Houston v. Minneapolis, St. Paul, & Sault Ste. Marie Railway Co.

Fisk, J. This action was tried in the county court of Ward county before a jury, and resulted in a verdict in plaintiff’s favor for the sum of $750 on October 31, 1911. Thereafter and on December 28th, judgment was duly rendered on such verdict. On December 4th counsel for defendant served upon plaintiff’s attorneys a notice that on December 12th they would make a motion for judgment in favor of defendant notwithstanding the verdict and for an order granting a new trial, in the event such motion for judgment should be denied. Such motion designated but one ground thereof, to wit, insufficiency of the evidence to justify the verdict. On January 12, 1912, the parties appeared before the court, whereupon counsel for defendant moved the court for judgment notwithstanding the verdict, without incorporating therewith a motion for a new trial. Objections were filed by plaintiff’s counsel to the hearing of such motion, upon the ground that it came — 473 — too late, and that no notice of intention to move for a new trial was ever served. Thereupon the trial judge made an order denying the motion, and the defendant attempts to appeal from such order, as well as from the judgment. The order, if treated merely as an order denying the motion for judgment notwithstanding the verdict, is nonappealable, as we have recently held in Turner v. Crumpton, ante, 134, 141 N. W. 209. It is unnecessary, however, to waste any time upon such question of practice, for the only proposition attempted to be urged by appellant by its motion is raised on the appeal from the judgment; namely, that the court erred in denying defendant’s motion for a directed verdict at the close of the testimony. If the trial court should have directed a verdict, this court has the power to do so on the appeal from the judgment, even though no motion was made in the lower court for judgment notwithstanding the verdict or for a new trial. Such appears to be the plain provision of § 7044, Rev. Codes 1905. This brings us to a consideration of the appeal from the judgment. Respondent has made a motion in this court to strike out the statement of the case for failure to comply with rule 7 of this court, which requires the testimony to be reduced to narrative form. While this court will ordinarily require a strict compliance with such rule, as held in numerous cases, yet, owing to the exceptionally short record, the testimony in which comprises but a few pages, we have concluded not to enforce such strict compliance in the case at bar. The only testimony introduced is that of the plaintiff, defendant offering no testimony whatever, and the only specifications of error incorporated in the settled statement are predicated upon the rulings of the court in denying defendant’s motions for a directed verdict. Plaintiff testifies in substance that on July 22, 1911, he was a passenger on one of defendant’s passenger trains en route from Burlington to Minot, having purchased a ticket at Burlington entitling him to ride on such train to Minot. During such trip one Ole Johnson, also a passenger on said train, approached plaintiff and offered him a drink, which plaintiff declined, whereupon the conductor of the train jumped up and grabbed the bottle from Johnson, and kept it, saying at the same time: “When I get to Minot I will have you fellows arrested.” He also testified that upon the arrival of the train at Minot he and his companions alighted from the train to the depot platform, but saw no — 474 — officer there at that time. A few minutes thereafter an officer arrived, and the conductor pointed to plaintiff and two companions saying, “That is them there,” whereupon the officer said to plaintiff and such companions, “Come with me,” and they were arrested and taken to jail. While the officer was taking these parties away from the depot, said conductor, holding the bottle in his hand, said, “Here is enough to convict the boys.” Upon arrival at the jail, plaintiff and his companions were incarcerated therein, where they were confined from about 1 o’clock p. m. until about 7 p. m., when they were released. On cross-examination plaintiff testified that it was about'five minutes, as near as he could judge, from the time he left the train until the arrest was made, and that he had no business which detained him or kept him waiting on the depot platform during such interval of five minutes, and the only reason he gave for remaining there was that he and his companions were “just talking back and forth is all I know.” The cross-examination of plaintiff discloses that the bottle in question contained whisky. The foregoing is all the testimony which is material to the question involved. At the close of such testimony the defendant’s counsel moved for a directed verdict upon the ground “that the testimony on the part of the plaintiff is wholly insufficient to establish a cause of action, the issue as alleged in the complaint, or otherwise; it appearing from the testimony that no officer or employee in charge of the train or in the employ of the