On Petition for Rehearing.
Hackney, C. J.The petition for a rehearing has been supported by a very earnest and elaborate brief by appellee’s counsel. Much has been said of this court’s misconception of the theory of the case as outlined by the complaint, and, since the proper view of *226every question in the case must depend upon the true theory of the case, we have again studied carefully the complaint, interrogatories and original briefs, in connection with the present brief. But one of two theories was possible, namely: the brakeman had express authority to eject trespassers or he had implied authority to do so, if the appellee could recover. Counsel does not claim to have embodied both of these theories in his complaint, and, if he did, it would not support him upon the rule that a cause of action must proceed upon some single definite theory. We regarded it then,.as we now regard it, to the credit of the counsel who drew the complaint, that he placed it upon the theory of an express authority, since it is, without doubt, we think, the law that such authority as to freight brakeman will not be implied from the general nature of his employment. In this conclusion counsel concurs with us. He quotes from Wood on Rys., cited by us, as follows: “The conductor of a train, being in charge of it, and having full control of it for the time, represents the company as to any matter connected with its management and control, and for an act done by him in the line of his duty, as by the ejection of a trespasser from the train, etc., the company would be unquestionably liable; but for the act of a brakeman of the train, who, without the directions of the conductor, should remove a trespasser from the train, the company would not be liable, unless express authority to do an act, to which the act complained of is incident, is shown, because the act is not one which comes within the scope of his duty.” Counsel then says: “I have no contention as to that.”
In further discussion of the theory of the case, counsel says, after quoting an extract from his. former brief: “Clearly and unmistakably indicating and showing that my contention was that this power *227charged to have been conferred on Harris was implied from the circumstances, the method of doing business, the book of rules and all other sources of evidence which could be introduced; knowing full well, and realizing all the time and never assuming that anybody else would not know, that there was no possibility of a claim that rule 97 or any other rule contained express authority for a brakeman to eject a trespasser from a railroad train.”
Again, he says: “Had I advanced the theory that there was express authority conferred by the printed rules and regulations to put the trespasser off the train, why would I have introduced in evidence rule 97? Is it contended that I was unable to read the plain English before me? Or have I the hardihood to write to this court that such authority was contained in that rule?” And again counsel says: “Appellee never has contended that express authority was given to Harris to eject the plaintiff from the train.” It will be seen, therefore, that not only does counsel assent to the doctrine of Wood: the non-liability upon implied authority, but renounces the claim of express authority and confirms all that we have said in the original opinion as to the construction of the rules and the finding of the jury that there was no express, general or particular authority to the brakeman to eject the appellee or other trespassers. Nothwithstanding these vehement protests against the theory of express authority, counsel, in his original brief, devoted nearly seven pages thereof to a discussion of the construction and effect of the rules set out in the interrogatories to give brakemen authority to eject trespassers. He dwelt particularly upon rule 97, and quoted the definitions, from Webster, of the word “guardian,” employed in said rule. In one instance, he said: “The language of that rule means just what *228it says: the brakeman is a servant of the train when acting under direct personal orders given him by the conductor or yardmaster. He is guardian of the train when following general rules and regulations and acting on his own judgment and discretion, not in the presence of his superior.” Again he said: “The very nature of the terms ‘In general terms they are the servants and guardians of the train/ construed in the light of the exact facts shown by interrogatories" 5 and 7, show conclusively the meaning intended, namely, the brakeman had general authority to act whenever, in his judgment, action was necessary. * * * * The meaning of the rule is just what the language imports. In the absence of specific orders given by the conductor or yardmaster, the brakeman has general authority to perform any and every act which, in his judgment, seems necessary to the management of the train.” This proposition was repeated again and again with reference to the various rules contained in the interrogatories.
