such acts fall within the designation of forcible, negligent, malicious, or fraudulent torts, and without regard to the form of action by which the appropriate remedy is sought. Phila. & Reading Railroad Co. v. Derby, 14 How. 486 ; N. Y. & N. H. R. R. Co. v. Schuyler, 7 Tiffany 30, and per Davis, J., on p. 49 ; Bissel v. The Michigan Southern, Railroad Co., 22 N. Y. 258; Philadelphia, W. & B. R. Co. v. Quigley, 21 How. 202; per Pollock, C. B., Roe v. Railway Co., 7 Exch.- 40 ; Story on Agency, § 308.

And upon the trial, the question whether the corporation is liable for the acts of its servants or agents, will depend upon tiie same principles which govern the liability of a master for the acts of his servants. Where it is sought to hold the master liable, for the trespass of his servant, the rule is somewhat different from what it is when the gist of the action is negligence. The distinction is tersely stated by Parke, B., in Sharrod v. Railway Co., 4 Exch. 585, as follows: “ The maxim, ‘ Qui fac'd per alium faait per se/ renders the master liable for all the negligent acts of the servant in the course, of his employments, but that liability does not make the direct act of the servant the direct act of the master. Trespass will not lie against him; case will, in effect, for employing a careless servant, but not trespass, unless, as was said by the court in Morley v. Gainsford, 2 H. Bl. 412, the act was done by his command — that is, unless either the particular act which constituted the trespass is ordered to be done by the principal, or some act which comprised, or some act which leads by a physical necessity to the act complained of.”

If the trespass was committed by the agent of the company, wilfully, or of his own malice, under color of discharging the duties of his employment; or if he has departed beyond the line of his duty to commit a trespass, the company will not be liable. But if the act of the agent was authorized by the rules and regulations of the company, or was necessary to accomplish the purposes of his employment, the company is answerable, even for the unnecessary violence of the agent. Phila. & Reading R. Co. v. Derby; Seyman v. Greenwood ; Railway Co. v. Brown ; Roe v. Railway Company; Hewitt v. Smith, cited above; Smith on Master and Servant 151 ; Vanderbilt v. The Richmond Turnpike Co., 2 Coms. 479.

In considering the question whether the agent has the-authority of the corporation, so as to make it answerable for his act, the purposes for which the company was-incorporated must not be overlooked. An authority given even by the board of directors, in express terms, will not,, in all cases, be the authority of the corporation. The directors are only agents themselves, and their powers are necessarily limited within the scope of the purposes for which the corporation was created, beyond which they are not authorized to bind the corporation. To fix the liability of a corporation for the tortious act of one of its employes,, done in obedience to the commands of its officers, the act must be connected with the transaction of the business for which the company was incorporated. If the directors-should order an agent to take a person out of his house and beat him, the corporation could not be held for the assault and battery; or if the directors of a banking company should purchase a steamboat, and engage in transporting passengers, the corporation would not be liable for the misfeasance or non-feasance of agents employed in that business. But if the directors of a corporation having power to hold lands, order an agent to enter on lands and take possession of them for the legitimate uses of the company, his entry, if unlawful, will be the trespass of the corporation. So if the directors, acting in their official capacity,, adopt rules and regulations for the transaction of the corporate business of the company, and provide for the enforcement of such rules and regulations, and authorize its agente or servants to carry them into effect, the corporation will be liable for the acts of such agents or servants, in the course of such employment. In Railway Co. v. Brown, & Exch. 325, Patterson, J., says: “ An action of trespass for assault, and battery will lie against a corporation, whenever the corporation can authorize the act done, and it is done by their authority,” and Erie, C. J., in Green v. The London Omnibus Co., 7 C. B. (N. S.) 301, says: “ The ground of demurrer is that the declaration charges a wilful and intentional wrong, and that the defendants, being a corporation, cannot be guilty of such a wrong, and, therefore, the action will not lie. But the whole *of the acts that are charged against the defendants are acts connected with driving vehicles, and the defendants are a company incorporated for the purpose of driving omnibasses, and, therefore, the acts alleged to have been done by them are all acts which are within the scope and object of their formation.”

In National Exchange Co. v. Drew, the fact that the company is benefited by the transaction in which the fraud was committed, is assigned as a reason for holding it liable for the fraud of their directors.

In Phila. & W. & B. R. Co. v. Quigley, the libel for which the corporation was held answerable was contained in a report made by the directors to the company of the result of an investigation into the accounts of an employe, which the directors had authority to investigate, and were authorized by a meeting of the stockholders to make public. See, also, 2 Hilliard on Torts 473.

The demurrer admits that the servants of the corporate defendant had competent authority to commit the assault and battery, and the case comes directly within the cases above cited. Whether, in point of fact, the servants of the company had such authority, and the corporation is liable for their acts, is a question of fact, to be determined at the trial.

The second ground of demurrer is,1 that William Campbell is joined as a defendant with the New Jersey Railroad and Transportation Company. The joinder is proper j for, in trespass, all the actors are principals, and may be' joined in one suit; and an individual and a corporation may be joined as defendants in the same suit. 1 Vin. Ab., Abatement Z, p. 32 ; Bro. Corporations, pl. 24.

Both the defendants are charged as principals, and it does not appear that Campbell was the servant of the company, and if it did, the joinder would still be proper. A joint action of tort, in the nature of trespass, may be maintained against a corporation and its servants for a personal injury inflicted by the latter in discharging the duties imposed on him by the corporation. Hewett v. Swift et al., 3 Allen 420 ; Moore v. Fitchburgh R. Co. et al., 4 Gray 465.

In considering this case, we have not overlooked the case of Orr v. The Bank of U. S., 1 Ohio 28, which was much relied on by the defendants’ counsel. That case proceeds on principles long since obsolete, and is against' all the later authorities.

The demurrer is overruled.

Cited in Dock v. Elizabethtown Steam Manufacturing Co., 5 Vroom 316.