TEXAS & P. RY. CO. v. SCOVIL:LE.:
CoUrt of Appeals, Fifth Circuit. No. 208.
AND 8IllRVANT-LIABO;i'u iTO THIRD
May 22, 1894.)
WANTON AND MALICIOUS
and maliclou!!use of the steam whistle of a locomotive. by servants Of a railroad company who are In chal'ge of the locomotive, whifu'lt 18 lntnotlon 0Il a regular or authorized run, Is an act within the scope, of! their employment, so far as to charg-e the company with liability for injUries caused thereby. Locke, District Judge, dissenting;
In Error to the OIrcuit Court of the United States for the Eastern District dfTexas. This #,$ an action by P. A.. Scoville against the Texas & Pacific RaihvaY,Company fordanillges for personal injuries. The circuit court overruled a.demurrerto the petition, and rendered judgment for plaintttr. bl'()Ught error; T. J. Freeman, for plaintiff in error. O. C.neverett and R. O. De Graffenried, for defendant in error. Before McCORMICK, Circuit Judge, and LOOKE, District Judge. McCORMICK, Oircuit Judge. P. A. Scoville, the defendant in error, brought Jhis action.a.gainst the Texas & Pacific Railway Company, the plaintiff in.error, to recover damages for injuries he claimed to have received from the willful and wanton misconduct of its servants while engaged in its business. The part of his pleading pertinent to the guestions' raised on this writ of error is as follows:
"Plaintur, for cause of action, alleges that on the 2d day of May, 1891, he was riding. on horseback (returning home from Longview, Texas) along a public road running parallel with said railway of defendant company (said road on whIch plaintiff waaso riding on horseback being about twenty-five yards ,south of said railway), and that defendant company, its agents and knew: or could have, known of the existence of said public road, and Its proximity to said defendant company's railway, the same having beeq used by the traveling public for the period of fifteen years for travel, and In tull view. ,of said railway company's agents and that imIpediately south of the road on which plaintiff was riding was a fence; that while plaintiff was passing along said road, as above set forth and described, the place on said road on which he was riding as above indicated being about one-fourth of a mile tl,'om said town of Longview Junction, a point on said, rallway, ,a train of cars III charge of, and v.nder the control of, the agents and of defendant company, while coming east from said Lon,e:view Junction, whilenep-ing the plaintiff, and when directly opposite the plaintiff, the agents and of 'the defendant company, with' the intention to frighten plaintift's horse, commenced. and continued until some distance bethe whistle <!f the enginf)of said trainof cars in a manyond plaintiff, ner most calculated to frighten and render unmanageable horses and other domesticated "aJiUnals; that the manner of blowing said whistle at the time and the place' abGve mentibJied' was not called for nor demanded by any event or c1VClllll/;ltances within' the range of dbfendant company's legitimate business; that when the agents or of defendant company began to near, and until they. were beyond, plaintiff's horse, they began to give, and continued to give, keen and frightful sounds, in quick and rapid succession, by means of the whistle; the immediate effect of which was to frighten the1
TJj:!X:'A8& P"BY. CO. V. SCOVILLE.
,plaintl1f's horse, which he was then llD.d there riding, causing his horse to leap and jump with him in the most violent manner; that, by reason of such violent capering and jumping of his horse, he, the plaintiff, was placed in 'great danger of, being killed lind greatly injured, and was seriously and permanently injured. Plaintiff states that the agents and employes of the delendant company saw the effect of said frighttul ,noise on plaintiff's horEle when the Whistling commenced, and while the, same was going on, and might 'have ceased making the same, and thereby prevented the said injuries, or 'greatly lessened the same, but for no legitimate purpose, willfully, knowingly, negligently, wantonly, and intentionally, and only for the purpose of gratifying a base curiosity and malignant spIrit, they commenced nnd continued blowing said whistle in the most frightful manner of which they 'were capable."
The answer of the railway company is not brought up in the transcript, but it appears from the judgment of the circuit court that a general demurrer to the plaintiff's petition was overruled. Four errors are assigned, but each involves substantially the same question, which the counsel for the railway company, in his printed brief, propounds as follows:
''Is a master responsible for the wlllful, wanton, and malicious acts of his servants, not done tor the ma&1!er's benefit, and not within the scope of the .employment of the servant, and not done by the authority or under the order of the master, but committed willfully, maliciously, and exclusively for the servant's private ends or malice?"
