
    The New York, Chicago & St. Louis Railroad Co. v. Fieback.
    
      Policeman appointed by governor — At request of railroad company— And salary paid by railroad company — Under ¿Sections 9150 and 9151, General Code — Is public oIEcer with authority from state — Railroad company not liable for his wrongful act, when.
    
    1. A policeman who is appointed and commissioned by the Governor, under Sections 3427 and 3428, Revised Statutes (General Code, Sections 9150 and 9151), although his appointment was upon the application of a railroad company and -his salary is paid by such company, is a public officer, deriving his authority directly from the state; and his acts will be presumed to have been performed in his capacity as such officer, until such presumption is overcome by sufficient evidence.
    2. A railroad company is not liable for the wrongful acts of such officer while acting by virtue of his office, unless such wrongful acts occurred in the performance of an act which was outside of the public duties of a policeman, and which was authorized or ratified by such company.
    (No. 12658
    Decided December 17, 1912.)
    Error to the Circuit Court of Huron county.
    Flenry A. Fieback, the defendant in error, commenced this action by a petition in the court of common pleas of Huron county, alleging that the defendant is a railroad corporation operating a railroad from Buffalo to Chicago and passing through the village of Bellevue in the county of Huron, and that on and prior to March 29, 1908, the defendant was using in' connection with the operation of its railroad a yard located in the said village of Bellevue; that on and prior to said date the defendant had in its employ one John Beattie whose duties were to patrol the said yard and eject or arrest trespassers found therein, in addition to other duties not enumerated; that on the evening of that date plaintiff went to the yard for the purpose of meeting one of the employes of defendant, passing along and by a place that is generally frequented by the public, and while he was in said place he was assaulted and injured by said John Beattie then in the discharge of his duties patrolling said yard for the purpose of finding trespassers and ejecting them, and said plaintiff was injured as hereinafter described; that at the time he did not know who said John Beattie was and did not know that he was in fact an employe of the defendant with authority to inquire into the plaintiff’s business or with authority to eject the plaintiff from the yard of the defendant; that said John Beattie did not have any badge so that plaintiff could see it and did not in any way disclose to plaintiff the authority to eject plaintiff or order him from said yard; that said John Beattie asked him what he was doing there and that he asked Beattie who he was; that Beattie refused to tell him who he was or his authority and without any provocation whatever illegally and violently assaulted plaintiff, striking and wounding him and knocking him to the ground and otherwise ill-treating him, said Beattie claiming at the time that plaintiff was about to steal a ride upon one of the trains of the defendant and that he was trying to prevent the plaintiff from doing so; that plaintiff had no intention of stealing a ride upon the defendant’s train and made no effort to do so; that Beattie used more force than was necessary to prevent the plaintiff from getting aboard the train and more force than was necessary in ejecting him from said yard and that he struck and continued to beat the plaintiff after he got plaintiff to the ground and after he had the plaintiff under his complete control; that in the scuffle that ensued plaintiff’s leg was broken and his ankle sprained. The plaintiff claims damages in the amount of five thousand dollars. Attached to his petition and filed therewith were certain interrogatories.
    The defendant for its answer to the petition admitted that it is a railroad corporation operating a railroad as alleged in the petition and that on and prior to the 29th of March, 1908, it was using in connection with the operation of said railroad a yard located in the village of Bellevue. It also admitted that said John Beattie asked the plaintiff on the occasion alleged in the petition what the plaintiff was doing there, and further answering the defendant denied all and singular the allegations in the petition contained except as herein-before stated to have been expressly admitted. The defendant attaches to its answer due answers to the interrogatories propounded by the plaintiff as follows:
    “No. 1. Was John Beattie on the 29th day of March, 1908, in the employ of said defendant? Answer. John Beattie on the 29th day of March,-1908, was a policeman appointed by the governor of Ohio. His compensation was paid by The New York, Chicago & St. Louis Railroad Company.
    “No. 2. Upon said date was John Beattie’s official title ‘Railroad Detective of the N. Y., C. & St. L. R. R. Co.’? Answer. His official title was watchman or policeman.
    “No. 3. Prior to said date did the defendant pay the salary of said John Beattie, as one of its employes? Answer. Defendant paid the salary of John Beattie as police officer appointed by the governor as aforesaid under the provisions of Section 3431, Revised Statutes of Ohio.
    “No. 4. What were the duties of said John Beattie? Answer. His duties were those prescribed for such officers by the laws of Ohio.
    “No. 5. To what officer or officers did John Beattie report? Answer. To the division superintendent.
    “No. 6. Upon the 29th day of March, 1908, did John Beattie have authority to patrol the yards at Bellevue, to find and eject trespassers therefrom, or to prevent persons from stealing rides on the trains of the defendant? Answer. He had authority conferred upon him as policeman appointed as aforesaid by the governor of Ohio, under the statutes of said state.”
    On the trial in the court of common pleas, and at the close of all the testimony, the defendant moved the court to direct a verdict for the defendant. This motion was overruled and a verdict was returned for the plaintiff. After a motion for a new trial, which was overruled, the court of common pleas rendered judgment upon the verdict, and upon error the circuit court affirmed the judgment of the court of common pleas. This proceeding is to reverse the judgment of the circuit court and of the court of common pleas.
    
