Blankenbaker v. Chicago., M. & St. P. Ry. Co. ( 1918 )

McCOY, J.

There was verdict and judgment in favor of plaintiff and1 a'gainist both, defendants, from which judgment the defendant 'Chicago, Milwaukee & St. Paul Railway Company appeals. Thie vital question to be determined in this case is whether or not appellant is liable for the payment of damages alt all under the facts and 'circumstances' of this lease. On the 13th of June, 1917, respondent wias a passenger upon one of appellant’s trains. DTpon said train, wias a newsboy or news agent engaged in selling books, papers, cigars', hutches., and other things to passengers, anld collecting, from persons to wlipm sales were made, the purchase price of .such sales. The defendant Van Noy Interstate Company is an independent corporation, and whs engaged in the business Oif operating railway restaurants along appellant’s line of railway, and by contract with appellant obtained and had the concession and' privilege of placing -news' agents upon the trains of appellant who were authorized to- make sales of -such merchandise as might be made to passengers, 'and ¡to collect the piurchas'e price of such sales. At the said time that respondent was a passenger upon ap'pellant’-s -train he purchased lain orange from the said news- agent, and- in paying for -sa'idl orange and the making -of change resulting from said purchase a dispute arose between- respondent and said' news agent as' to the correct amount -of- change -belonging .to said news agent, said news agent .contending that he had delivered! to respondent an excessive amount -of change; that during said dispute over the correctness' of said1 change said news agent violently assaulted, struck, beat, 'arid wounded respondent. This action was instituted to recover dam'agels. frotmi appellant .and said Van Noy Company •claimed to 'have ¡been caused by said unjustifiable assault.

Appellant presents three propositions for determination.; (i) Error 'in excluding a certain certified transcript of justice’s docket; (2) 'error in denying appellant's motion to direct a verdict; (3) error in relation to instructions refused and given.

[1] Appellant offered in evidence a certified! copy of justice’s docket, shldwing that respondent had been charged with ‘and' pleaded guilty to having unlawfully and feloniously received .stolen property. It appeared .'that respondent was engaged in the business of purchasing scrap iron, copper, 'brass, lead, etic., and he testified that he was arrested for having slome stolen metal type in his possession., and1 not knowing fromi whom he purchased the same, and not knowing from whom the same was originally purchased, the same having been part of a larger bulk purehaise, and, not having to plead' guilty to having stolen the same, he did! plead guilty to having stolen property in his possession, and paid a fine lotf $10 and costs rather than be delayed.by. a trial.- We are of the view that appellant Was not prejudiced by the exclusion of this evidence. There is but little, If any, conflict In the evidfence in thiiis. case. The question o>f respondent’s credibility as a witness' was not materially involved in a determination of the issues on the trial.

[2] At the close Icif plaintiff’s .testimony, .and again at the close of all the evidence, appellant moved the Court to direct verdict in its favor upon the ground ¡that plaintiff' failed to prove a case " against said defendant; Had failed to prove that any employee of the 'defendant company apprehended or had reason- to believe that an assault was' to ibe. ;or was likely to be, committed by the- news agent upon the plaintiff; had failed to show that the conductor or brakemian or other employee on the train Had notice or knowledge of the assault, or an opportunity ¡to have prevented it or to have protected the plaintiff against injury; and for'the reason that there 'was na evidence of negligence or default or failure on. the part of the railroad! company to perform its duty towards plaintiff as a passenger upon said train. We are of the view that this motion to 'diirelct a verdict was properly overruledl. There is no question ‘but what lani .assault 'was' committed upon respondent by the news agent who was •-engaged in selling merchandise upon tihILs train by ■permission and u-ndler contract with appellant, and' there is no question but .wlhat said assault was committed! ¡by said news agent- -while negage'dl in, and within the scope -of, the 'business he -was' authorized- to transact upo® ¡said train. We are -of the view, -add so hold, that a news agent, performing such duties on passenger trains, is a part and- portion of th-e -passenger service furnished- ¡by the railway company to its- patron ¡passengers-, and- stands- upo® the same legal basis a© -sleeping Car -service, and sleeping car employees; • and, although sudb agent -may have been- in the immediate employment of some other independent oonitr,actor -who -was obliged by idomtract with 'the railway company to perform .such services, still such news agent -was .also -the- agent of the railway -oompany ,s.'o- -far as. -concerned the -transportation -of passengers. . Suich .services' under such circumstances are -performed by the railway company as a part of its general service -of transporting passengers.

