Heggen v. Ft. Dodge, Des Moines & Southern Railroad , 150 Iowa 313 ( 1911 )

McClain, J.-

-There is no contention on the part of appellant that the case was not properly submitted to the jury or that the verdict was not supported by the evidence, unless there was' a failure of the court to properly leave it to the jury to determine whether the conductor in assaulting and mistreating the passenger was acting as an official agent or representative of the state in -such manner and to such extent as that the defendant was not liable for what was done.

The appellant relies wholly upon the provisions of Acts Thirty-third General Assembly, chapter 141 (1909), which are as follows:

Section 1. Any person who shall drink intoxicating liquor as a beverage on any passenger railway car or street car in service or who shall use profane or indecent language on such railway or street ear shall be guilty of a misdemeanor.

Section 2. Any conductor ,of a railway train or street car carrying passengers shall have the right to refuse to permit any person not in the custody of an officer, to enter any passenger car on his train or street car in his charge who shall be in a- state of intoxication; and shall have the further right to eject from his train’at any station or from his street car at any regular stop any person found in a state of intoxication or drinking intoxicating liquors as a beverage, or using profane or indecent language on any passenger car of his train or any street car under his charge and for that purpose may call to his aid any employee of the railway or street car company.

1. Railroads: assault or mistreatment of passengers: liability of company. The first section of this' statute alone is immaterial for present purposes, for it is plain that the commission of a misdemeanor by a passenger would not justify or excuse the defendant for the act of its conductor in as-saulting or mistreating him, and that, while was proper for the conductor to use all reasonable means at his command to preserve order and protect other passengers from inconvenience or annoyance, even to the extent of ejecting an intoxicated person from the car, it was his duty to use no more force than reasonably necessary to effectuate that object. On this subject the court fully instructed the jury, and no complaint as, to the instructions given is now made.

But it is contended that under the second section of the Act the conductor was charged with a duty in behalf of the state, and that in performing this duty he was not the agent or servant of the defendant, but a public officer for whose acts and conduct the defendant was not responsible. It is to be noticed, however, that the statute does not impose any duty upon a conductor, nor does it declare that in exercising any authority which the statute purports to give him he is a public officer. It purports to authorize acts by a conductor which may be somewhat broader in scope than those which he would be justified in exercising as the agent or servant of a common carrier of passengers; but it does not purport to relieve the railroad company of any liability on account of his misconduct in attempting to exercise his authority. Of course, if the act of the conductor is one authorized by statute, although it is beyond the scope of the acts which a conductor would otherwise be authorized to commit, then the defendant is not liable; but if the act of the conductor is unauthorized by law — that is, not authorized by the statute nor within the rightful scope of his powers and duties as a conductor of a passenger train — then the defendant must necessarily be liable for his conduct to the same extent as though no such statute had been passed.

2. Same. Now the authority of the conductor under the statute is to prevent’ a passenger entering the car who is in a state of intoxication and to eject from the car at any station or regular stop a person found in a state of in- . ...... . . toxication or drinking intoxicating liquors as a beverage or using profane and indecent language. It is not pretended that the violence used by the conductor of which plaintiff complains was in preventing him from entering the car nor in ejecting him from such car at a station or regular stop. The difficulty between the plaintiff and the conductor related to the conduct and behavior of the passenger while in the car and being transported. With respect to this matter the conductor acted solely as the servant and agent of the defendant, and the jury was properly instructed as to the liability of the defendant with reference to its conductor’s acts. ' .

. . That there, was no issue proper . for presentation to the jury as to whether the conductor was acting as a public servant and not as conductor in committing the alleged wrongs complained of is made apparent by the contention of appellant as to the errors which the court is charged to have committed in the trial of the case.

It is first contended that the court erred in refusing an instruction to the jury to the effect that, if plaintiff was guilty of using indecent or abusive language or was under the influence of intoxicating liquors and was boisterous and annoying to passengers, then the conductor was vested under the law of Iowa with full power and authority to suppress such acts and conduct, and in the- exercise of such authority the conductor was alone responsible for his acts while so acting, and defendant was not in any way liable for such acts. There is nothing in the statute to authorize any such instruction. The duty of suppressing misconduct of a passenger is one resting upon the conductor as a servant or agent of the carrier and is not created or enlarged by the statute above quoted. The other error complained- of is that the court failed to submit to the jury any issue arising out of the allegation in defendant’s answer that at the time of the alleged assault and misconduct plaintiff was in an intoxicated condition, had a bottle of whisky in his pocket over which there was loud, boisterous, abusive, and annoying controversy with other passengers on the car, etc. It is plain that this allegation, if proven, gave rise to no occasion provided for by the statute for the exercise of a public authority on the part of the conductor.

Counsel for appellant cites authorities in support of the proposition that, when a special peace officer is by authority of law duly appointed to preserve order or protect the persons or property in the cars or on the premises of a carrier or in places of public amusement, such officer, although employed and paid by the carrier or by the owner of the place of amusement, is still a public officer, and, so far as Ms acts are those of a public officer rather than as an employee, his-employer is not liable for his misconduct; it being for the jury to determine as a matter of fact whether in the conduct complained of he was acting as a public officer or as employee only. As bearing on this question, see Healey v. Lothrop, 171 Mass. 263 (50 N. E. 540); Tolchester Beach Improvement Co. v. Steinmeier, 72 Md. 313 (20 Atl. 188, 8 L. R. A. 846) ; Cordner v. Boston & M. R. Co., 72 N. H. 413 (57 Atl. 234); Tucker v. Erie R. Co., 69 N. J. Law, 19 (54 Atl. 557); Sharp v. Erie R. Co., 184 N. Y. 100 (76 N. E. 923); Deck v. Baltimore & O. B. Co., 100 Md. 168 (59 Atl. 650, 108 Am. St. Rep. 399); Dickson v. Waldron, 135 Ind. 507 (34 N. E. 506, 35 N. E. 1, 24 L. R. A. 483, 488, 41 Am. St. Rep. 440) ; McKain v. Baltimore & O. R. Co., 65 W. Va. 233 (64 S. E. 18, 23 L. R. A. (N. S.) 289, 131 Am. St. Rep. 964), and cases there cited in note.

We need not discuss these cases, for we hare already pointed out that they are not pertinent to the ease now before us.

Finding no error in the record, the judgment is affirmed.