defendant arrested, in the course of the discharge of any duty or obligation of his to the company, the plaintiff in this case, or that he arrested him at all. The complaint charges that the defendant, through its servants and employees on the occasion described, did wrongfully assault and arrest the plaintiff, and deprive him of his liberty, which allegation is wholly unsupported by any evidence so far offered or by any evidence offered by the plaintiff.” Such motion was denied and an exception taken, and this ruling is the sole error specified in the settled statement of the case. While one of the assignments of error in appellant’s brief is that the court erred in overruling appellant’s motion for judgment notwithstanding the verdict, such assignment is not properly before us, for reasons heretofore stated. — 475 — Was it error to deny defendant’s motion for a directed verdict ? This is the sole question in the case. Counsel for appellant argue that the proof discloses that, prior to the arrest, the relation, of carrier and passenger between defendant and plaintiff had ceased, and consequently that defendant owed plaintiff no duty which such a relation might impose upon it. That any act of the conductor performed towards or connected with such arrest five minutes after plaintiff alighted from the train, and while he was on the depot platform, was without the scope of his duty as defendant’s servant, and consequently defendant is in no manner accountable therefor. They, of course, concede the general rule of liability of a master for the wrongful acts of its servants, when performed within the scope of such servants’ employment. The crucial question .on this appeal, therefore,.is whether defendant is responsible for the acts of its conductor*, of which plaintiff complains. The appellant contends that no such responsibility exists, if plaintiff, at the time of the arrest, had ceased to be a passenger; and, further, that the right of action alleged is founded upon such relation, and no recovery can be sustained if such relation had ceased at the time of the acts complained of. While, on the contrary, defendant contends that such is not a necessary or proper test of liability, and that defendant is liable under the undisputed facts, even though the court should hold, as a matter of law, that the relation of carrier and passenger had ceased at the time of such wrongful arrest. As we view the matter, it is not material whether at the time of the arrest the status of plaintiff as a passenger had ceased, or had not ceased; for under the plaintiff’s own version of the facts the company on no theory can be held liable for such arrest, for the obvious reason that such conductor, in doing what he did, was not acting for the company, hut was discharging a duty imposed upon him by law. The acts complained of were not done within the real or apparent scope of the master’s business, and consequently the latter cannot be held responsible for such acts under any rule known to the law. Instead of acting or assuming to act for the company, such conductor was manifestly attempting to discharge what he deemed a duty imposed upon him by chapter 228, Laws 1911. Section 1 of this law makes it a crime to publicly drink or offer to another any intoxicating beverage upon a — 476 — train carrying passengers in this state, with certain enumerated exceptions. Section 2 confers police powers upon every passenger conductor, and makes it his duty, while thus engaged, to arrest any person who shall, in his presence or to his knowledge, violate the provisions of § 1, and to deliver such person to any policeman, constable, or other peace officer, to be by him informed against and prosecuted. Is it possible that the common carrier can be held responsible for the faithful and proper discharge of such statutory duty thus imposed upon its servant ? We think not, nor has the legislature by such act attempted to impose any such burden upon it. While acting in obedience to such statute, it cannot be said that the conductor is acting for the railway company at all. Such company has no control over him whatsoever while he is in the discharge of the duty thus imposed upon him by the sovereign power of the state. The authorities relied on by respondent are clearly distinguishable from the case at bar. They are cases where the servant, in doing the act complained of, was acting for the master, either within the actual or implied scope of his employment, or such acts were violative of the implied contract of the master for the protection of its passengers. In announcing the foregoing conclusion, we are not unmindful of the numerous authorities holding a railway company liable for the acts of its servants committed within the scope of their authority, or even for acts which are done not for the benefit of the master or within the scope of authority, provided such acts are violative of the master’s implied contract of protection and proper treatment of its passengers at the hands of its servants, which the courts generally hold is a part of the contract of carriage. The latter liability