PRESSLEY V.MOBILE &
it is conceded that the ultimate facts- on which . defendantis Habil' ' . ;. i ;." ity depends must be examined. It is not enough that the judg1¥ent of the superior court of Cook county, Illinois, has beenrev.ersed,JlUt we must in some way ascertain whether defendarnt is liable to'plain. tiff in the sum for which judgment has been given against him. Cases have. arisen in which it w:as thought necessary to. require a. de· fendant in a judgment at law to seek relief in equity from such judg. ment. Where the facts are numerous and complicated,the propriety of that co'urse will be apparent. ',. In other cases it may be necessary to frame an issue for a jury in order to determine the liability of the defendant. Cooley v. Gregory. 16 Wis. 303. .,.. , Upon any infonilh.tion we now have in' the 'case at bar it will not be'neeessary to resort to either of these proceedings:' According to the opinion of the Illinois court the matter iIi. issue between the parties is the effect ofa discharge in bankruptcy on plaintlff'sdemand. That matter will be heard in the superior court of Cook county, Illinois; and we can await the decision of that court without putting the parties totha expense of another trial here. Meanwhile all proceed· ings on this judgment will be stayed, with -leave to defendant to renew his motion to vacate our judgment if he shall be' successful in' the courts of Illinois. . If this measure of relief shall not 'be adequate to the protection of defendant's rights, he may be compelled to go into equity; or, if he has anything further to s'uggest in this proceeding, he will be heard after notice to plaintiff .
PRESSLEY V. MOBILE
& G. R. Co.
(Circuit CQurt, M. D. Alabama. May Term, 1882.)
1. PRINCIPAL AND AGENT-LIABILITY FOR MALICIOUS ACTS 011' AGENT.
An agent acting under an authority to control Rnd supervise the lands of a corporation cannot institute against parties a criminal prosecution for Iarcenyor other offense against the criminal laws, committed in reference to the property in his custody as agent, and so bind his principal in damages for a malicious prosecution, though it be shown that the prosecution was without probable cause and was malicious. 2.
SAME-LIABILITY, WHERE ATTACHES.
If an agent, while acting within the range of his employment, do an act in. jurlOus to another, either through negligence, wantonness, or intention, then for such abuse of the authority conferred upon him or implied in his appointment 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.
a.RAILRoAD COMPANIES-UNLAWFUL ACTS Oll' LAND AGEN'rs-LrABILITY.
An agent of a railroad company, having and exercising supervision over the lands of the company and in charge of such lands, making leases, collecting rents and stumpage, and negotiating sales of the lands for the company, who invokes the criminal law by bringing a charge of grand larceny against a party for spoliation of the timber lands of the company. is not in so doing acting within the scope of his agency or in the course of his employment, and the company is therefore not to be held responsible fOl' such actions done maliciously by him.
Heardopon Motion for New Trial. D. S. Troy and H. C. Tompkins, for plaintiff. David Clopton and J. T. Norman, for defendant. BRUCE, J. This is an action for damages for a malicious prosecution, instituted by the plaintiff against the defendant,. a corporation organized under the laws of Alabama and doing business in the state of Alabama. The declaration alleges that the defendant, on the twenty-fifth day of March, 1881, at Pollard, in the county of Escambia, in the state of Alabama, the circuit court for said count.y being then and there in session, · · · by its duly-authorized agent, W. J. Van Kirk, upon oath wrongfully, falsely, and maliciously, and without any reasonable or probable cause, · · ·. charged the plaintiff with having committed the crime of grand larceny; · · · that the defendant caused and induced the grand jury to find a bill of indictment against him; and that upon a writ issued he was arrested and held for trial upon the indictment, and afterwards, upon a plea of not guilty, he was tried in said court and acquitted, and the prosecution ended. To this declaration the defendant corporation plead not guilty. The verdict of the jury was for plaintiff, and the main question made upon the motion for a new trial is, whether the defendant railroad company can be held responsible in damages for what Van Kirk did in the institution of the prosecution against the plaintiff, even if he was the agent of the defendant in the collection of rents, stumpages, and to sell and take charge of the lands of the company, and acted in the matter without probable cause. It is not claimed that the agent, Van Kirk, had from the defendant railroad company any express authority to do what he did do in the matter of the institution of the prosecution of the plaintiff, nor is it claimed that there was on the part of the corporation, by any of its officers or agents, an;y subsequent ratification, approval, or sanction
PRESSLEY V. MOBILE & G.
