Deck v. Baltimore & Ohio Railroad , 100 Md. 168 ( 1905 )

This is an action to recover damages for personal injury.

Louis Deck sues the Baltimore and Ohio Railroad Company and Charles A. Steiner. The ground of the action is that Steiner who is alleged to have been in the employ of that company, in the regular course of his business, shot the plaintiff, seriously and permanently injuring him. The defendants pleaded the general issue.

During the taking of the testimony of the plaintiff which was offered to establish the responsibility of the Railroad Company for the assault and shooting of the plaintiff, the plaintiff reserved four exceptions, which relate to rulings on the evidence. At the close of the plaintiff's testimony on this question a prayer at the instance of the defendant was offered taking the case from the jury — from which ruling the plaintiff also excepted. Judgment was entered in favor of the Railroad Company and the plaintiff has appealed.

In the further progress of the case against the remaining defendant, Charles A. Steiner, he reserved two exceptions, one to the ruling on evidence and the other to the granting of the plaintiff's two prayers and the rejection of his first prayer. Judgment was entered against the defendant, Steiner, and he also appealed. There are therefore, two appeals in this record and we will consider them in the order in which they were entered. But before doing so we will briefly state the facts of, and the circumstances under which, the shooting was done.

It appears from his own testimony and that of other witnesses, that on the first of July, 1899, the plaintiff and several companions, without authority, boarded a freight train of the defendant company and rode thereon to Oella a short distance beyond Ellicott City, where they spent the day. On the same evening they boarded another freight train of the same company, without authority, for the purpose of returning to Baltimore and when it was approaching the city and was near Mt. Clare station the plaintiff and his companions were ordered to leave it. The plaintiff testifies that he was already off the train and about fifteen feet from it when he heard several shots fired, by one of which he was hit and seriously injured. First, then we will consider the questions presented by the appeal of the plaintiff.

The plaintiff's first exception was taken to the refusal of the Court to allow the witness to say whether from the point where he was ordered off the train, if it was daylight, he could see the city of Baltimore, if looking towards the city. We are unable to see what relevancy the question or the answer thereto could possibly have had to the issues involved. The shooting took place about 11 o'clock at night — and whether the city of Baltimore could or could not have been seen in daylight from the point indicated does not appear to be important or relevant. Nor do we find anything in the plaintiff's second exception which was taken to the ruling out of the testimony of the witness Thomas tending to show that the defendant Steiner was a Battimore Ohio Railroad detective, for testimony as to the fact of Stener's employment by that company as a detective was subsequently admitted without objection.

We find no error in the ruling complained of in the plaintiff's third and fourth exceptions. After testifying that he was a Lieutenant of Police and was employed by the Baltimore and Ohio Railroad Company as a policeman at the time of the shooting and that he was paid by that company, the defendant Steiner was asked on cross-examination whether he held a commission as policeman from the State. This question was allowed to be answered against the objection of the plaintiff. This constitutes the third exception. The witness answered that he had such a commission and he was asked to produce it, which he did, and read it to the jury. Whereupon the plaintiff filed a motion to strike out all the testimony of this witness in relation to witness being commissioned as police officer by the State of Maryland. This motion was overruled, and this action of the Court is the ground of the plaintiff's fourth exception.

We think it was very material that the jury should have been informed exactly how and in what capacity Steiner was acting. He had testified in chief that he was a police officer of the defendant, that he was employed and paid by it, but this was not all. He was also a State's officer and as such commissioned as a special policeman of the Baltimore and Ohio Railroad Company. It was but right, we think, that the defendant should be allowed to inform the jury that it had availed itself of the provisions of law which were passed for the purpose of giving corporations the benefit of capable men commissioned by the State to protect their property, and that it had not selected one of its own employees for that purpose.

This brings us to the consideration of the only important question involved in this appeal and that is presented by the plaintiff's fifth exception which is based on the ruling of the Court granting the defendant's prayer taking the case, or this branch of it, from the jury.