did not exist at common law, the rule formerly being that the master was not liable for the torts of a servant committed wilfully, and not for the benefit of the master. This added responsibility of the carrier is not unjust or intrinsically harsh, for the carrier has a measure of protection by using due care in the selection of its servants. A very different situation, however, is presented in the case at bar. Chapter 228, Laws 1911, creates a new offense, a new malum prohibitum as above stated, which makes it unlawful to publicly drink or offer another an intoxicating beverage upon a railway train. It imposes no duty upon the railway company, but confers police power upon every conductor, and imposes — 477 — a specific duty upon him with reference to the enforcement of such law. In discharging such duty the conductor does so, not in order to protect the other passengers, nor to carry out the master’s implied contract to protect such passengers, nor in violation of the protection which the company owes to the particular passenger, but, as before stated, at the behest and command of the .sovereign state. He acts for the state, not the railway company, and the former’s interests alone are controlling of his acts. The legislature, in its wisdom, saw fit to place the duty to enforce this law, not upon the railway companies, but upon their conductors. Their responsibility and duty in such cases is not to their companies, but to the state. It logically follows that the companies have no voice in the matter; and even though deemed detrimental to their interest, the enforcement of said statute cannot in any legal manner be controlled by them. Manifestly, therefore, the framers of the statute in- question never intended to impose a liability on the railway companies in such cases; it being clearly their intention that, in the enforcement of such statute, the conductor should be deemed an officer of the state, and not of the company. There is no difference between this case and one where a constable or sheriff makes an arrest upon a railway train or at a railway station. In such a case it is clear that the railway company would not be liable for an abuse or an improper exercise of such official duty. It is very doubtful, indeed, whether the carrier could be legally subjected to such responsibility; but it is not necessary for us to determine such question, as by such statute the legislature has not attempted to do this. It would be different, as held in numerous eases, if the conductor had been vested merely with police powers to be exercised at his own or the company’s behest, and for the benefit of the company. See 3 Elliott, Railroads, § 1265, and cases cited; Gillingham v. Ohio River R. Co. 35 W. Va. 588, 14 L.R.A. 798, 29 Am. St. Rep. 827, 14 S. E. 243 ; Dickson v. Waldron, 135 Ind. 507, 24 L.R.A. 483, 488, 41 Am. St. Rep. 440, 34 N. E. 506, 35 N. E. 1. But it is held that where he may act in either one of two capacities, — as a policeman for the state or as a servant for the master, — the presumption would be that he acted in the former capacity. Jardine v. Cornell, 50 N. J. L. 485, 14 Atl. 590 ; Foster v. Grand Rapids R. Co. 140 Mich. 689, 104 N. W. 380, 18 Am. Neg. — 478 — Eep. 479. See also Tolchester Beach Improv. Co. v. Steinmeier, 72 Md. 313, 8 L.R.A. 846, 20 Atl. 188. In Jardine v. Cornell, snpra, we quote the following: “The act of the police in removing the plaintiff from the train to the station house was a continuous one; it was their duty as officers of the law to do so, and it was not within the scope of their employment in enforcing the regulations of the railroad company. Upon an undisputed state of the facts the question presented is for the court. Where a police officer takes a disorderly person from the scene of his disorder to the police station, it will be presumed to have been done in his official character, unless such presumption is repugnant to some rule of law or is rebutted by the facts of the case.” Counsel for respondent calls our attention to § 9755 of the Eevised Codes, which makes railroad companies responsible for the acts of its conductors or other persons employed by it, while acting as peace officers, under the provisions of article 8 of chapter 6 of the Code of Criminal Procedure. Such article authorizes railway companies, at their own expense, to employ persons as peace officers for the protection of their property or the preservation of order on their premises, etc., and it is perfectly proper that the legislature should have imposed upon the companies the responsibility for the acts of such peace officers. Manifestly, however, the provisions of article 8, aforesaid, can have no application to the case at bar, for reasons which, we think, are made plain in a prior portion of this opinion. We are agreed that under the undisputed facts as narrated by the plaintiff the recovery cannot be upheld, and that it was the duty of the court to have granted defendant’s motion for a directed verdict. The judgment is reversed, and the lower court will vacate the same and enter a judgment dismissing the action.