      
      Messrs. C. P. & R. D. Wickham and Mr. John H. Clarke, for plaintiff in error.
    The contention of the plaintiff in error is, and was, upon the trial that Beattie, on the occasion in question, was a police officer, an officer of the state, and not the agent of the plaintiff in error; and that being such officer, he was presumed to be acting as such; and that such presumption could only be overcome by the clearest proof that he was acting in what he did, on the occasion in question, as the agent of the plaintiff in error. This we think is shown overwhelmingly by the following authorities: Samuel v. Wanamaker, 107 App. Div., 433, 95 N. Y. Supp., 270; Healey v. Lathrop, 171 Mass., 263, 50 N. E. Rep, 540; Hershey v. O’Neill, 36 Fed. Rep., 168; Section 9151, General Code; 2 Wood on Railroads (2 ed.), 1392; Tolchester Beach Imp. Co. v. Steinmeier, 72 Md., 318, 8 L. R. A., 846; Woodhull v. Mayor, etc., 150 N. Y., 450, 44 N. E. Rep., 1038; Jardine v. Cornell, 50 N. J. L., 486, 14 Atl. Rep., 590; Brill v. Eddy, 115 Mo., 605, 22 S. W. Rep, 489; N. & W. Ry. Co. v. Galliher, 89 Va., 639, 16 S. E. Rep., 935; King v. Illinois Central Ry. Co., 69 Miss., 245, 10 So. Rep, 42; Horton v. Newport, 27 R. I, 283, 1 L. R. A., N. S., 512; Union Depot & Ry. Co. v. Smith, 16 Col, 361, 27 Pac. Rep., 329; Dempsey v. N. Y. C. & H. R. Ry. Co., 146 N. Y., 290, 40 N. E. Rep., 867; Tucker v. Erie Rd. Co., 69 N. J. L., 19, 54 Atl. Rep., 557.
    The. power of a policeman appointed by the governor, as provided in the statute, is. a broad one. It provides that he shall “possess and exercise all the powers and be subject to all the liabilities of policemen of cities of the first class.” People, ex rel., v. Squire, 107 N. Y., 605, 14 N. E. Rep., 824.
    Can it be that a policeman, when he sees one about to commit a trespass upon another’s property, may not interfere to prevent the execution of the wrong? Section 7129, Revised Statutes; Reinhart v. Columbus, 49 Ohio St., 257; State v. Lewis, 50 Ohio St., 179; White v. Kent, 11 Ohio St., 550; Ballard v. State, 43 Ohio St., 340; State v. Hunter, 106 N. Car., 796, 8 L. R. A., 529; Wolf v. State, 19 Ohio St., 248.
    Beattie was presumed to be acting as a public officer, on the occasion in question.
    The defendant had the right to suppose that Beattie was acting as an officer. The defendant knew that he was an officer.
    The facts from which an agency may be implied must be sufficiently distinct as to leave no doubt about the intention of the party appointing. 1 Am. & Eng.. Ency. Law (1 ed.), 344; Fisher v. Moyer, 4 Atl. Rep., 64; Hood v. Adams, 128 Mass., 207; Little Miami Rd. Co. v. Wetmore, 19 Ohio St., 110; Nelson Business College v. Lloyd, 60 Ohio St., 448; Stranahan Bros. Catering Co. v. Coit, 55 Ohio St., 398; Schulte v. Holliday, 54 Mich., 73; B. & O. Rd. Co. v. Colvin, 118 Pa. St., 230, 32 Am. & Eng. Rd. Cases, 160; Warner v. N. Y. C. & H. R. Ry. Co., 44 N. Y., 465; Golden v. Newbrand, 52 Ia., 59; Axtell v. Northern Pac. Ry. Co., 9 Idaho, 392, 74 Pac. Rep., 1075; Thurn 
      v. Williams, 84 N. Y. Supp., 296; Dowell v. Williams, 33 Kans., 319, 6 Pac. Rep., 600.
    Again, in the nature of the case, he cannot act both as an officer and as an agent. No such combination of duties is known to the law.
    There cannot be more than one responsible superior for the same subordinate at the same time and in the same transaction. Blake v. Ferris, 5 N. Y., 48, 55 Am. Dec., 304; Atwood v. C. R. I. & P. Ry. Co., 72 Fed. Rep., 447; Currier v. Henderson, 85 Hun, 300.
    It was the duty of the jury to have resort to the evidence to determine in what capacity Beattie was acting. The plaintiff claimed that he was acting, as the agent of the defendant, while the defendant claimed that he was acting as a policeman. That was the issue; it could be determined only by the evidence. Assuming, for the sake of argument, that he could act in either capacity, would not his intention throw some light upon what he in fact did? If not conclusive, would it not be a circumstance? Ohio Coal Co. v. Davenport, 37 Ohio St., 194; Superintendent, etc., Cortland County v. Herkimer County, 44 N. Y., 22; Seymour v. Wilson, 14 N. Y., 567; Kerrains v. People, 60 N. Y., 221; Lombard v. Oliver, 7 Allen (Mass.), 155; Fisk v. Inhab. of Chester, 8 Gray (Mass.), 506; McKown v. Hunter, 30 N. Y., 625; St. Louis, I. M. & S. Ry. Co. v. Hackett, 58 Ark., 381, 24 S. W. Rep., 881; Lima Ry. Co. v. Little, 67 Ohio St., 91; Whistler v. Cowan, 4 C. C., N. S., 625, 70 Ohio St., 514; Rathbun v. Snow, 123 N. Y., 343, 10 L. R. A., 357.
    