of what Van Kirk had done in the matter of the prosecution; and the proposition of the defendant railroad company is that it cannot be held for the malicious acts of its agent, Van Kirk, upon any iruplied authority to do what he did in the matter of the prosecution of plaintiff, and that it can only be held responsible upon proof showing express authority or subsequent ratification of his (the agent's) acts. Van Kirk's employment was that of a land agent for the company, and he had and exercised supervision over the lands of the railroad company in Escambia and other counties in Alabama. He was in charge of their lands; made leases, collected rents, stumpage, and' even negotia:ted sales of lands for the railroad company. The question thenis,can an agent, acting under suchan authority, institute against parties a criminal prosecution for larceny or other offense against the criminal laws, committed in reference to the property in his' custodias agent, and BO bind his 'pHncipalln damages for a malicious prosecution, if it shall be shown that the' prosecution was without probable cause and malicious ? It is settled law that corporations are liable for torts committed by their agents in the discharge of the business of their employment, and within the proper range of such employment. Philadelphia, W. « B. R. Go. v. Quigley, 21 How. 202; Merchant8' Bank v. Statt Bank, 10 Wall. 645; Redf. Railw. § 130, and authorities there cited. It was formerly held that a railroad company could not be held for the willful act of its employe, unless the act was previously ordered or subsequently ratified by the corporation. That rule has been mod.. ified, and in the recent case of Gilliam v. S. «N. A. R. 00., in manu.. script, the supreme court of Alabama, after saying that the rule has never been fully satisfactory, say:
.. The precise modification is that if the agent, while acting within the range of his employment, do an act injurious to another, either through negligence wantol\ness, or intention, then for such abuse of the authority conferred upon him, or implied in his appointment, 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,"
To this proposition many authorities are cited. ceeds:
The court pro-
"The older cases follow the doctrine declared in MQMann'U$ Crochet, 1 East, 106, and relieve the master or employer from liability for tortiousack of the agent if intentionally done, although within the range of his dutil'S, Ullless the tortious act was commanded or adopted by the master. In Rail1'oad
Co. Webb, 49 Ala. 240, this court held,that a railroad complJny canuQt be sued in trespass for the willful tort of its employe unless the act was previously ordered or subsequently ratified by the corporation. We tbink tbe principle there announced should be so far modified as to limit its application to tortious acts of the agent done outside his employment; to this extent we adopt the modified rUleRS applicable to railJ:oads and their employes."
The question, then, is, not whether the agent, Van Kirk, had been ordered by the railroad company to do the act complained of, or whether the had been BQ.bsequently ratified by the corporation; nOr is the question what was th,e agent's motive in what he didwhether to s,erve his prinoipal or to carry;out a pQ.;rpose of his own; but the question is, and the test of the matter is, was the act com· emplayment, and plained of done by agent Van Kirk in the course of within the ra'1lfJ8 oj his duties as agent of the defendant railroad oompany? Tested, then, by this rule, can it be maintained that Van Kirk, in the institution of the prosecution complained of, was acting within, the range of hiB duties as ,agent, and in the course of his employ. ment as such agent? He was in charge of the lands of the com· pany, and it may be said that in every agency there is inoidental or ,implied power and to the agent from his principal tp employ all the neoessary and, 'Usual, means to exeoute the prinoipal authority witheffeot. , Authorities are oHed, to this, gel;leral proposition, and they show that this rul!'l; is qarried, not only to the extent that an agent is authorized-to employ the usual means ,to effeotthe object of his eman agent to employ exploymenh but it goes, 'so far as traordinary means and remedies pr.ovided by law; ,as, 'for instance, when an agent is authorized to a debt he may not only bring . suit, but may resod t.o process, Qr to a replevin or suit, and has authority to bind his prinoipal in a bond requirfld by law in order to obtain such remedy. Ca'ses are also cited to the proposition that 811'1 agent to collect a debt; may, 'when the law allows it, arrest and impri'son the, de.btor,'upon the pdnciple that it is one otthe means of the reoovery of the debt. . . . Imprisonnl(lIit fot debt; hbwever, is inhibited by article 1, § 22, of the stateofAlabama; and conceding that Van Kirk, in orderto carry out the of his'appointment; might emploY' all the usnal 'extraor'dinary'means and pr6videdby law, still theqnestionremains, could he for such a purpose resort
PRESSLEY V. MOBILE & G. B. 00.
