
    JOSEPH S. PRIEST, Plaintiff and Respondent, v. THE HUDSON RIVER RAILROAD COMPANY, Defendants and Appellants.
    
      [Decided December 3, 1870.]
    In an action against a railroad corporation for an assault and battery committed by its servant upon the plaintiff, while in discharge of his duties as such servant—held, that the action having been brought more than two years after the cause of action arose, was barred by the statute limiting such actions to two years.
    
      Held, further, that it did not become a different action by being against the master.
    Before Monell, McCunn, and Spencer, JJ.
    This ease was tried before Judge Jones and a jury. The action was brought for personal injury.
    The plaintiff was about entering one of the defendants’ cars at Troy, when the brakeman stationed there to see that passengers had procured tickets before entering the car demanded the plaintiff’s ticket. The plaintiff said he had had no time to procure one. Whereupon the brakeman seized the plaintiff, struck him, and thrust him from the ear.
    The occurrence was in December, 1866. The action was commenced in April, 1869.
    The defendants set up the statute of limitations as a bar.
    The principal allegation in the complaint was, “ that at the time of his entry upon the cars of the defendants, the defendants through their agent violently assaulted the plaintiff and struck him several blows, and seized him by the collar of his coat and jammed and pressed him forcibly against the sides and railing of the car, and threw him down, and trampled and stamped upon him after they had thrown him down, and other outrages, indignities, injuries, and enormities on the plaintiff then and there committed, so that the plaintiff was severely bruised, wounded, and injured thereby, and was made ill and lame and disabled from, attending to his business ever since, and was compelled to employ medical attendance and to expend a large sum of money, to wit, the sum of fifty-seven dollars, in curing himself of said injuries, and has ever since and for a long time will be lame and unable to attend to his business to his damage five thousand dollars.”
    A motion to dismiss the complaint, on the ground that more than two years had elapsed since the cause of action occurred, was made and denied.
    The jury gave the plaintiff a verdict, and the defendants appealed from the judgment and also from an order denying a motion for a new trial.
    
      Mr. Frank Loomis for appellants.
    The motion to dismiss the complaint should have been granted at the close of the case, on the ground that the action was barred by the statute of limitations. It is not disputed that the cause of action (if any) arose on the 24th of December, 1866, and that this action was not commenced until the 8th of April, 1869. By section 74 of title 2 of the Code, it is provided that civil actions can only be commenced within the periods prescribed by that title after the cause of action shall have accrued, but the objection that the action was not commenced in time can only be taken by answer.
    That objection was taken by the answer in this case.
    The time within which this action should have been commenced is prescribed by sec. 91 or by sec. 93.
    The relation of common carrier to a passenger did not exist between the parties, and if it had it could not have changed the nature of the cause-of action set out in the complaint and made out by plaintiff’s evidence, viz., assault and battery (Sanford v. Eighth Av. R. R. Co., 23 N. Y., 343).
    That relation did not exist, because the proof shows, without any conflict, that the defendants refused to receive the plaintiff as a passenger until he should procure a ticket, and that his entry into the car was effected in spite of the resistance of defendants’ agent seeking to enforce a proper regulation.
    
      In this case the entry of the plaintiff was lawfully opposed from the start, and the only question is, are the defendants liable for the unnecessary and undue violence of their agent, which the plaintiff’s evidence tended to establish.
    It is not pretended that such undue violence was expressly authorized in any way by the defendants before this occurrence, or approved by them afterwards, and “ the servant is not impliedly authorized by his master to do that which the master himself being present would not be authorized to do ” (Mali v. Lord, 39 N. Y., 381).
    In Hibbard v. N. Y. and Erie R. R. Co. (15 N. Y., 455), Brown, J., says: “ In removing a passenger from the cars who refuses to pay his fare or exhibit his ticket, the servants of the company are limited to the use of just so much force as may effect that object, and no more. * * * This is the extent of their authority, and if they exceed it, they, and not the company, are responsible for the consequences.”
    This case is cited with approval in Weed v. The Panama R. R. Co. (17 N. Y., 362), and in Mali v. Lord (supra), and the doctrine of the quotation is also approved in Sanford v. Eighth Av. R. R. Co. (supra), Comstock, J., declaring it to be “ good law i/n the abstract,” but not applicable to that case.
    In Hibbard v. N. Y. and Erie R. R. Co. (supra), Comstock, J., says: “ But if he (the conductor) mistook the authority conferred upon him * * * when he committed the trespass * * * it cannot alter the law or change the rights of the parties. Sis own mistake as to the extent of his powers cannot make the railroad company liable for acts not i/n fact authorizedP .
    