      
      Mr. Jesse Vickery, for defendant in error.
    Beattie was appointed on application of the railroad company. Section 3427, Revised Statutes. His powers and duties are clearly defined by Section 3428, Revised Statutes. He is required to wear a badge when on duty. Section 3430, Revised Statutes.
    Corporations are responsible' for the wrongs committed or authorized by them. It was formerly supposed that those torts which involved the element of evil intent, such as batteries, etc., was ultra vires and the individual wrongs of the agents themselves, but this idea no longer obtains. 1 Cooley on Torts (3 ed.), 198.
    A corporation may be liable for an assault and battery, when its agent, in committing it, was performing some act within the limits of his authority, but wrongfully or with excessive force. 1 Cooley on Torts (3 ed.), 202; Passenger Rd. Co. v. Young, 21 Ohio St., 518; Stranahan Bros. Catering Co. v. Coit, 55 Ohio St., 398; Galveston H. & S. A. Ry. Co. v. Zantsinger, 92 Tex., 365, 71 Am. St. Rep., 859; Rose v. Louisville, N. O. & T. Ry. Co., 70 Miss., 725, 35 Am. St. Rep., 686; St. Louis, I. M. & S. Ry. Co. v. Hackett, 58 Ark., 381, 41 Am. St. Rep., 105; Duggan v. B. & O. Rd. Co., 59 Pa. St., 248, 39 Am. St. Rep., 672; Bess v. Chesapeake & O. Ry. Co., 35 W. Va., 492, 29 Am. St. Rep., 820; Goodloe v. Memphis & Charleston Rd. Co., 107 Ala., 233, 54 Am. St. Rep., 89; Dickson v. Waldron, 135 Ind., 507, 41 Am. St. Rep., 440, 34 N. E. Rep., 506, 35 N. E. Rep., 1.
    