Another statement of that brief indicating the appellee’s theory of the case is as follows: “The allegations in the complaint found to be true by the general verdict, and which these interrogatories and rules are assumed to overthrow, are as follows: ‘That according to the rules and regulations—not rules—in force at said time, the brakeman, George Harris, brakeman as aforesaid, was constituted the servant and guardian of the train upon which said Martin Peterson climbed for the purpose aforesaid, and, as such guardian of such train, it was the duty of said George Harris to protect said train from danger during its trip which it was then entered upon to Chicago, and from trespassers and from the presence of persons upon said train.” Transcript, p. 3, 1. 20-27. And after describing the injury and manner of its infliction, proceeds: *229“All from the fault of the wrongful and unlawful act of said George Harris in performance of his duties as aforesaid to said defendant.” These very allegations were quoted by us in the original opinion, omitting that at the close of the above quotation, for the one purpose of demonstrating our conclusion that the appellee’s theory was to declare upon express authority given by the rules. The counsel so used the quotation as clearly indicated by his claim that the effect of the general verdict was to affirm those allegations. We omitted the allegation, “all from the fault of the wrongful and unlawful act of said George Harris in performance of his duties as aforesaid to said defendant,” because we then believed, and still believe, that it was a mere general conclusion, and not a statement of facts. The numerous glaring inconsistencies in the positions taken by counsel, as we have shown, receive additional confusion by the further contention, upon this petition, that the whole theory of the cause of action was centered in an allegation, not referred to on the original hearing, except as it appeared in the copy of the complaint printed in the brief, and which allegation was introduced in reciting the facts and occurrences leading up to the assault and preceding the above quoted allegation as to the authority of the brakeman. It is as follows: “That in charge of and managing said train was a conductor by the name of Rossiter and two brakemen,one of whose name was George Harris, who was what is known as the ‘rear-brakeman.’ ” This general statement, purely historical and not designed to control the specific allegation of the brakeman’s authority, is now enough to be introduced as the essence of the cause of action.
Some of the misfortunes attending this new theory are that specific allegations control general state*230ments; that the allegation that a conductor and two brakemen were in charge of and managing the train does not carry the inference that the brakemen had authority co-equal with the conductor, or that they had any authority other than that implied from their position as brakemen, and that the jury expressly found that Rossiter was conductor in charge of the train. As said in Wood, supra, if the conductor had ejected the appellee there would have been liability because of the implied authority arising from his being in charge of the train, and that a brakeman so ejecting, without directions from the conductor, would not render the company liable “unless express authority to do an act, to which the act complained of is incident, is shown, because the act is not one tohich comes within the scope of his duties.” This new theory, it is urged, is in line with the case of Carter v. Railway, supra, and that the original opinion is at variance with that case.
If this new theory were the correct theory of the cause of action, the Carter case would possibly support it, but not being the true theory, it is clearly distinguishable, and was distinguished in the original opinion. This much has been written to demonstrate, even to the conviction of appellee’s counsel, that our analysis of the cause of action, as originally given, was correct, and that we were not overreached by the ingenuity of appellant’s counsel, nor misguided by the lack of proper acquaintance with the record. There is no occasion to review the numerous cases cited by counsel upon the general doctrine that the master is liable for the torts of his servants committed within the scope of his employment and duties* This doctrine is conceded.
An appeal is made to change the mandate in this case so as to order a new trial instead of a judgment *231upon the appellant’s motion. To do so would be to express our doubts as to the correctness of the answers of the jury to the interrogatories, and of this we have no doubt. _ While fully recognizing the rule that where justice seems to demand it, this court may direct a new trial, we are convinced that upon the cause of action pleaded the appellant was entitled to judgment. Whether it might have been different upon some other theory of the cause is not for us to say, and certainly it is not in the interest of justice and the peace of society that we should recognize a rule which would permit the trial of a cause upon one theory, and, when defeat comes, permit another trial, and so on, that successive theories may be separately tried as long as the plaintiff’s ingenuity can devise them.
Filed March 6, 1896.The petition is overruled.