    The evidence of the plaintiff showed that the acts of the defendants’ agent, in excess of appropriate force, were wilful and malicious, and for the purposes of the motion the court was limited to a consideration of the plaintiff’s evidence.
    It is well settled that the master is not liable for the wilful and malicious acts of the servant (Weed v. Panama R. R. Co., 7 N. Y., 362; Mali v. Lord, 39 N. Y., p. 381).
    
      And it has been held that a corporation is not liable for such acts even when they were authorized and sanctioned by the president and general agent thereof (Richmond Turnpike Co. v. Vanderbilt, 1 Hill, 480, and 2 Comstock, 479).
    
      Mr. Abraham R. Lawrence for respondent.
    There was no error in the denial of the second motion of the defendant’s counsel for a dismissal of the complaint, on the ground that more tiran two years had elapsed since the cause of action accrued.
    The action was not barred by the statute of limitations. It did not come within the 93d section of the Code upon which the defendant’s counsel relied .as a bar. That section provides that an action for “ libel, slander, assault and battery, or false imprisonment,” shall be commenced within two years after the cause of action shall have accrued (see sections 93 and 74).
    This is not an action for assault and battery as such, but it is an action for a violation of the duty which the defendants owe to every passenger, to carry and convey him safely and without injury from the acts of their servants, employes, and agents.
    The case is embraced by the fifth subdivision of the 91st section of the Code, and could be properly commenced at any time within six years from the 24th day of December, 1866, the day the plaintiff was injured.
    In Meyer v. The Second Av. R. R. Co. (8 Bosworth, p. 305), this court held, in a case in many respects similar to this, that it is to be deemed “a part of the employment of a driver of a city railroad car to put a person off the platform of the car who may be there without right, or contrary to the regulations of the company / and also that it is by the company confided to such driver to determine whether the person is there without right, or contrary to such regulations; and a forcible and malicious ejectment of a passenger from the car by a driver, is an act in the course of his employment as a servant of the compamiy. Held, further, that, where the evidence is conflicting, the question whether the plaintiff was on the car as a passenger and was pushed off, or was there without right and dropped off, is one for the jury and not for the court to determine.”
    Judge Redfield, in the last edition of his Law of Railways (vol. 1, p. 508), says: “ It has long been settled that corporations are liable for torts committed by their agents in discharge of the business of their employment and within the proper range of such employment (see, also, Angell and Ames on Corporations, p. 302, sec. 10, 3d ed).
    How, in this case, Brown, the ticket puncher or agent, had been stationed by the defendants at the cars to prevent persons from entering the cars who had not paid for and received a ticket.
    Hot crediting the story of the plaintiff that he had arrived too late by the Vermont train to enable him to purchase a ticket, he proceeded to attempt the ejection of the plaintiff from the cars, and to inflict the injuries upon the plaintiff which form the subject of this action.
    Could anything be clearer than that it was the duty of the justice who presided at the trial to permit the case to go to the jury upon the points, whether Brown was acting in the course of his employment, and whether he had used unnecessary force or acted wantonly in discharging his duty ?
    If the nonsuit had been granted the court must have set it aside (Meyer v. Second Av. R. R. Co., Bosworth, p. 305).
    The justice properly left it to the jury to say whether Brown used undue force in attempting to enforce the regulation of the defendants in regard to tickets, and also to determine whether the defendants’ instructions to their agents were as the superintendent, Toucey, or the ticket puncher, Brown, had testified.
    The evidence was conflicting on these points, and the determination of the questions was strictly within the province of the jmy-
   By the Court:

Monell, J.

