Assault.—Authority of Officials.—A dear Kiss.—Arresting Passengers.—Telegraphic Messages.—Interesting Examples.—Who can sue for Mistake.—Fire-fiend’s Pranks.—Train Arrives.—Liability Ceases.—Trunks in Warehouse.—Baggage left at Station.—Dissolving Domestic View.
When the day arrived on which my wife was to return to me, I determined to go and meet her at N., so as to be on the spot to keep an eye on her baggage when she reached the station and avoid further loss and accident.
I bought my ticket and got into the proper car, but just as the train was on the point of starting I asked the porter if I was in the right carriage, he replied, I was not, and must get out; I hesitated, as the train was in motion, so he caught hold of me and violently pulled me out. We fell on the platform and I was considerably hurt, and what was as bad, the cars went on and left me behind. I went in search of the general superintendent of the line, as I was determined to seek redress, for a person who puts another in his place to do a class of acts in his absence necessarily leaves him to determine, according to the circumstances which arise, when an act of that class is to be done; consequently he is answerable for the wrong of the person so intrusted, either in the manner of doing such an act, or in doing such an act under circumstances in which it ought not to have been done; provided that what is done is not done from any caprice of the servant, but in the course of the employment.[710] And in a similar case it was held that the act of the porter, in pulling a man out of the carriage, was an act done within the course of his employment as the company’s servant, and one for which they were therefore responsible.[711]
Railway companies are liable for all the acts of their servants and agents committed in the discharge of their business and their employment, within the range of such employment, whether wilful or negligent.[712] The injured person has to show that his assailant was not only a servant of the company, but that he had authority so to treat him, or that such conduct was subsequently ratified by the company.[713] Where a conductor chancing to be alone in the car with Miss Cracker, cracked some jokes, sat down beside her, put his hand in her muff with her’s (although she objected that there was no room for it), threw his arms around her neck, and kissed her five or six times, while she struggled to escape. Miss C. to have sweet revenge, the kisses being so sour, and not relishing such blandishments and disliking chaps about her lips, or a railway man’s bill stuck in her face, had him arrested and fined $25 for an assault: the company then dismissed the gay Lothario from their employ, and were rather surprised when the injured female sued them and recovered against them $1,000. The court considered the verdict was not excessive, and that a carrier’s contract bound him to protect his passengers against all the world, which in this case had not been done. It was not denied that if such an attack had been made by a stranger and the conductor had neglected to protect Miss C. the company would have been liable, but it was contended that the company was not responsible for the malicious breach of the contract by their servant, the conductor. Ryan, C. J., thought such a contention was much like saying that if one hired a dog to guard sheep against wolves, and the dog slept while a wolf made away with a sheep, the owner of the dog would be liable; but if the dog played wolf, and devoured the sheep himself, the owner would not be liable. Every woman has a right to assume that when she travels in a car she will meet nothing, see nothing, hear nothing, to wound her delicacy, or insult her womanhood.[714]
Some courts have held that a railway company can only act through their officers and servants, and as they, of necessity, commit their trains absolutely to the charge of men of their own appointment, and passengers of necessity commit to them their safety and comfort while journeying, the whole power and authority of the company for that purpose is vested on those officers; and as far as travellers are concerned they are to be considered as the corporation itself; and the latter is as responsible for the acts of the officers in running the train towards the passengers in it, as the officers would be for themselves were they the proprietors of the road and train.[715] Exemplary damages, however, will not be given against a company for the malicious acts of its agent, unless it is shown that the company expressly authorized or confirmed the deeds.[716]
A railway is supposed to have at its stations officers with authority to do all such things as are necessary and expedient for the protection of the company’s property and interests, and for the apprehension of wrong-doers; and where there are persons present who are acting as if they had express authority, it is primâ facie evidence that they had such authority,[717] and the company will be answerable if their officers, in the exercise of their discretion, make a mistake and apprehend an innocent person, or commit an assault through an excess of duty, or do any other act that cannot be justified.[718] And it makes no difference with regard to the responsibility of the company that the servant disobeyed the directions of his superiors, if he was acting within the scope of his employment at the time.[719] But when he does an act which he has no authority to do, the company are not liable;[720] nor are they when he does an act which the company themselves have no authority to do.[721] And thus a seeming paradox arose in one case where a station master arrested a man for not paying the fare of a horse he had with him, and it was held that (as the company itself could not have done so) the company were not liable, though had the zealous official arrested him for not paying his own fare, damages might have been recovered against the company.[722]
Thus ruminating over my wrongs and chewing the bitter cud of hatred and malice, I found my way into the office of the chief official, but as that important functionary was non est, I had to nurse my wrath until some more convenient season.
Just then a friend came up and showed me a telegram which seemed perfectly enigmatical and worthy of the Sphinx of yore, and we thus got speaking concerning such messages (or as they are often rightly called tell-o-crams). He asked me if I had ever noticed the case where a gentleman telegraphed for two hand bouquets, and the operator changed hand into hund and added red, making the order for “Two hundred bouquets.” The florist delighted at the extensive order, procured a quantity of expensive flowers, which the other party of course refused to accept, so the poor flower-man had to sue the company for damages, which he recovered,[723] as well on the ground of breach of contract, as of breach of duty, the telegraph company being public servants.
“I believe that where the company give notice that they will not be responsible except for repeated messages, such a condition will be held good,” I said.
“Yes.[724] There have been several cases showing the damage which the company will have to pay for mistakes in the performance of their duty: in one where a merchant sent the message ‘Stop sewing pedal braid till I see you,’ and it was delivered ‘Keep sewing, etc., etc.,’ and in consequence a large quantity of unfashionable braid was manufactured which the merchant received and disposed of in the best manner. He was held entitled to recover the whole loss sustained in consequence of the error;[725] and it was so held where the message was changed from ‘5,000 sacks of salt,’ into 5,000 casks:[4] the fact that the error was made in the transmission because the message was unintelligible to the operator will not excuse the company, so long as the words were plain.”[726]