Was there any evidence in the case legally sufficient to prove that the defendant Steiner did the shooting complained of?

In the first place the plaintiff himself testifies that shortly after he was shot and lying upon the ground, Thomas, a brakeman came over with a lantern and Steiner came also and asked what was the matter; that plaintiff replied that he was shot and Thomas picked him up and showed Steiner where the ball entered, and Steiner said "yes, if I hadn't shot the son of a bitch I would have kicked his ribs in." It is true that the witness Thomas contradicted this statement of the plaintiff, but it was for the jury to determine which one they would believe. Again the witness Carlin testifies that Steiner told him he shot the plaintiff. We conclude therefore, that the testimony on this point was legally sufficient to show by whom the shooting was done.

Second. Is there any legally sufficient evidence in the case that Steiner was in the employ of the defendant company at the time of the shooting? This question must also be answered in the affirmative, for Steiner himself testifies that he was employed and paid by the defendant company as policeman at that time, and the commission he held from the State showed that he was appointed as "special policeman" of the Railroad Company. Other witnesses testified to the same effect, either that he was a detective of the company as testified to by the plaintiff and the witness, Morrison, or that he was such special officer or policeman at the time in question.

But the important question remains to be considered whether at the time of the shooting Steiner was attending to the business of the company, and if so, whether he was acting within the scope of his duty.

Assuming, for if what we have already said is correct, we have a right to assume, that Steiner was present at the time of the shooting and that he was in the employ of the company as its special officer, detective or special policeman, and assuming also that the plaintiff and his companions had been on one of its trains as trespassers and acting in a disorderly manner, it would not require much testimony to establish the fact that he was there not on any business of his own, but for the purpose of protecting the company's employees and its property. This was a laudable and proper purpose, but we not think it incumbent on the plaintiff, under the circumstances of this case, to offer affirmative and direct testimony to establish that fact. He was employed by the company and he was there, and it will not be assumed he was there for any other purpose but to perform his duty — that is, as one of the witnesses said, "To look after all depredations on the company's property, such as robbing cars, breaking into trains, attempting to derail trains and allviolations of the law along the line of the road." If then he was present as an officer of the company and as two witnesses testified he admitted he did the shooting, was he under all the circumstances of this case acting within the scope of his duty? Whether he was or was not so acting is ordinarily a question for the jury. It was contended on the part of the defendant company that conceding the testimony we have already recited to be true, namely, that Steiner admitted the shooting, still the defendant cannot be connected therewith unless there is some evidence of an express antecedent authority to Steiner to do the act or of a subsequent ratification thereof by the defendant. But the authorities cited to sustain this proposition are cases of false arrest or malicious prosecution and the principles announced therein have no application to this case. Thus in the recent case of Boyer v. Coxen, 92 Md. 366, BOYD, J., delivering the opinion of the Court said: "This Court has heretofore followed the rule that the master is not exempted from liability for * * * damages merely because the act complained of was done by a servant, and in many cases exemplary damages have been allowed against the master for acts done by the servant, without expressauthority from the former or ratification by him having been shown." See also Evans v. Davidson, 53 Md., p. 245-249. Again it is settled in this State as we have said, that whether the act of the servant complained of is within the scope of his duty while acting in the furtherance of his master's business is generally to be determined by the jury as a matter of fact and not by the Court as a matter of law. Consolidated R. Co. v.Pearce, 89 Md. 503. It may be very difficult, as is illustrated in this case, for the plaintiff always to obtain full and complete proof of the terms of the servants employment, and therefore it was held, as we said in the case just cited, citing Cleveland v.Newson, 45 Mich. 62, that the burden was on the defendant to show that the servant was not engaged in the course of his employment. But it is clearly shown by the testimony of the plaintiff that Steiner was employed by the defendant company as a police officer and detective, and it is further shown that, as such, it was his duty to protect the company's trains and property and to look after all violations of the law along its road. And even if this proof had not been adduced it would have been proper for the jury to infer from the nature of Steiner's employment that he was authorized by the defendant not only to drive trespassers from the train, but to arrest them for the violations of the company's regulations. And it can not be said that because the defendant did not authorize the shooting, that therefore it cannot be held liable for the resulting injury to the plaintiff. In Evans v. Davidson, 53 Md. 245, it appeared that the defendant had on his farm a negro, Lewis, who was employed to do general farm work; that on the day the plaintiff's cow was killed the defendant was away from home; that Lewis in driving the cow from the plaintiff's corn field negligently struck her with a stone and killed her; that the defendant had given no orders in regard to driving the cattle out of the field and that he did not know the cow was in the corn until after she was killed. The Court below took the case from the jury; but ALVEY, J., in delivering the opinion of this Court said. If the servant be acting at the time in the course of his master's service and for his master's benefit, within the scope of his employment, then his act though wrongful or negligent, is to be treated as that of the master, although no express command or privity of the master be shown. This general principle is sanctioned by all the authorities." And in determining whether there was legally sufficient evidence to go to the jury we said in the same case that in the very nature of the employment there must be some implied authority and duties belonging to it, and it was held, reversing the Court below, that there was legally sufficient evidence to show the servant was acting in the course of his employment, and that the first and second prayers of the plaintiff leaving it to the jury to find whether the servant had so acted should have been granted. Quite a number of authorities are cited on the brief of the appellant to the effect that in the very nature of the employment of a detective and special officer there are some implied authority and duties belonging to it, but we do not consider it necessary to discuss them, for "we suppose all would say" that it would be a positive duty of one who was employed as Steiner was by the defendant as a detective and special policeman, not only to eject trespassers from its trains, but to arrest them and use force in so doing.