The counsel formulates his answer to his question thus:
"A master is not liable for thE! willful, wanton, malicious, and deliberate 'wrongs committed by the servant, not done on the master's accolmt or to 'further his interest, but done willfully, maliciously, and exclusively for the servant's private ends or malice."
It will be observed that both the question and its answer, as ,propounded by counsel, are somewhat broader in their terms than the question strictly raised by the general demurrer to the pleading -of the plaintiff. The question stated by counsel has exercised judicial inqui['J and deliberation from the earliest times. In the -often-quoted case of McManus v. Crickett, 1 East, 106, decided in the first year of this century, Lord Kenyon said:
"It is a question of very general concern, and has been often canvassed· .but I hope at last it will be at rest. * * * When a servant quits !'light of the object for which he is employed, and without having in view his master's orders, pursues that which his own malice suggests, he no longer 'acts in pursuance of the authority given him. and his master will not be answer-able for such acts."
In the familiar case of Wright v. Wilcox, 19 Wend. 343, Judge 'Cowen, says:
"The line where the master's liability shall terminate must be placed somewhere, and the acquiescence of ·Westminster Hall for many years on the rule we have cited, as laid down by Lord Kenyon, is an evidence of the common law not to be resisted, especially as it will not be found, I imagine, to ·conflict with any general principle of that law."
"Some of the expressions in the opinions of· the judges * * * are open to ,criticism, as not in harmony with the later authorities, and would not probably be regarded as sound, although they are supported by the earlier
In Isaacs v. Railroad Co., 47 N. Y. 122, Judge Allen, in referring to'the case of Hibbard v. Railroad Co., 15 N. Y. 455, says:
llild.by the i elementary autborItles;" citing McManus v. Crickett and tbe authorities th'erelncfted, and Wright'. Wilcox. In Bowev. 12..A1len, 49, it was held that if the act
was done by the servant in the execution of the authority given him by his master, and of performing What the master.:bJid tb,e be responsible, whether the be occasioned by negligence, or by a wanton and reckless purpose to accomplish the master's' business in an unlawful manner. In Wallace v.Navigation Co., 134 Mass. 95, it 'is said:
"The instruction· given treats the defendant as exonerated from responsibiltty it the act done by Its servant was wanton and malicious, and disregards "!'b,ether he wlJ.S acting l1nder the general authority of the defendant" as master, ,and for the purpose of doing its work. There are respectable authorities, certainly. such as Turnpike Co. v. Vanderbilt, 1 Hill, 480, and Wright v.· Wilcox, 19 Wend. 843, which hold that where the acts of a servant are willful the master ·ls not responsible, even if they are done in the performance of his business, because such ·willful acts are held to be a departure from the master's business."
The court then cites Howe v. Newmarch, supra, as holding that the act being willful or malicious is not sufficient to effect a departure from the master's business, and says that case has been since repeatedly recognized, and seems to express the true rule to which it relates. In Rounds v. Railroad Co., 64 N. Y. 129, it is said:
"It Is quite useless to attempt to reconcile all the cases. The discrepancy between them arises, not so much from a difference of opinion as to the rule of, law on the subject, as from fIt.s application to the facts of a given case."
Strong as was Lord Kenyon's hope that he had put the question at' rest, and reluctant as' have been Westminster Hall and the courts of last resort in this country to pass the line he set to terminate the master's liability, an examination of the cases shows that the most enlightened and oonservative courts no longer hold that a willful and malicious purpose is prima facie a departure from the master's business. It will be conceded that, as to passengers on railroads, the line drawn by Lord Kenyon does not now receive the sanction of the COUTtS. It is sometimes contended that this departure results, from the contract between the passenger and the carrier, and the reasoning to support the decisionE! follow the earlier cases often gives emphasis to this feature. No such feature, however, is present in the case of Wallace v. Navigation Co., nor in Howe v. NewmaTch; and while perhaps most of the cases have presented that feature, and counsel and judges have become so familiar with it that it readily occurs to the minds of both, and often finds expression, it will be found that the cases are few wh.ere, in recent years, recovery has been denied strictly on the ground· that, as to persons not passengers, public camel'S are not liable for the willful or malicious acts of their servants in the use of the instruments of carriage committed to their control in the conduct of such carriage or business. There are some such cases.· The most recent of such that I have examined, and one bearing close analogy to the case we have at bat, is Stephenson v. Southern Pac. Co. (Cal.) 29 Pac. 234.
