Kinnonen v. Great Northern Railway Co.

158 N.W. 1058, 34 N.D. 556, 1916 N.D. LEXIS 43

• Court: North Dakota Supreme Court
• Decided: June 1, 1916
• Status: Published

Opinions

Bruce, T.

(after stating the facts as above). The first point to be considered is whether the trial court erred in refusing to direct a verdict for the defendant, and in considering this proposition, we must give full weight to the testimony of the plaintiff. This testimony supports in the main the allegations of the complaint; the only question, indeed, which is in dispute being whether the plaintiff was arrested and the assault was made by tire brakeman and participated in by the peace officer Nissen, for the protection of the property of the defendant railway company, and whether such persons were acting within the scope of their authority though maliciously, or whether it was committed outside of the scope of their authority. The law in the case seems to be settled. Section 10591, Compiled Laws of 1913, provides that “each of such railway or railroad companies or receivers thereof is, and shall be held responsible for the acts of all conductors or other persons employed by it while acting as peace officers under the provisions of this article to the same extent as for the acts of its general agents or employees.”

It must be clear from the above section that if neither the police officer Nissen nor the brakeman Blanchard were acting for the company or for the protection of the property of the company, the defendant was not liable. The authorities are almost unanimous in holding that when an officer of the kind mentioned is merely performing his duty as a police officer, and is not at the same time furthering the interests of his company, that such company will not be liable for his acts. See notes to 23 L.R.A.(N.S.) 289, and 30 L.R.A.(N.S.) 481; Healey v. Lothrop, 171 Mass. 263, 50 N. E. 540, 4 Am. Neg. Rep. 283; Dickson v. Waldron, 135 Ind. 507, 24 L.R.A. 483, 41 Am. St. Rep. 440, 34 N. E. 506, 35 N. E. 1; Jardine v. Cornell, 50 N. J. L. 485, 14 Atl. 590; Hershey v. O’Neill, 36 Fed. 168.

What is true of the special peace officer is of course true of a brakeman whose duty it is to protect the property of his employer. His employer, in short, is liable for his acts, though malicious, when done in protecting its property, but he is not liable for such acts when they are not done for that purpose. Galehouse v. Minneapolis, St. P. & S. Ste. M. R. Co. 22 N. D. 615, 47 L.R.A.(N.S.) 965, 135 N. W. 189; Cooley, Torts, 2d ed. p. 628; notes to Franklin F. Ins. Co. v. Bradford, 88 Am. St. Rep. 770, 772; 1 Jaggard, Torts, 278.

As far as the police officer is concerned, all that the statute provides is that the railway company shall be liable for his acts to the same extent as if he had been any other agent or employee. That is to say, only for his acts when done within the scope of his authority and while acting for it and in its protection. As far as the evidence is concerned there seems to be no dispute that the assault was committed when the parties concerned were in no way acting for the benefit or protection of the defendant. The plaintiff, it is true, had stolen a ride upon defendant’s train. He had, however, been ejected therefrom, when it was a mile or so east of Petersburg. While the train was standing at Peters-burg he caught up with it, and got into an altercation with one of the brakemen. Defendant’s witness testified that he threatened the brakeman with a knife, but that is immaterial. According to plaintiff himself, the altercation took place, and the brakeman threw stones at him, and the police officer chased him, shooting a revolver over his head. After circling the town, he returned towards the depot, and was then arrested by the peace officer, according to the evidence, on the charge of assault with a deadly weapon, and, according to the answer, on the charge of having stolen a ride. It was then and while being searched by the officer, or immediately after, that he was assaulted by the brakeman, and that the officer either assisted in holding him, or stood idly by and allowed the assault to take place. Though the brakeman may at one time have been engaged in protecting the property of his employer, there can be no pretense that he was so engaged at the time of the assault, and the law is well established that when there is an appreciable interval between the acts of protection and a malicious assault in connection with that protection, that the assault is deemed to be a personal act of the servant. See Spencer v. Kelley, 32 Fed. 838; Roberts v. Southern R. Co. 143 N. C. 176, 8 L.R.A.(N.S.) 798, 55 S. E. 509, 10 Ann. Gas. 375.

There is absolutely no evidence that the plaintiff at the time of the assault or at any time prior thereto was attempting to, or had intended to, again board the train, and though the answer states “that at the time the assault referred to in the complaint, the plaintiff intended to again board said train at the village of Petersburg and unlawfully ride thereon to the city of Dakota,” such allegation was merely made for the purpose of laying the foundation for proof of contributory negligence, and there is no evidence that either the peace officer or the brakeman had any knowledge of snch intention, nor does the answer allege or admit that they did, nor as a matter of fact does the plaintiff himself contend that any such intention was entertained by him.

Though, therefore, the assault was a brutal one and absolutely unjustified, and may be the ground for liability on the part of the special agent and the brakeman, it can impose no liability on the defendant company. See, in addition to the cases already cited, Candiff v. Louisville, N. O. & T. R. Co. 42 La. Ann. 477, 7 So. 601; Golden v. Newbrand, 52 Iowa, 59, 35 Am. Rep. 257, 2 N. W. 537.

We are not unmindful of the authorities cited by counsel for respondent to the effect that “if the servant while doing the master’s business exceeds his instructions whereby an. injury to another results, the master is liable because the law casts upon him the duty of employing fit agents for the transaction of his business.” There is, however, no proof that the brakeman and the peace officer were in any manner transacting their master’s business at the time of the assault which is before us.

The judgment of the District Court is reversed and a new trial is ordered.