
    The Passenger Railroad Company v. Isaac Young.
    1. The defendant below was a corporation engaged in operating a street railroad. The plaintiff below and his wife having taking soats in one of the defendant's cars as passengers, were, by the orders of the conductor in charge of the car, wrongfully and by force ejected therefrom, whereby they were injured — held :
    
    (I.) That the corporation by placing the conductor in his position invested him with the implied authority of determining who ought to be admitted and who excluded from the oar, and for the wrongful exercise of this authority by the conductor the corporation is liable.
    (2.) A master is responsible, civilly, for the acts of his servant done in the course of his employment; and, when a person is injured thereby, the motive or intention of the servant in doing the act will not operate to discharge the master from liability.
    2. Under the act of March 22, 1849, “ to amend the act relating to juries,” (S. & O. 757,) whenever a necessity arises for summoning talesmen, it is the duty of the court, on application of either party, to issue a venire containing the names of persons to serve as jurors, and, if one writ fails to secure the requisite number, to issue other writs, on like application, until a sufficient number oí jurors is obtained to fill the panel; and when a proper application is overruled and the party compelled to submit his case to jurors selected by the sheriff) it is error for which the judgment will be reversed.
    3. When the court ordered the sheriff to summon talesmen, to which the defendant objected, and immediately, and before the sheriff had taken any steps under the order, applied for a venire under the statute — held, that the application did not come too late.
    Error to the superior court of Cincinnati.
    The defendant in error filed a petition in (he superior court of Cincinnati, of which the following is a copy :
    “ Plaintiff1 says that defendant is a corporation duly incorporated under ihe laws of Ohio ; that it is a common carrier of passengers ; that it has a street railroad track on Fourth street, in said cily, between Broadway and Race streets, in said cily ; that it has street railroad cars running on said track, for lhe carrying of-passengers therein; that it has one of these, cars numbered 5 ; that it has in its employ, on ibis car, a conductor, and that all of (hese statements were equally true of, and applicable lo, defendant on the 2thh day of July, 1804. Plaintiff further says, that on the night of said 2Cth day of July, at 10 o’clock, he and his wife got into said car no. 5, at the corner of Fourth and Sycamore streets, the car, at their request, having stopped to let them get on; that they thus got on said car to ride therein as passengers a few squares ; that they had in their hands and were ready to pay, when called upon, the charge for their transportation, but they were not called upon to payanylhing; that after they were upon the car, the conductor thereof, appointed by and in the employ of defendant, ordered plaintiff to go to the front of the car near the driver,' and to stand on the platform in front of the car : that plaintiff declined to do this, and took a seat in the car with his wife, claiming, at the time, he had a right to do this ; that the .said conductor, then, in a rude manner, ordered the plaintiff to get out of the car. Plaintiff declined to obey this order, and thereupon the said conductor called to the driver to come and assist him (the conductor) to put plaintiff off the car, but the driver did not come; then the conductor ordered the car to move on ; that, as the car got opposite Hammond street, the conductor stopped it and stated to the plaintiff he would go and get a policeman, who would put him (plaintiff) out of the car, to which plaintiff replied that he would obey the order of an officer that the conductor returned to the car without a policeman, and ordered it to move on ; that when the car reached Vine street, or near it, the conductor stopped it and went out for the purpose of getting some rowdies and gamblers to assault plaintiff and drive him from the car; that in a short time the conductor returned with some five of these rowdies and gamblers, who, at the instigation and by the procurement of the conductor, entered the car, and with force and violence assaulted plaintiff, seized him by the throat, dragged him from the car and struck him, wounding and cutting his face ; at the same time they pushed plaintiff’s wife from the car and struck her. Plaintiff says this was done by the procurement and direction of the said conductor, he being present, ordering and assisting the said rowdies and gamblers, and he being, at the same time, in the employ of the defendant as their conductor, and, as such, having control of the car ; that plaintiff was thus, by the defendant, through its conductor, assaulted, beaten and driven from the car as aforesaid. Plaintiff further says that during all this outrage upon him, and during the time he was in the car, ho and his wife were in an orderly and proper manner conducting themselves, being seated upon the seat of the car; that the car was not full, but there was abundant room for many such passengers; that neither plaintiff nor his wife were sitting so as to touch any other person; that they were sitting off by themselves, there being only two other persons seated on the side of the car in which they were sitting.
    “ Defendant therefore says he has been injured and damaged by the defendant, by the above acts, to the amount of $10,000, for which sum he asks judgment.”
    To this petition there was a general demurrer by the railroad company, on the ground that the facts stated did not constitute a cause of action against it.
    The demurrer was overruled, and no further pleading being filed by the company, the case was set for trial for the assessment of damages by a struck jury.
    When the jury was called, twelve of the jurors appeared, but, upon their own application, the court excused seven of them from serving, and directed the plaintiff to fill up the panel from bystanders ; whereupon the counsel for the company moved the court to postpone the trial until another jury could be struck and summoned, in accordance with the statute. But the court overruled the motion ; to which the company excepted. Thereupon the company asked the court to issue a special venire to fill up the panel; and the court ordered one to issue, containing the names of seven persons selected by the court. Upon the return of this venire, there still being vacancies, caused by challenge and exceptions, the court ordered the sheriff to fill up the panel by talesmen; but the company objected thereto, and moved the court to issue another venire; but the court overruled the motion and directed the sheriff to proceed as already directed ; to which the company excepted.
    