This brings us to the question as to whether Steiner was acting as an employee of the company or as a commissioned officer of the State when the injury was inflicted. It appears to be clear from the testimony that he was employed and paid by the defendant at the time indicated and that he was then acting as policeman and detective. As we have already said it must be assumed that he had some implied authority and duties, even if none were expressly proved, and it certainly is not assuming very much to infer from the general nature of his employment that it was his duty to remove trespassers from the train. It must be remembered that, so far as the evidence shows there was not an actual attempt to arrest the plaintiff, but he was shot by the detective or policeman a few moments after he jumped from the train and before he had gone more than ten or fifteen feet from it.

This is a very different case from Tolchester Beach Imp. Co. v. Steinmeier, 72 Md. 313. In the first place the case just cited was an action to recover damages for false imprisonment and it was decided that the defendant company could not be held liable without proof of express precedent authority or subsequent ratification; but, as we have seen, this rule is not applicable to the case now before us. Again the arrest, which was the injurious act complained of in Steinmeier's case was not made on the premises of the company, nor, said the Court, "can it be said that it was done in the preservation of the company's property, for assuming that in the collection of drift logs the superintendent was acting for the company (which its president denies), still it is not contended that the plaintiff was interfering to prevent their securing and collection." The testimony only shows that the arrest was ordered and made because of the plaintiff's assault. And further it is said that that which the officer who made the arrest did, although paid by the defendant, was in the execution of the criminal law upon his own view of the affair, without warrant, and in discharge of what he supposed was his duty at common law, and that his act in no way enured to the benefit of the defendant company. It will be observed also that we said in the Steinmeiercase that for the purposes of that decision, it was not necessary to hold that the officer who made the arrest was in no sense an officer of the company, and that if called on to enforce its regulations and he did so purely because of his relation to the company, it would be liable for acts done within the scope of his duty as such employee, although primarily he was a State officer. And whether he was acting in one capacity or the other is a question for the jury. Dickerson et al. v. Waldron,135 Ind. 507-526; Brill v. Eddy, 115 Mo. 597-605; Railway Co. v. Hackett, 58 Ark. 387.