[3] The question involved' -in this case i-s' not one of negligence, but is a question- of the liability of .a -principal for the wrongful tort actions -o-f the agent done within- the scope of the -agent’s authority. The allegation -of negligence in the -complaint in this action was unnecessary, a complete cause of action1 having been alleged without reference thereto. In Dwinelle v. New York C. & H. Ry. Co., 120 N. Y. 117, 24 N. E. 319, 8 L. R. A., 224, 17 Am. St. Rep. 611, it was held that .the porter of a sleeping -car which formed a part of ¡the train of a railway company under contract with -the •owner, who sold separate tickets' - for privileges upon such -cars, and who furnished -his own .servant to collect tickets, a-nld assist passengers, was -a servant ¡of the -railway -company, for whose wrongful tort actions, s-uoh as assault, -the rail-way was responsible under .its -contract to .tramispioirt passengers, notwithstanding -any agreement which may -have ¡been made upon the subject between the company and the- owner of the car. To the -same effect are Williams v. Pullman Car Co., 40 La. Ann. 417, 4 South. 85, 8 Am. St. Rep; 538; Penn. Co. v. Roy, 102 U. S. 451, 26 L. Ed. 141; Louisville Ry. Co. v. Church, 155 Ala. 329, 46 South. 457, 130 Am. St. Rep. 29, and note; Gannon v. Chicago Ry. Co., 141 Iowa, 37, 117 . W. 966; Thorpe v. N. Y. Cent. Ry. Ci., 76 N. Y. 402, 32 Am. Rep. 325; Cleveland Ry. Co. v. Walrath, 38 Ohio St. 461, 43 Am. Rep. 433. The rule stated in 10 C. J. 884, is as follows:

“There 'is in general no difficulty in determining wlho are servants .or employees of .the carrier in, sudh sense as to render -it liable for their wrongful acts,, the questions which have usually -arisen being as to whether the wrong of the -servant or employee 'wla-s within the (scope -of his authority, or in ith-e course of his employment, so as to render hiiis principal liable for injuries resulting therefrom. The duty of the carrier to protect the passenger must be discharged by -means of its employees engaged in carrying out the transportation contracted for. * * ,* Where a duty which the carrier owies to its piassengers iis involved, it cannot shift the obligation by delegating the performance of su'ch duty to- -another, and, as respects the liability of the carrier for the proper performance of such dulty, the employees of sudh other may be regarded .as. the employees of the carrier. Thus- the carrier may be held liable as. respects such' duties for the negligent or wrongful 'acts of the employees of .an' independent contractor. * * * The question as to whether the person whose 'wrong Caused - the injury, was the- employee of the carrier has arisen in determining the liability of railroad companies for Mile negligence loir wrongful acts of porters on sleeping 'Cars owned ¡and controlled by 'an independent company, but used by tire railroad company' as a part of its train, and -it has been held that, inasmuch as the employees of the railroad company have entire control of the trains and aré 'engaged .in the transportation of the passengers under contract with him, -although he m'ay be availing himself of the conveniences and additional (accommodations of the sleeping car, such porters -are to be deemed employees of the railroad -company so' far as the passenger is- concerned”

The same logic, the same reasoning, that holds a railway -company responsible for the wrongful dots of a sleeping car porter,' and makes such porter -an agent and employee of the railway company, applies to a mewls agent selling merchandise for the accommodation -of -the passengers upon a railway train. The .matters and things the news agent is -authorized -to do within the .scope of his employment .are a part and- portion of the train service furnished hte passenger by the railway company. ' •

In Cleaney v. Parker, 167 Ala. 134, 51 South, 951, 140 Am. St. Rep. 21, it is held that, a news agent on a train is acting within- the general scope and 'line of 'his employment, when he eomipels a passenger to pay the .second time for a lemon purchased, using threats landl an attempt to retake the lemon to compel sutdli payment, 'so as to render Ink prm'cipal or master liable for the ¡wrongful tortious assault, although the news agent may have exceeded- hts, authority and violated the instructions of his principal. In .fchiis case the newis agent was acting within the scope of itó's employment when ¡he assaulted respondent. Under the authorities hereinbefore cited, the appellant, ini the case present, was the principal or master of the news -agent ¡in question so -far as ¡aonicerned the respondent as- a passenger upon appellant’s train.

The instructions requested present -substantially the .same propositions! involved- in the motion to direct -verdict. They presented substantially the proposition that -the said news ¡agent was not an employee of appellant, and that -appellant Could ¡only be held liable for the negligence or wrongful acts of its employees who 'had charge of ¡said train, such as the -conductor and brakeman. We are of -the view that the ¡instructions -were very favorable to appellant, possibly more so than warranted1, and appellant ¡could not possibly have been prejudiced thereby. The iinistructibns as given f-ul-ly and fairly presented the merits of the real issues tried out.

Finding no error in the record, the judgment and order appealed from are affirmed.