Munick v. City of Durham ( 1921 )

Clabic, C. J.

The testimony for the plaintiff presents one of the most singular occurrences that has come to this Court. The defendant offered no evidence, and the nonsuit was granted on the uncontradicted testimony for the plaintiff, as above set out. It is, therefore, taken as true, with all the inferences from it in the most favorable light to the plaintiff. But indeed there seems to he but one that could be drawn from it. The plaintiff, an old and feeble man, went to the water company on receiving a notice sent by it to pay his bill. He handed the clerk the money, and she gave him a receipt. A part of the payment was fifty “pennies,” that is, one-cent pieces, wrapped up together. While he was standing there and. she was counting the pennies, the manager of the water company came in, knocked the pennies off the counter on the floor, cursed the plaintiff, calling him a “Gr — d-d—n Jew,” told him to pick up the pennies, struck him, pulled him into another room, struck' him repeatedly, interrupted this to admit another patron, and after the latter went out, the superintendent resumed his beating of the plaintiff, who offered no resistance, and begged to be turned loose to go home,, shook him, choked him, put a towel over his face, suffocating him, and finally when the plaintiff tendered a dollar bill he told him to take his pennies and to leave and not come back.

The official (Bolton) was indicted in the criminal court and convicted and merely fined. Taking this occurrence to be as stated by the plaintiff, who is not contradicted and who proved a good character, a more brutal and unprovoked assault could not be presented. It was absolutely without justification. ' The pennies, under the United States statute, were a legal tender to the amount of 25 cents, U. S. Compiled Statutes, 1918, sec. 6514, and if the clerk had objected the water company could not have been compelled to receive beyond that sum in pennies, but it was no offense to tender a larger sum in one cent pieces, and the lady clerk accepted them, and even if the tender of fifty of them was for any reason objectionable (which does not appear), it certainly did not justify the treatment the plaintiff received.

There is no explanation of tbe conduct of tbe company’s superintendent, and tbe only provocation given wbicb w§ can infer from tbe language used by Bolton is tbe fact tbat tbe plaintiff was a Jew. He made no other charge. Tbe treatment wbicb tbe plaintiff received is paralleled by tbat which is portrayed by Scott in Ivanhoe- in tbe treatment of Isaac of York seven centuries ago, and by Shakespeare as meted out to Jews in tbe Merchant of Venice, also centuries ago. Tbe world has long outlived this treatment of an historic race, except perhaps in “darkest Russia,” when under tbe Czars.

When Disraeli, later Prime Minister of tbe British Empire, was reproached in Parliament for being a Jew, be made tbe memorable reply, “When tbe ancestors of tbe right honorable gentleman were painted savages roaming naked in tbe forests of Germany, my ancestors were princes in Israel and High Priests in tbe Temple of Solomon.”

Every voter, every witness, and every official takes an oath upon a sacred Book, every sentence and word in which was written by a Jew. When tbe Savior was incarnated, after tbe flesh he was of tbe tribe of Ju’dab, and His mother, whom a great church bolds immaculate, if not divine, has her name borne by millions throughout tbe civilized world. Whatever tbe shortcomings of any individual, it is strange tbat in this day of enlightenment such prejudices as were shown in this case should survive against tbe race to wbicb tbe plaintiff belongs. This plaintiff proved without contradiction a good character, and certainly there is no evidence wbicb justified in any degree the brutal assault made upon him for wbicb no excuse is offered. For some unexplained reason tbe brutal assailant, though convicted, was punished only by a fine. It is to be presumed, however, tbat tbe city discharged him from its service.

Tbe ground upon wbicb tbe nonsuit was asked and allowed, as presented in this Court, is that tbe defendants, and tbe city of Durham, are not responsible for tbe act of its agent, Harvey Bolton, superintendent of the water-works, or. that, at least, in making tbe assault be was not within tbe scope of bis authority in tbat be had no instructions from tbe defendants to commit such violence. At tbe time tbat tbe assault was made by tbe said Harvey Bolton, be was acting in bis capacity as agent. Had be been acting for a water company under private ownership it could not be contended tbat tbe corporation would not be responsible. He was there in tbe prosecution and furtherance of tbe duties assigned to him by tbe defendant municipality. Roberts v. R. R., 143 N. C., 179. Indeed, the facts are very similar to those in Bucken v. R. R., 157 N. C., 443, “Acting within the scope of employment means while on duty.” Cook v. R. R., 128 N. C., 336.