to a criminal prosecution, 'and his principal' for it the prosecution was malicious? ' It is claimed that, by section 4362 of the Revised Code of Alabama, a criminal prosecution for larc'cny is a means for tlie 'recovery of a debt, because by its terms the owner of the property stolen may recover the value of his property. That section provides in cases of convictiou for larceny, and when the property has not been returned, ". · · the assessed value shall be made an item in the costs of the case, and whenever the costs in such cases, including the value of property stolen, are paid or worked at hard'labor, the court of county commissioners must, upon a propel' showing, allow and draw a warrant on the county treasury in favor of the owner of such property, for the value ,thereof, to be paid out of the fund arising from labor." . , the proceeds of In view of the constitutiona.l provision to which we' 'have referred, it can hardly be maintained that it was the object of this statute to furnish a remedy to a party property had been. stolen, and thus give sanction to the idea that a criminal ptosecution 'may be reoorted to as a means for the recovery of a debt. It is more consistent to say that this provision of the law wasnotinten.ded for the benefit of the perdon whose property had been stolen, but that it was to lend additional sllnction to the law, and thus more effectually deter persons from the' commission of 'this class of crime. When crime is committed against person or property, it is a menace to the public welfare, and the law is invoked to protect society and vindicate public justice. Grand juries are not organized to make inquest and indict persons in order that some'one whose has been wrongfully taken' may havefestitution, but courts ano juries are charged a4ininistration of the laW for the public good. . . . An is made that there is no more effectual wa.y by whiclJ this property ofth3 railroad company (its timber lands) could be protected than by invoking the criminal law agait;lstdepredators upon it, and the prosecutions' in the United States courts are referred to, showing the purpose and efficiency of this remedy in protecting the public lands from spoliation. Grant all that can be said upon that subject, and it does not show that an appeal to the criminal law of the land by the individual citizen is a proper means to obtain against· redress for a ptivate wrong. 'When an offense the law, as to the person :01' property of the individJal citizen, he .properly makes complaint and institutes a prosecuti6n against the
WfOpg·doer; but he does so in vindication of the law which has been violated on his person or property, and not to secure a remedy to himself for his private wrong. In the case at bar, if the property of the corporation defendant in charge of agent Van Kirk was depredated upon, and the criminal law violated in regard to it,it might have been the agent's duty to complain to the officers of public justice, and even to take proper steps to have the matter presented to a grand jury; but in doing so could he act otherwise than as a citizen-that is, in the absence of express authority from his compftny so to do? The question is, can such action on his part be held to be within the scope of his agency and in the course of his employment? There may be, and the books recognize some difficulty in determining what acts of an agent or employe are properly within the range and course of his employment; but to say that to put the criminal law in operation against party on a charge of larceny of the property of the corporation is within the scope of his agency, and in the course of his eI;l1ployment, is a proposition which, in the light of the decided cases, cannot be mai;ntained. There are cases to the contrary. Oarter v. Howe Sewin!l-mallhine 00. 51 Md. 290, and auth.orities there cited. . This oonclusion seems to be strengthened from another view of the subject. Corporations can only aot by means of agents and· empioyes, and the decided cases upon the question of the .liability of corporations for the acts of their agents and employes are mainly cases in reference to raiJroad corp01'ations where the employes were employed in the operation of rolling stock upon the road in the transportation of freight and passengers. In these cases, employes such as conductors, engineers, and others. are put in. their positions by the corporations, and are charged withthe management a!ld control of agencies and instruments put into their hands by, and to be used 'by them in behalf of., the in its business, and while so employed the railroad company must be held to to their acts, for they are the corporation itself. in action,and it is bound for their acts, whether done negligently, unskillfully, 01' willfully. In the.case bar the employment of Van Kirk agent was not an' employnient of this character; his age!lcy was not connected with the operation of the railroad, and he was not charged with the property of the rail!oad company used in the operation of the railroad. His agency bad reference to other property alt<,gether, and· his action in regard to it cannot be held to be the ,action of the corporation in same sense and to the same extent if he had been engineer
OHICAGO, M... ST. P. BY. 00.
or a conductor employed andohargedwith the management and eontrol of the means and agencies by and with which the corporation carried on its business. The conclusion is that when Van Kirk invoked the criminal law as he did he was not aoting within the scope of his agency, or in the course of his employment, and the company cannot be held responsible for his action, and that, therefore, the motion for lit new trial must prevail; and it is so ordered.
M. & ST.
((lircuit Oourt, D. Minnesota.
December Term, 1882.)
Where a master has expressly promised to repair a defect in the machinery used by the servants in his employment. the servant may recover for an .injUry caused thereby within such a period of time after the promise as would be reasonable to allow: for its performance.
2. SAME-PROMIS;'; BY AGENT OF MASTER.
A promise to repair made by the agent of the magter is binding on the master, but the burdell of proof is on the plaintiff 'to establish such promise.
3. SAME-MEASURE OF DAHAGJIl8.
The Itward of damages in such cases must not be excessive. They are only to be remunerative,-compensatory,-a just and. fair amount for the injury-sus_ tained.
Ueland Shore8, for plaintiff. Bigelow, Flandrau tl Squire8, for defendant. NELSON, J. t (gharging jury.) This suit is brought to recover dam· ages for.a personaLinjury. 'The plaintiff was in the defendant's em,ployment as bl:akeman on. a switch-engine in: defendant's yard. His duty was tQ couple the .enginee,'to cars in making up and..breaking trains. I:;le alleges, the injury complained of was, the resultofa de,fective and unsuita;ble draft-iron or draw-bar attached to the engine, a,ndthat he .informed the yard-master of the dangex attending its use, who promised to remove it, but failed to do so. The defendant takes isaue upon the alleged defective construction of the and in its use, and it being conceded that the .plaintiff remained ,in the service of the defendant, coupling with thia draw-bar, after of its danger, allegea that it is not responsible,fol' the in· .juJ:Y. The issue is sharply define.d, and presents, in connection with