      The case haying been submitted to the jury thus impanneled, they returned a verdict for the plaintiff below for $800 ; and the defendant moved for a new trial for the following among other causes:
    First. For irregularity in the proceedings of the court in impanneliug the jury.
    Second. Because the damages are excessive, and appear to have been given under the influence of passion or prejudice.
    The plaintiff having remitted $300 of the verdict, the motion was overruled, and judgment rendered accordingly.
    This judgment was affirmed, on error, by the court in general term, and the object of the present proceeding in error is to reverse these judgments.
    
      E. A. Ferguson for plaintiff in error :
    1. The first question arises on the sufficiency of the petition.
    It is not stated that the assault and battery committed on the plaintiff was in any way connected with the discharge of any of the duties of a conductor. There is no statement of any rule or regulation of the company which made it the duty of conductors to require a particular class of passengers to ride on the front platform. Steamboat Ocean v. Marshall, 12 Ohio St. 379, 382. That it must appear that the act of the servant complained of was done to attain an end directed by the master, is also shown by the case of The Evansville and Crawfordsville R. R. Co. v. Baum, 26 Ind. 71, in which are cited McManus v. Crickett, 1 East, 106 ; Story on Agency, § 308, and cases cited in the note ; Richmond, &c. Co. v. Vanderbilt, 1 Hill, 480; Vanderbilt v. The Richmond Turnpike Co. 2 Comst. 479 ; Wright v. Wilcox, 19 Wend. 343 ; Hibbard v. New York and Erie R. R. Co. 15 N. Y. 455 ; Illinois Central R. R. Co. v. Downey, 18 Ill. 259 ; Tuller v. Voght, 13 Ill. 277 ; Johnson v. Barber, 5 Gillman, 425 ; Gregory v. Piper, 9 B. & C. 591; Croft v. Alison, 4 B. & Ald. 590 ; 7 E. L. & E. 549.
    And upon the same subject see Crocker v. R. R. Co. 24 Conn. 250-265, 6 ; Williams v. Jones, 11 Jurist, N. S. 843 ; Joel v. Morrison, 25 E. C. L. 511.
    
      2. Another question arises upon the action of the court in impanneling the jury. We submit that the first section of the act of March 22, 1849 (8. & C. 757), needs no construction, and will bear but one interpretation, and that is, that, as often as it becomes necessary during the formation of a jury to summon talesmen, the court, as a matter of course, shall, tipon request, select names and issue a venire. There is no discretion about it, and there is no limit to the number of writs. This limit is to be found in the good sense and impartiality of the court in selecting a sufficient number of proper persons, in the first instance. If this is done, it will generally obviate the necessity of cutting down the verdict or granting a new trial. C. P. & A. R. R. Co. v. Stanley, 7 Ohio St. 155.
    