      An employer is liable for the wilful or malicious acts of his servant done in the course of the servant's employment, and it is a question for the jury from a consideration of the evidence to determine whether the servant was acting within the scope of his employment. Blakely v. Greer, 18 C. D., 33; Scioto Valley Trac. Co. v. Craybill, 29 O. C. C., 95; C. H. & D. Ry. Co. v. Klute, 29 O. C. C., 702; Nelson Business College v. Lloyd, 60 Ohio St., 448; Lima Ry. Co. v. Little, 67 Ohio St., 91.
    A railway company is liable for a wrongful assault or arrest made or caused by a detective employed by it in the course of such employment, even though he has also been given police powers by the public authorities at its request. 3 Elliott on Railroads (2 ed.), Sec. 1265; Evansville & T. H. Ry. Co. v. McKee, 99 Ind., 519; Pennsylvania Co. v. Weddle, 100 Ind., 138; Union Depot & Ry. Co. v. Smith, 16 Col., 361, 27 Pac., 329; Harris v. Louisville, N. O. & T. Ry. Co., 35 Fed. Rep., 116; King v. Ill. Cent. Ry. Co., 69 Miss., 245, 10 So. Rep., 42; Eichengreen v. Louisville & N. Rd. Co., 96 Tenn., 229, 34 S. W. Rep., 219.
    Where the act which the officer or agent is authorized to do, is an act which requires the exercise of discretion, the corporation is responsible, if, in so carrying out its business its officer or agent is guilty of malice. Blumenthal v. Chamber of Commerce, 7 W. L. B., 328, 8 Dec. R., 410; Goodloe v. Cincinnati, 4 Ohio, 513; Smith v. Cincinnati, 4 Ohio, 514; Pittsburg, Ft. W. S. C. Rd. Co. v. Slusser, 19 Ohio St., 157.
    
      A false arrest by a detective employed to arrest and prosecute persons unlawfully obstructing track, makes the railroad company liable. Evansville & T. H. Rd. Co. v. McKee, 22 Am. & Eng. Rd. Cas., 366; 14 Am. & Eng. Ency. Law (1 ed.), 822, 823; Healey v. City Passenger Rd. Co., 28 Ohio St., 23; Molloy v. N. Y. C. & H. R. Rd. Co., 10 Daly (N. Y.), 453.
    If a trespass is committed by the servant in defense of the master’s property or possession, the master will be liable for an assault committed by the servant in such employment. Wood’s Master and Servant (2 ed.), Sec. 309; 1 Am. & Eng. Ency. Law (1 ed.), 793, 798; Krulevitz v. Eastern Rd. Co., 140 Mass., 573, 5 N. E. Rep., 500; C. H. & D. Rd. Co. v. Boyer, 10 C. D., 199, 18 C. C., 327; B. & O. Ry. Co. v. Reed, 31 O. C. C., 521.
    Where a person is injured by the act of a servant, done in the course of his employment, we see no good reason why the motive or intention of the servant should operate to discharge the master from liability. Thompson’s Ohio Trial Evidence, Sec. 922; Harbison v. Ilif, 10 Dec., 58, 8 N. P., 392; P. C. & St. L. Ry. Co. v. Shields, 47 Ohio St., 395.
   Davis, C. J.

It is clear to us that the court of common pleas erred in refusing to grant the motion, made at the close of all the testimony, to direct a verdict for the defendant; and that the circuit court erred in affirming the judgment of the court of common pleas. The process by which we arrive at this conclusion is neither long nor intricate. It is as follows.

By Sections 3427 and 3428, Revised Statutes, (General Code, Sections 9150 and 9151), the governor is authorized to appoint and commission, upon the request of a railroad company, such persons as the company may designate, or as many as he may deem proper, to act as policemen for and upon the premises of such railroad or elsewhere, when directly in discharge of their duties for such railroad; and it is therein provided that: “such policemen so appointed and commissioned shall severally possess and exercise all the powers, and be subject to all the liabilities of policemen of cities of the first class, in the several counties in which they are authorized to act while in the discharge of their duties for which they are appointed.”