TEXAS &. P. RY. CO. 'V. SCOVILLE.
In the case of Railroad Co. v. Derby, 14 How. 468, it is said:
"Although, among the numerous cases on this subject, some may be found in which the courts have made some nice distinctions, which are rather subtile and astute, as to when the servant may be said to be acting in the employ of his master, yet we find no case which asserts the doctrine that a master is not liable for the acts of a servant· in his employment, when the particular act causing the injury was done in disregard of the general orders or special command of the master. Such a qualification of the maxim respondeat superior would in a measure nullify it. A large proportion of the accidents on railroads are caused by the negligence of the servants or agents of the company. Nothing but the most stringent enforcement of dIscipline, and the most exact and perfect obedience to every rule and order emanating from a superior, can insure safety to life llnd property. The intrusting such a powerful and dangerous engine as a locomotive to one who will not submit to control and render implicit obedience to orders is itself an act of negligence,-the causa causans of the mischief,-while the prOXimate cause, or the ipsa negligentia, which produces it, may truly be said in most cases to be the disobedience of orders. by the servants so· intrusted. If such disobedience could be set up by a railroad company as a defense, When charged with negligence, the remedy of the injured party would in most cases be illusive, discipline would be relaxed, and the danger to the life and limb of ilie traveler greatly enhanced."
Only negligent misconduct was involved in the case just cited; hence, the language of the court is limited to negligence. The party injured was traveling by railroad; and it may be insisted that only such travelers, and by the railroad sought to be charged, were in contemplation of the court. The whole text of the opinion shows that its logic has a larger scope. The injury was not caused by the negligence or other misconduct of the servants engaged in carrying this traveler. His right to recover damages was expressly held to be independent of any contract for carriage. One who has such a contract may found, in part at least, his right to recover on the contract to carry safely. But the maxim of respondeat superior is wholly irrespective of any contract, expressed or implied, or any other relation, between the injured party and the master. In the case of QuIp v. Railroad Co., 17 Kan. 475, it appears that the plaintiff was traveling in his private wagon, drawn by his own team of horses,on the public highway, near a station on the defendant's road, at the time when a train of its cars was standing there on its track; that the servants of the company, carelessly, unnecessarily, and with gross negligence, caused the steam whistle to be blown with great violence, at which the plaintiff's team took fright, ran, and the plaintiff was injured. A demurrer to the petition was sustained by the trial judge, which on appeal was held to be error. In delivering the opinion of the court, Judge Brewer said:
"These acts [sounding the whistle, and causing steam to escapb', etc.], which at times ore legai and necessary, may be done without any.necessity therefor, out of mere heedlessness and negligence, or with a wanton and crimina! intent to do wrong. * * * In this case, while the defendant might, under some circumstances, lawfully, and without subjecting itself to 1'1',. sponsibility for injuries resulting therefrom, cause the whistle to be blown, * * * yet the same act, done without any necessity therefor,-done negligently and heedlesslY,-might render the defendant responsible for all injuries caused thereby. [Oiting] Railway Co. v. Harmon, 47 Ill. 298. 'Sic utere
tuo ut';a1leatllnf notl'laedas' ty. ,of as
tbeeonduct ,and determines, ,
essariiy:and"wantonly let oU: stealD or bl,ewa whistle, sp that,plaintitI's horses ran olf and injured, him, ,defendants, lU"eguilty. Ma.Uce in the engineer need not 'he proved positively,;'but may·,be inferred."
"If ,defendants' engineer"with intent to !:righten pljJintite',s
'! "," -
"If the iJ1;I1ll'Y'was caused by: the willfull.aud malicious act of the agent of the deteD4an1;s, the defendant is not liable."
