John D. Jackson, Respondent, v. The Second Avenue Railroad Company, Appellant

John D. Jackson, Respondent, v. The Second Avenue Railroad Company, Appellant. Where the conductor upon a railroad has been instructed by the company to demand of every passenger a certain fare, and to remove from the car any passenger refusing to pay the same; if the company has not the right to demand the required fare, it is liable for any force used upon the person of a passenger in an attempt to execute such order; if it has the right to the fare, and the conductor, acting in the performance of his duty, exceeds, through zeal or impetuosity of temper, the degree of force necessary and proper to accomplish the purpose of removal, and injury results, the company is also liable. The question whether the act occasioning the injury was willful and malicious, or was mistakenly conceived to be a necessary use of force to effect the removal, is a question of fact for a jury. (Argued December 22, 1871; decided January 23, 1872.) Appeal from order of the General Term of the Supreme Court in the first judicial department, reversing a judgment entered upon decision of the court at circuit dismissing plaintiff’s complaint, and granting a new trial. This is an action of assault and battery brought against the defendants, the railroad company and one John Doe, who is stated in the title to be thus named because his real name is not known, the conductor being intended. The plaintiff, in the fall of 1864, got into one of the company’s cars at Peck slip, intending to get out at Fifty-ninth street. The fare to Forty-second street was jvoe cents', above that, by the charter, it was ten cents. Plaintiff tendered five cents fare. The conductor asked him six cents. Plaintiff asked for an explanation and the conductor told him the fare had been raised to six cents, and pointed out to him a placard to that effect, posted in the car. Plaintiff immediately “ told him he was not going to pay him six cents, that his fare was five cents and that was all he could get.’.’ The conductor caught him around the waist and stopped the car to put him out. Plaintiff refused to leave the car, and resisted. Conductor told him he would put him out if he did not pay the other penny. This he refused to do, and conductor collared him. Plaintiff seized the handle of the door to prevent his being put out. The conductor then struck him one blow on the nose, which abrased the skin and caused it to bleed. The conductor proceeded no further m his attempt to eject him, and the plaintiff quietly rode to Fifty-ninth street, where he got out. At the close of plaintiff’s evidence defendant’s counsel moved to dismiss the complaint on the ground that the principal is not liable for the tort, committed by an agent or servant, except it occurs in the immediate discharge of duty by the servant, or is authorized. The motion was granted, to which plaintiff’s counsel excepted. Samuel Hand for appellant. The principal not liable for the tort or negligence of the agent in matters beyond the scope of the agency, unless authorized or adopted. (Story’s Ag., § 456; Middleton v. Fowler, Salk., 282 ; McManus v. Crickett, 1 East, 106.) A railroad company only liable when the conductor, in discharging his duty, does it negligently and injury ensues. (Weed v. P. R. R. Co., 17 N. Y., 362; Sanford v. Eighth Ave. R. R., 23 N. Y., 343; Myer v. Second Ave. R. R., 8 Bos., 305; Hibbard v. N. Y. and E. R. R. Co., 15 N. Y., 155.) H. Morrison for respondent. If act was willful, defendant is liable by statute laws of 1824, p. 347, § 1; 2 R. S., p. 165, § 7, 4th ed.) Irrespective of the statute, the defendant is liable, (Higgins v. The Watervliet Turnpike and R. R. Co., Court of Appeals, not reported; Weed v. The Panama R. R. Co., 17 N. Y. R., 363; Sanford Adm. v. The Eighth Avenue R. R. Co., 23 N. Y. R., 343.) [MAJORITY — Folger, J.] Folger, J. If it be assumed as I think that it may be, that the defendants’ conductor had been instructed by them to demand of every passenger six cents as fare, and that he was also instructed and authorized by them to remove from the car any passenger who refused to pay that sum, then in this case the conductor was acting in the line of his duty to them, and of his authority from them, in attempting to remove the plaintiff from the car. The six cents fare had been demanded of the plaintiff; he had refused to pay it; he had been told that he would be removed unless he paid it, and he still refused. The conductor then seized him, and attempted' his removal, and while thus engaged struck the blow more particularly complained of. It cannot be doubted but that the defendants are so far responsible for the act of the conductor their agent that if they had not the right to demand the six cents fare, and hence had not the right to remove any passenger from their car for not paying that sum, they would have been liable for any force used by their agent upon the person of such passenger, though confined strictly within a degree necessary to effect such removal, and used solely for that purpose and with that intent. (See Ramsden v. B. and A. R. R. Co., 104 Mass., 117.) And for the reason that he was in their business, using a physical force upon another which he had no right to exert, and which they had no right to instruct and authorize him to exert, and any force was an excess of right. Does it not follow, that where they have the right to instruct and authorize to the use of force, and their agent acting in the pursuit of his duty to them, and under authority which they have given, exceeds through zeal or impetuosity of temper, the degree of force necessary and proper to accomplish the purpose, and injury and damage ensue, that they must respond ? So we have held in Higgins v. The Watervliet T. and R. Co. (46 N. Y., 23.) But it is said that the act of the conductor in striking the plaintiff a blow in his face was willful and malicious; that it was not done by him because he mistakenly conceived it a necessary use of force to effect the removal of the plaintiff, but as a wanton act of rage and passion. This it appears to us, was a question to be decided. And conceding the law to be clear that the defendant would not have been liable for the act of the conductor if it was willful and malicious on his part, still it was a question of fact. It appears from the printed case that the motion to dismiss the complaint was made on the ground, that the principal is not liable for the tort committed by the agent or servant, except it occurs in the immediate discharge of duty by the servant, or is authorized. As the motion was granted, it must have been assumed that the testimony showed that the act of the conductor was a tort, which did not occur in the immediate discharge of his duty, and was not authorized. But the testimony is not so clear as that the court could pass upon it without committing it to the jury for their consideration. From the testimony as it appears to us in print we could not so determine. On the contrary, the act of the conductor presents itself to us as one done without malice or ill feeling toward the plaintiff, but deemed by him necessary to effect the purpose with which he thought himself charged in the proper performance of his duty. It should have been left to the jury upon all the testimony, and with proper instructions. There was error in holding otherwise. As the defendant has given stipulation for judgment absolute, there must be judgment final for the respondents, with costs. All concur. Judgment accordingly.