It appears that John Beattie, for whose conduct the defendant in error seeks to recover damages from the plaintiff in error, was so appointed, commissioned and sworn to perform the duties of a policeman for the plaintiff in error, The New York, Chicago & St. Louis Ry. Co., and was at the time of the acts complained of, authorized so to act. So that, although he was appointed at the request of the railroad company and although his salary was paid by it, he was in fact, at the time of the plaintiff’s injury, a public officer; and by the express terms of Section 3428, Revised Statutes (General Code, Section 9151), the railroad company would not be liable for his acts if a municipal corporation would not be liable. Police officers, by whomever appointed or elected are generally regarded as public or state officers deriving their authority from the sovereignty, for the purpose of enforcing the observance of the law; and for their malfeasance, misfeasance or non-feasance in office the city is not responsible. 20 Am. & Eng. Ency. Law (2 ed.), 1204. But where the act complained of is outside of the public duties of a policeman, and were authorized or ratified by the corporation, the latter would be liable. It follows, therefore, that the only competent issue tendered by the defendant in error in his petition below, is whether the act of the policeman was outside of his public functions and was authorized by the railroad company.

We start then with the clear presumption of the law that the policeman was acting officially and in the line of his duty. Jardine v. Cornell, 50 N. J. L., 486; Tucker v. Erie Ry. Co., 69 N. J. L., 19; Tolchester Beach Improvement Co. v. Steinmeier, 72 Md., 313; Brill v. Eddy, 115 Mo., 596, 605; Foster v. Grand Rapids Ry. Co., 140 Mich., 689. The foundation of this rule is that one who is invested with authority by the sovereign, commissioned and sworn to faithfully perform the duties pertaining to such commission, must necessarily be supposed to be acting in conformity thereto; and anyone who claims that the officer was not so acting must show affirmatively that such was the case. In the present case, there is no testimony whatever that any person competent to act for the railroad company, authorized or directed Beattie to in any way interfere with the defendant in error; and the circumstances as well as the testimony of all the witnesses are consistent with Beattie’s own claim that he was acting as an officer of the law. A train was coming in and the defendant in error was pointed out to Beattie by a person not an officer or employe of the company as being in a position in the company’s yards to excite suspicion. He went to the defendant in error and asked him what he was doing there. The answer was evasive and words followed which quickly ended in a combat, in which the defendant in error had his leg broken, by falling' or being thrown upon the railroad track. Beattie wore a policeman’s badge, but it was pinned on his vest and his coat and overcoat were buttoned over it at the time of the fracas. He also had a policeman’s club or “billy” and a revolver, but these were not in view. He was then and had been for some time assigned for duty as a detective or railroad policeman in the Bellevue yards and reported to the chief of the railroad police or division superintendent. There is no proof that he performed any other duties there. This is the sum of all the testimony, which we have read from beginning to end; and it is in no respect incon- ’ sistent with the officer’s claim, and the legal presumption, that he was attempting in the line of his duty as a policeman to arrest the defendant in error, or to eject him from the company’s grounds. So the presumption prevails. If there was any excess of force used or any improper conduct by the officer, the railroad company is not liable for it. Tolchester Beach Improvement Co. v. Steinmeier, supra; Tucker v. Erie Ry. Co., supra; St. Louis, I. M. & S. Ry. Co. v. Hackett, 58 Ark., 381; Healey v. Lathrop, 171 Mass., 263; Woodhull v. The Mayor, etc., 150 N. Y., 450; Samuel v. Wanamaker, 95 N. Y. Supp., 270, 107 App. Div., 433.

Beattie testifies, and perhaps the weight of the evidence supports him in this, that he told the defendant in error that he was an officer of the law; but inasmuch as the defendant in error denies it, we have not allowed that matter to enter into our consideration of the case.

The motion to direct a verdict for the company should have been granted. The judgment of the circuit court, and the judgment of the court of common pleas, are reversed and judgment given in this court for plaintiff in error.

Reversed.

Spear, Shauck, Johnson, Donahue and O’Hara, JJ., concur.  