There,'wlj.$'a,-¢erdict w¥ch was affirmed on appeal.; Ina well·considered opinion, replete with sound reason· ing, that,C<)urt, in conclusion, uses this language: , "Whe, ',,19Yed, In the",d, f his d, " or Whi,I,e in operating en , ¢$., ,and machil1e ' ,oxr their road, if he uses such agencies in an
'it, while' So J 'engaged, he w1llfnlly perverts ,st'cb, agencies, to the puti>ose of
itDlWuet', or so
,as to, OC,'C,llsl!,n lnjn,ry 10 a,nother, or even,
wanton mischief and injury, tb,e company' sliould respond' in damages."
to 'UEI by this writ Of errol' and the were driving it on the !l train of' on .schedule tIme, t? ,sound the 'w,histle frequently, WIth and ,Wne, thesiglial. to be givep. or :(t", injUry hali resulted from, failure to sound it at the tim¢s and,in the way, the company might h,ave l.',,:i,'"e, ',d.l,illble. 1, ",Itli,:nne,cessaiil,Y, . ',and negligen,tly sounded,-", tM"train was standing where it ,should be, ',as, for .,and nqt to start, or the time ,had not arrived for giving the injury had resulted from such act or the company would be liable. As "omissiop;I'fOrsuch was aptly,' said by the supreme court of Dlinois, result to the party injured is the same whether it,is the effector negligence, or from wanton and' willful purpose. The malice pleaded in this case .ls only that. ,which the law ,implies from an act of wanton cruelty. ,We are indanger of reftningtoo much when we attempt to distin· and a .wanton or malicious use of the guish steam whistle, a in charge of the proper servo ,ants of th,ll ,:c()mpany, While, engaged in pulling its regular trains, , moving at schedUle rate, on schedule, time, under direct, constant . If iUs contended that in this act the servallts ,were not in, the master'ssemce, Qecause not employed to blow the 'whistle' wantonly and maliciously to frighten travelers or their :horses, that contention is fully answered by the supreme court of 'Dlinois,--;;-th:a1;i;hese serVants are notemployed tod() any negligent or unlaWiful act, and such a test would exempt the company from .liabilityfr()mall, affirmative aetsof these servants violating the rights of .. , Eailway 00. v.' Harmon, 47nl. 298; Railroad , Co. v. Dickson, 63 Ill. 151. ' It is concede,d that, in case of passen· . gel's receiving injury from the action of the servants of the railroad company, no such distinction between neg'ligent and wanton and
ORAFT.II. NORTHERN PAC. B. CO.
malicious conduct obtains. It is contended that in such cases the corporation is held because of its contract to carry safely. That is one reason, and a cogent one, for holding the cQmpany in such cases, but it is only one of the grounds for so holding. If public policy and safety require that carriers who undertake to convey persons by the powerful,. but dangerous, agency of steam, shall be held to the greatest possible care and diligence, and, whether the consideration for such transportation be pecuniary or otherwise, the personal safety of the passengers should not be left to the sport of chance, or the negligence of carriers' agents, or their wanton malice, the same public policy and safety demand that these allpervading corporations, who 'commit to the custody and use of their servants, in such great numbers, these terrible expressions of the powerful and dangerous agency of steam, shall maintain discipline in their ranks, and, by the utmost care and diligence, protect · the public, not only from its negligent use, but from its wanton or malicious use, by these servants, to the hurt of anyone in the lawful enjoyment of the state's peace. To say the engineer and fireman who have charge of the locomotive on a regular run may, while so running it, so blow the whistle, wantonly and maliciously, that by their manner of blowing it and motive for blowing it, in the indulgence of their love of mischief or other evil motive, they separate themselves, in and by that act, and for that instant, from the company's service, is to refine beyond the line of safety and of sound reason. Public policy and safety require that the use of the steam whistle by those servants who are in charge of the locomotive, and while the locomotive is in motion on its regular or authorized runs, should be held to be done within the scope of the employment of those servants, so far as to charge the company with liability therefor. The rule propounded by the plaintiff in error, so far as it is sound, does not reach the case. In-my opinion the judgment of the circuit court should be affirmed. PARDEE, Circuit Judge, recused. this case was heard by Judges McCORMICK and LOCKE, who differing in opinion as to the law of the case, the judgment of the circuit court is affirmed by a divided court.
CRAFT v. NORTHERN PAC. R. CO. (Circuit Court, D. O:'egon. No. 2,044.
MASTER AND SERVANT-NEGLIGENCE-DEATH OIl' EMPI,OYE-EvIDENCE.
August 13, 181H.)
In an action against a railroad company for the death of plaintiff's intestate, evidence that deceased could have been seen in time to avoid runnIng over him, and that the engineer was probably asleep, is sufficient to sustain a verdIct of negligence.
The fact that a railroad was walking on the track when killed Is not conclusive of his negligence.