Gilliam v. South, & North Alabama Railroad , 70 Ala. 268 ( 1881 )

STONE, J.

The present case presents but a single inquiry: whether the railroad company is liable in damages for the wrong alleged to have been committed by Hunt, the conductor. The case of McManus v. Crickett, 1 East, 106, is the leading-authority on this question. That case drew the distinction between willfulness and negligence, holding that when the servant, in the performance of his master’s service, by his negligent act, does an injury to another, the master is liable in damages; when, however, the act which produced the injury was intentionally done, although done while in the performance of • his master’s service, then" the master was not liable, unless he commanded the act, or was present and did not dissent from it.

The rule, as stated above, has never been fully satisfactory. Since railroads have been introduced, and since they have monopolized, in large degree, the land travel and transportation of the country, many of the revising courts of the country have modified the rule. The modification, however, is confined to acts which are within the range of the agent’s employment, or delegated authority. The precise modification is, that if the agent, while acting within the range of the authority of his employment, do an act injurious to another, either through negligence, wantonness, or intention, then, for such abuse of the authority conferred upon him, or implied in his employment, the master or employer is responsible in damages to the person thus injured. But, if the agent go beyond the range of his employment or duties, and of his own will do an unlawful act injurious to another, the agent is liable, but the master or employer is not.—1 Redf. on Railways, 5th ed. § 130, subd. 4, note 6 ; Pierce on Railways, 277-8; 5 Wait’s Ac. & Def. 311-2; Flower v. Penn. R. R. Co., 8 Amer. Rep. 251; s. c., 69 Penn. St. 210; N. O., J. & Gr. Nor. R. R. Co. v. Harrison, 12 Amer. Rep. 356; s. c., 48 Miss. 112; Shearm. & Redf. on Negligence, § 65; Poulton v. Lon. & S. W. Railway Co., 2 Q. B. 534; Storey v. Ashton, 4 Q. B. 476 ; Phila. & Read. R. R. Co., 14 How. 468; Rounds v. Del., Lack. & W. R. R. Co., 64 N. Y. 129 ; Cohen v. Dry Dock, East Broadway & B. R. R. Co., 69 N. Y. 170; Coleman v. N. Y. & N. H. R. R. Co., 106 Mass. 160 ; Lit. Miami R. R. Co. v. Witman, 19 O. St. 110; Tol., Wab. & W. R. R. Co. v. Harmon, 47 Ill. 298; Jef. R. R. Co v. Rogers, 38 Ind. 116; Hays v. Houston G. N. R. R. Co., 46 Texas, 272.

The older cases follow the doctrine declared in McMamus v. Crickett, supra, and relieve the master or employer from liability for tortious acts of tlie agent, if intentionally done, although within the range of his duties, unless the tortious act was commanded or adopted by the master.—Foster v. Essex Bank, 17 Mass. 479; Southwick v. Estes, 7 Cush. Mass. 385 ; Harris v. Nicholas, 5 Mumf. 483; Wright v. Wilcox, 19 Wend. 343; Vanderbilt v. Rich. Turnpike Co., 2 Comst. 479; Puryear v. Thompson, 5 Humph. 397; Ill. Cen. R. R. Co. v. Downey, 18 Ill. 259 ; Wesson v. Seaboard & Roanoke R. R. Co., 4 Jones’ Law, 379 ; Church v. Mansfield, 20. Conn. 284; Thames Steamboat Co. v. Housatonic R. R. Co., 24 Conn. 40; DeCamp v. Miss. & Mo. R. R. Co., 12 Iowa, 348.

In S., R. & D. R. R. Co. v. Webb, 49 Ala. 240, this court held, that a railroad company can not be sued in trespass for the willful tort of its employee, unless the act was previously ordered, or subsequently ratified by the corporation. We think the principle there announced should be so far modified, as to limit its application to tortious acts of the agent, done outside of the range of his employment. To this extent, we adopt the modified rule, as applicable to railroads and their employees.

It is common knowledge, that the wrongful acts charged in this case to have been done by the conductor, are not within the range of his employment. There is no averment that the act was commanded, or authorized by the corporation, or that it ratified it afterwards. The Circuit Court did not err in sustaining the demurrer to each count of the complaint.

Affirmed.