It was conceded on the argument that if this was an action for an assault and battery, it was barred by the statute. The ninety-third section of the Code requires that actions for “libel, slander, assault and battery, or false imprisonment ” shall be commenced within two years. But it is claimed that the case of the plaintiff falls within the fifth subdivision of section 91, of “ any other injury to the person or rights of another not arising on contract, and not hereinafter enumerated.”

The allegations in the complaint are those of an assault and battery committed upon the person of the plaintiff by the defendants’ brakeman. Had the action been against the brakeman it would have been for an assault and battery.

Has it become a different action by being against the employer or principal, under whose authority or direction the injury was done?

Since the abolition of “ forms ” of actions, which includes the denomination of actions, and reducing all to one form under the denomination of a “civil action” (Code, section 69), it has not been easy to interpret such parts of the Code as, very singularly, still preserve, to some extent, the denomination of actions. Assault and battery, libel, and slander are in the main but injuries to the person. Yet we find both in apparently inconsistent attitudes, as we do in the two sections already referred to.

To prevent the statute from attaching, it is necessary to determine that the action is for an injury to the person other than an assault and battery, and that can be done only by making a distinction between an action against the master and an action against the servant.

The old action of trespass was of three kinds: 1. Trespass for injury to the person, accompanied by force (vi et arms), such as assault, battery, or false imprisonment; 2. Trespass for injuries to personal property ; 3. Trespass for injuries to real property.

Trespass on the case, or commonly called “case,” lay for injury-to the person or the personal rights or property not accompanied by force or not immediately injurious.

Under the old form of action, I cannot doubt this would have been trespass, assault and battery, and not trespass on the case.

The liability of the defendants proceeds upon the principle of • agency. Their employó, in performing his assigned duties, committed the assault, and even if it was wilful and accompanied by more than necessary force, it was done in the course of his employment as the servant of the defendants (Meyer v. Second Av. R. R. Co., 8 Bosw., 305).

The distinction between trespass and case, though finely drawn, was strictly preserved until the adoption of our new code • of practice ; and it was not unusual to nonsuit a plaintiff who had mistaken his “ form ” of remedy.

Trespass was the oldest form of action.

Trespass on the case was given later, and in England first by the statute of 13 Edw. I., and was more comprehensive than trespass.

The same strictness with which these forms of action were separated in England may be illustrated by the case of Savignae v. Roome (6 Term R., 125), when the action was “ case ” against the master for wilful injury by the servant. The court arrested the judgment on the ground that the action ought to have been “ trespass.” Afterwards the plaintiff brought trespass, alleging negligence as the cause of the injury (see 2 Bl., 442), and was non-suited, on the ground that the action ought to have been “ case.” And the decisions are reconcilable. Under the forms, for a wilful act “ trespass ” lay, for a negligent act “case ” was the remedy.

In this country, however, and particularly in our State, this rigid strictness was greatly relaxed before the Code, and trespass and case were mostly concurrent remedies.

Assuming, then, as the plaintiff must assume, that the liability of the defendants arises from the act having been done by their servant in the course of his employment, and not negligently or unskilfully (for if it was wilfully done outside of his employment the master would not be liable—Wright v. Wilcox, 19 Wend., 343), then it follows that it was a joint trespass for which a joint or several actions against either could be sustained.

But the action would be for the same cause, for what a master does by his servant he does by himself.

I am of opinion, therefore, that the action in this case was for assault and battery, and for such cause was maintainable against the defendants, all being principals in the trespass.

There may be some difficulty in reconciling the difference in the limitation of actions for personal injuries other than assault, etc., but the legislature could never have intended to include in actions for personal injuries all the actions enumerated in the ninety-third section. But they did intend, I think, to continue, in effect, the distinction which arises from the well-understood meaning of words, and hence to confine to two years’ limitation, whenever it can be seen from the statement of the cause of action that it is for an assault and battery, etc.

I am of opinion, therefore, that the defense ought to have prevailed.

The judgment and order should be reversed, and judgment absolute granted to the defendants, with costs.  