Heenan v. Horre Coal Co.

174 A. 551, 113 N.J.L. 388, 1934 N.J. LEXIS 369

Opinion

The opinion of the court was delivered by

Paekee, J.

We conclude that the judgment of the Supreme Court, reversing that of the Common Pleas and remanding the cause for a new trial, should be affirmed, and in the main for the reasons stated in the per curiam opinion of the Supreme Court.

The case appears to be within the lines of our decision in Bernadsky v. Erie Railroad Co., 76 N. J. L. 580; 70 Atl. Rep. 189, and the earlier case (cited by the Supreme Court) of West Jersey and Seashore Railroad Co. v. Welsh, 62 N. J. L. 655. We agree that there was a jury question as to the actual or implied authority of defendant’s servant, employed as a watchman, to eject trespassers from the premises including the coal trestle, and that if such authority existed, and if in ejecting a trespasser by virtue thereof unnecessary force was used, the master would be liable in compensatory damages even if the conduct was legally malicious, so long as it was within the scope of employment. A claim for punitive damages as against the master would be a very different matter. See Wendelken v. New York, &c., Railroad Co., 88 Id. 270; 86 Atl. Rep. 377, and cases cited. The point is noted because the case must go back for a retrial.

The judgment under review is affirmed.

For affirmance — The Chancellor, Parker, Lloyd, Case, Bodine, Donges, Perskie, Van Buskirk, Kays, Heteield, Dear, Wells, JJ. 12.

For reversal — None.