We are of opinion, therefore, that there is legally sufficient evidence to be found in the record to have justified the submission of the case to the jury, and the Court below having refused to do so, its judgment in favor of the defendant must be reversed.

Judgment reversed with costs and new trial awarded.

The remaining questions to be considered arise on the appeal ofCharles H. Steiner v. Louis Deck, which, as we have seen presents two questions; first, as to the correctness of the ruling of the Court in refusing to allow the appellant, defendant below, to ask witness Carlin what there was in his record or in his standing in the community, that led Steiner to arrest him merely because he saw him on that occasion; and secondly, whether there was error in granting plaintiff's two prayers and the rejection of the defendant's first prayer.

First Exception. — The record does not state what was the object in asking this question; on cross-examination however it would appear to have been the purpose of counsel to have the witness impeach his testimony already given, but the answer if any had been given must have been in the nature of a guess or an opinion, for it was impossible for the witness to state as a fact what there was in his record or standing which induced Steiner to arrest him merely because he saw him on that occasion. We find nothing in the record to support the assumption that the witness had been arrested merely because Steiner saw him. On the contrary the witness had testified that he was walking through the company's yard, that he was on the company's property, although he said he thought it was county property. What he may have meant by this last statement does not appear. If, as we have said, it was the purpose of counsel to impeach the witness, this could have been done (1) by disproving the fact testified to by him. But this was not attempted although there was ample opportunity to have done so; or (2) by general evidence affecting his veracity. But in impeaching the credit of a witness the examination must be confined to his general reputation and not be permitted as to particular facts. 1 Greenleaf on Evidence, sec. 461. If it was intended to show that he had been indicted and convicted of some crime that would go to impeach his veracity the proper evidence of such convictions should have been produced; but in spite of the fact that Steiner was subsequently examined as a witness in behalf of the defendant he did not deny the testimony given by the witness Carlin and it may be, therefore, assumed that it was true and if so the defendant was not injured by the refusal of the Court to allow the question to be asked.

Second Exception. — Was there any error in granting the plaintiff's prayers? The first of these prayers asked the Court to instruct the jury "that if they find from the evidence that the plaintiff was walking on or near the tracks of the Baltimore and Ohio Railroad Company as testified to and that the defendant came within a short distance of the plaintiff and recklessly or wantonly fired a pistol towards the plaintiff and thereby shot and wounded him, then their verdict must be for the plaintiff, unless they are satisfied from the evidence that said shooting was done for the purpose of preventing the plaintiff from killing said Steiner or inflicting upon him great bodily harm and that the facts at the time of the shooting were such as to warrant the reasonable belief in Steiner's mind, in the honest exercise of his judgment that there was no other reasonably possible, or at least probable, means of preventing such injury to said Steiner and that his act was one of necessity." By this instruction the jury are told that if they find the defendant recklessly and wantonly shot the plaintiff they must find for him, unless they find said shooting was done in self defense. This proposition appears to be a contradiction in terms, for if the shooting was found from the evidence to have been reckless and wanton, the jury could not, properly, from the same evidence, have found it to have been done in self defense. In other words having found from all the evidence that the shooting was unjustifiable they could not find from the same evidence that said shooting was justified by an honest belief of Steiner that he was in danger of great bodily harm. We find no objection to plaintiff's second prayer. It properly states the rule of the measure of damages in a case like this. Defendant's first prayer told the jury that the plaintiff cannot recover a verdict unless they find that the defendant intentionally shot the plaintiff.

We cannot accede to this proposition for the right of the plaintiff in this case to recover is founded, not on the actual intention of the defendant, but on his reckless and wanton conduct as alleged in the narr.

By reason of the error in granting the plaintiff's first prayer the judgment against the defendant, Charles A. Steiner, will be reversed and the cause remanded for a new trial.

Judgment reversed with costs and a new trial awarded.

(Decided January 12th, 1905)