Illinois Central Railroad v. Latham

Whitfield, J.,

delivered the opinion of the court.

Accepting the plaintiff’s testimony as true, it appears that he was riding on top of the coach to avoid the payment of his fare, and did not go back to the caboose because he feared the conductor would say something. He got on at Memphis to go to Sardis. The fare was $1.50. The brakeman did not demand $1.50, but fifty cents; he did not eject him when the demand for fifty cents was first made and declined, and not until the transit was nearly terminated. Under the rules, introduced by plaintiff, and as explained by Homek Williams, a witness for plaintiff, it would have been the duty of the brakeman to report to the conductor the presence of plaintiff on the train, and act as to his ejection under the conductor’s orders. The brakeman made no report to the conductor whatever, but acted independently of him. Failing to get the money — the fifty cents — he *35 cursed the plaintiff and shoved Mm off the moving train. Surely, in no just and reasonable view can it be held that in the acts of the brakeman thus done was he acting in his master’s business, or with intent to perform any duty due to the master. He was not demanding “fare,” but money to put in his pocket. He did not eject him under the orders of the conductor, nor when — aside from any orders of the conductor — he first discovered him, nor at the next station. He was plainly attempting to extort money for his private use.

We are not prepared to hold that it may not be the implied duty of a brakeman to eject trespassers, on the idea clearly put by Judge Andrews in 87 N. Y., 28 , that “the implied authority in such a case is an inference from the nature of the business, and its actual daily exercise according to common observation and experience, ’ ’ a statement of the law copied literally and approved in Kansas City, etc., v. Kelly, in 14 Pacific Reporter, 173. It is true the contrary is held in 35 W. Va., 492 , and possibly in other cases, but what may be the better reason is not now before us, and we leave this open, as not necessary now to decide. The question here is, whether the brakeman, in doing what he did as he did it, was acting for the company or in the accomplishment solely of his own independent, wilful, malicious and wicked purposes, using his authority to eject trespassers, if any there was, as a mere cover under which to extort money from appellee, not for fare, but for his pocket % The case'in 14 Pacific Rep., 173 , is clearly a case where the injured boy was ejected from the train as a trespasser, simply to get him off, as being improperly on the train, in execution of what the court held the implied duty of the brakeman to eject trespassers. Manifestly, in that case, the brakeman acted in discharge of what he deemed a duty to the company. There was no hint in that case of any act done by the brakeman for his own private benefit or to gratify even private malice.

The true rule is thus clearly announced in 64 N. Y., p. 136, as follows: “It seems to be clear . . . that the act of *36 the servant causing actionable injury to a third person does not subject to civil responsibility in all cases where it appears that the servant was, at the time, in the use of, his master’s property, or because the act, in some general sense, was done while he was doing his master’s business, irrespective of the real nature and motive of the transaction. On the other hand, the master is not exempt from responsibility in all cases, on showing that the servant, without express authority, designed to do the act or the injury complained of. If he is authorized to use force against another, when necessary in executing his master’s orders, the master commits it to him to decide what degree of force he shall use; and if, through misjndgment'or violence of temper, he goes beyond the necessity of the occasion, and gives a right of action to another, he cannot, as to third persons, be said to have been acting without the line of his duty, or to have departed from his master’s business. If, however, the servant, under guise and cover of executing his master’s orders, and exercising the authority conferred .upon him, wilfully and designedly, for the purpose of accomplishing his own independent malicious or wicked purposes, does an injury to another, then the master is not liable. The relation of master and servant, as to that transaction, does not exist between them. And when it is said that the master is not responsible for the wilful wrong of the servant, the language is to be understood as referring to an act of positive and designed injury, not done with a view to the master’s service, or for the purpose of executing his orders.” We approve this as an admirable statement of the law.

It is true that, ordinarily, the question whether the brakeman’s act was within the line of his duty, done for the master and in his business, is one of fact for the jury, since, ordinarily, there is conflict in the evidence. But in this case, on the plaintiff’s own testimony, the court should have granted the peremptory charge, following the cases of Railroad Co. v. McAfee, 71 Miss., 70 , and Railroad Co. v. Harris, Ib., 74.

Judgment reversed and cause remanded.