      Slallo & Kittridge, and Dickson & Murdock for defendant in error:
    1. When it is alleged that the plaintiff was by the defendant, through its conductor, assaulted, etc., it imports, under the rule of construction applicable to pleadings under the code, that the defendant authorized and sanctioned these acts of its agent. Hoffman v. Gordon et al, 15 Ohio St. 214.
    2. The allegation that the defendant’s employee was a conductor, and, as such, had control of the defendant’s car, imports that he was charged with all the ordinary duties and authority of a conductor, and, among others, with the power to collect fares, and to eject passengers who refuse to pay their fare, or who are guilty of other improper conduct, from the cars j to see that passengers are provided with seats, and the like. And, in so doing, he may, if it becomes necessary for any good cause to eject a passenger, call others, whether they are regular employees of the company or not, to his assistance, aud what they do in that behalf, under the conductor's direction or orders, is done by him in the discharge of his duties as conductor.
    A conductor in control of a car, who, for an insufficient cause, or with illegal violence, ejects a passenger from the car, renders his employer liable for the damages sustained. 
      Kline v. C. P. R. R. Co. 37 Cal. 400 ; Hagan v. The Providence R. R. Co. 3 R. I. Rep. 88 ; Seymour v. Greenwood, 7 H. and N. 355 ; Hewitt v. Swift et al, 3 Allen, 423 ; The Omnibus Co. v. Limpus, 9 Jurist, N. S. 333 ; The Penn. R. R. Co. v. Vandiver, 42 Penn. St. 365 ; Weeds v. Panama R. R. Co., 5 Duer, 193 ; same case, 17 N. Y. 362 : Moore v. The Fitchburg R. R. Co. 4 Gray, 465 ; The Philadelphia & Reading R. R. Co. v. Derby, 14 Howard U. S. 468; Meyer v. The Av. St. R. R. Co. 8 Bosw. 305.
    3. In respect to the action of the court in impanncling the jury.
    (1) The statute (S. & C. 757) should not be so construed as to entitle a party to two special venires in the same case. It would lead to vexatious delay, and interfere with the dispatch of business.
    (2) The application in the court below for a second venire came too late. The statute expressly provides that “if no application shall be made, the sheriff shall summon tales-men as heretofore.” The plaintiff” in error waited until the court had taken action in the matter.
    (3) Such an irregularity in practice, if it be one, in impauueling a jury, is not a ground of error upon which a judgment will be reversed. See the recent case of Irwin v. Gray, Law R. 1 Com. Pleas, 171, 174.
   White, J.

Two grounds are relied on in this case for reversal: (1) the overruling of the demurrer to the petition ; (2) the overruling of the motion of the defendant for a second venire to fill the panel of the jury.

We are of opinion that the demurrer was properly overruled.

The defendant below was a common carrier of passengers, and the plaintiff and his wife were rightfully seated in one of its cars to be carried as passengers, and were ready and willing to pay their fare. Being thus lawfully in the car, they were, by the procurement and order of the conductor, forcibly ejected therefrom, and thus received the injuries complained of.

The car was under the control of the conductor, who was the only representative of the defendant, with whom the public, desiring to avail themselves of the defendant’s business as a public carrier, could deal.

It was the duty of the defendant to carry the plaintiff and his wife ; and in performing this duty it acted towards them, in common with other passengers, solely through its representative, the conductor. Whatthe latter did or refused, in respect to the carriage of passengers, is, we think, to be regarded as the act of the defendant. The conductor, by being placed in his position, was invested by the defendant with the implied authority of excluding improper persons from the car. This necessarily included the authority of determining who ought to be admitted and who excluded. Seymore v. Greenwood, 7 H. & N. 356.