In Ange v. Woodmen, 173 N. C., 33, it is said: “It is now fully.established tbat corporations may be- held liable for negligence and malicious torts, and the responsibility will be imputed whenever such wrongs are committed by their'employees and agents in the course of their employment and within its scope. ... In many of the cases and in reliable text-books 'course of employment’ is stated and considered as sufficiently inclusive, but whether the one or the other descriptive term is used, they have the same significance in importing liability on the part of the principal when the agent is engaged in the work that its principal has employed or directed him to do, and in the effort to accomplish it. When such conduct comes within the description that constitutes an actionable wrong, the corporation principal, as in other cases of principal and agent, is liable not only for the act itself, but for the ways and means employed in the performance thereof.” In 1 Thompson Negligence, sec. 554, it is pointed out that unless the above principle is maintained, “It will always be more safe and profitable for a man to conduct his business vicariously than in his own person. He would escape liability for the consequences of many acts connected with his business springing from the imperfections of human nature, because done by another for which he’ would be responsible if done by himself. Meanwhile, the public, obliged to deal or come in contact with his agent, for injuries done by them must be left wholly without redress. He might delegate to persons pecuniarily irresponsible the care of large factories, of extensive mines, of ships at sea, or of railroad trains on land, and these persons, by the use of the extensive power thus committed to them, might inflict wanton and malicious injuries on third persons, without other restraint than that which springs from the imperfect execution of the criminal laws. A doctrine so fruitful of mischief could not long stand unshaken in an enlightened jurisprudence.” This Court has often held the master liable, even if the agent was willful, provided it was committed in the course of his employment. Jackson v. Tel. Co., 139 N. C., 347.

Indeed,- the doctrine goes further, and the principal is liable if one coming on the premises in connection with business dealings, or by invitation, is assaulted by one of its agents. This is settled by the leading case of Daniel v. R. R., 117 N. C., 592, and the numerous citations to the case in the Anno. Ed. Indeed, the same ruling has been uniformly made, and was reaffirmed at this term in Clark v. R. R., ante, 110.

Not only is the corporation liable for injuries thus committed by its agents, but “it is the duty of a carrier to protect its passengers from injury, insults, violence, and ill-treatment from its servants, other passengers, or third persons.” Seawell v. R. R., 132 N. C., 859, citing numerous cases. Indeed, as far back as 1883, Ruffin, J., in Britton v. R. R., 88 N. C., 544, in terms ever since deemed settled law, said: “The carrier owes to the passenger the duty of protecting him from violence and assaults of other passengers and intruders, and will be responsible for Ms own or Ms servants’ negligence in tbis particular, wben by tbe exercise of proper care tbe acts of violence might bave been foreseen and prevented.” Tbis is cited witb approval in Seawell v. R. R., supra. Tbe same rule applies to any other corporation. In that case tbe passenger was assaulted by a mob, and tbe defendant was held liable because “four employees were present and it was shown that none of them made tbe slightest attempt to protect tbe plaintiff, and indeed there was evidence that two of them actively participated in, or at least encouraged tbe assault.” Tbis case was reheard and reaffirmed, 133 N. C., 517, tbe Court saying: “A careful examination of all tbe authorities shows no ease, and tbe appellants cite none, that under similar circumstances tbe railroad company has not been held liable, unless it exerted whatever power it could to protect tbe passenger from tbe mob,” . . . adding, “Tbe cases are uniform, fastening liability upon a common carrier for failure to exert such protection as it could to a passenger against a mob,” citing numerous cases.

That tbe corporation is liable for tbe mistreatment of one invited upon its premises, as tbis plaintiff was, or even if it fails to protect him as far as it can from violence by others while upon its premises, is beyond controversy. Indeed, tbe principle is so well settled that it needs no citation of authority.

Ve apprehend, however, that bis Honor did not nonsuit tbe plaintiff upon any views to tbe contrary, but doubtless upon tbe ground that tbe city was not liable. That contention by tbe defendant is equally untenable. In McIlhenney v. Wilmington, 127 N. C., 149, it is said: “Tbe law is too well settled to admit of debate. It may, on review of tbe authorities, which are uniform, be thus stated: When cities are acting in their corporate character, or in tbe exercise of powers for their own advantage, they are liable for damages caused by tbe negligence or torts of their officers or agents; but where they are exercising tbe judicial, discretionary, or legislative authority conferred by their charters or are discharging their duty solely for tbe public benefit, they are not liable for tbe torts or negligence of their officers, unless there is some statute which subjects them to liability therefor,” citing numerous eases. Tbe distinction is very broad and clear, and is settled by all tbe authorities substantially as follows: Wherever á city is exercising a governmental function, or police power, it is not responsible for tbe torts or negligence of its officers in tbe absence of a statute imposing such liability; but wben it is acting in its business capacity, as in operating a water or lighting plant or other business function, it is liable for the conduct of its agents and servants exactly to tbe same extent that any other business corporation would be liable under tbe same circumstances. Tbe distinction thus laid down in McIlhenney v. Wilmington, supra, has been often cited witb approval.

. To sum up: The assault upon the plaintiff was of the most brutal and unprovoked nature. Indeed there is no evidence set up in this case that tends to palliate or mitigate the assault, which, it appears, was entirely unprovoked. There is no question that Bolton was the officer of the corporation, and was acting in the discharge of his duty, and that the plaintiff was on the premises at the invitation of the corporation; and further, it was the duty of the corporation not only to refrain from assaulting or injuring the plaintiff while there, but to protect him from any violence which it could reasonably have foreseen if offered by others; and still further, the city operating the water plant in its business capacity and not under its governmental or police power, on these facts the same liability was imposed upon the city as if it were a business plant.

The judgment entering a nonsuit must be

Reversed.