The master is responsible for the acts of his servant done in the course of his employment, that is, under the express or implied authority of the master. Little Miami Railroad Co. v. Wetmore, 10 Ohio, 131.

In dealing with persons as passengers, whether in admitting or excluding them from the cars, or in assigning them places after they have entered, the conductor in charge is acting in the course or within the scope of his employment. When this is the character of the act, the master is responsible for it civilly, even if it be an act of positive malfeasance or misconduct. Smith’s M. & S. s. p. 151; Little Miami Railroad Co. v. Wetmore, supra; Limpus v. London Genl. Omnibus Co. 1 H. & C. 541.

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. If the nature of the injurious act is such as to make the master liable for its consequences, in the absence of the particular intention, it is not perceived how the presence of such intention can be held to excuse the master.

We do not say that when the nature of the act is such as to render it equivocal whether the act comes within the scope of the servant’s employment or not, the intention with which the act is done is not to be looked to, in determining its true character. What we say is, that when it plainly appears the act of the servant was done in the course of his employment, the wilfulness or wrongful motive of the servant in doing the act, will not excuse the master.

Such, in our opinion, is the character of the case made in the petition.

The second objection is founded on the first section of the “ act to amend the act relating to juries,” passed March 22, 1849 (1 S. & C. Stat. 757), which is as follows :

“ That whenever in any civil suit or criminal prosecution hereafter tried in any court of this State, it shall become necessary to summon a talesman or talesmen, either party may make a summary application to the court to issue a venire, and the court, when so requested, shall, as a matter of course, immediately issue a venire containing the names of so many discreet and suitable persons having the qualifications of electors, as the court shall deem expedient. But if no such application be made, the sheriff shall summon talesmen as heretofore.”

When the struck jury was reduced by excusing seven of them, the plaintiff in error requested the court to issue a venire under this statute; and the court selected seven names, and issued the venire. Upon its return.the jury was again reduced by excuses and challenges, so that it became necessary to summon talesmen, and the court ordered the sheriff to fill up the panel by talesmen ; but the counsel for the company objected thereto, and moved the court to issue another venire; but the court overruled the motion and directed the sheriff to proceed as already directed; to which the company excepted.

Several reasons are urged by the defendant in error against the validity of this objection : (1) that the issuing of a second venire is not required by the statute ; (2) that the application came too late ; and (3) that the disregard of the statute constitutes no ground of error.

It seems to us neither of these reasons can be allowed to prevail. The statute is imperative, and its meaning plain. Whenever there arises a necessity for summoning a talesman or talesmen, and there is the proper application, it is made the duty of the court, as a matter of course, to issue the venire. The delay and inconvenience that would result from issuing several successive writs could generally be obviated by selecting such a number of persons in the first instance as would be likely to furnish the requisite number of qualified jnrors.

Nor does the record show any laches on the part of the plaintiff in error. He objected to the order directing the sheriff to fill the panel, and promptly applied to the court for another venire. His motion was overruled, and the sheriff ordered “to proceed as already directed.” No steps appear to have been taken by the sheriff in summoning talesmen at the time the application was made. That no such steps had been taken is to be inferred from the fact that after the overruling of the application, the order to the sheriff was renewed.

Wo cannot assent to the position that the denial to a party of his right under this statute, is no ground of error. The sole object of the act is to secure to a party jurors selected by the court, when, for any reason, he is unwilling to submit to a selection by the sheriff To refuse his application, when properly made, is to subject him to the very evil from which it was the design of the statute to relieve hi;.». The effect of such refusal is to compel a party to submit the trial of his case to jurors selected by the sheriff, when the law required the selection to be made by the court. The right is as important to the party, as the right of ] s.vemptory challenge, the refusal to allow which, as well a;jits unauthorized allowance, has been held, in this State, to be good grounds of error. C. P. & A. Railroad Co. v. Stanley, 7 Ohio St. 155 ; Mahan et al, v. The Slate, 10 Ohio, 238.

Judgment reversed, and cause remanded for a new trial

Welch, C. J., and Day, McIlvaine and West, JJ,, cos curred.  