This was an action in the court of common pleas to recover damages for an assault committed on Mr. Fiebach, as alleged, by the agent of the railway company in the yards at Bellevue, the jury returning a verdict of $1,000 for damages sustained by Mr. Fiebach, and judgment was entered accordingly.
*370A large number of errors are assigned setting forth the reasons why this judgment should be reversed. We find in the record one hundred and twenty-eight exceptions and twenty-eight requests to charge, and we are very clear that after a careful examination of this record no one will reach the conclusion that any of the rights of the defendant railway company have been overlooked by its counsel in this case; they have certainly been presented fully..
From what I have said, it will be apparent that it is not practicable for the court to undertake to review in detail the exceptions that have been presented nor to review in detail the requests to charge. I think we have reached .a conclusion that perhaps could not have been reached if the court had not been an odd number. We might have been as far apart as counsel were at the trial table, if the court had been an even number. It is perfectly apparent to anybody who will take the trouble to examine this record that it is full of very important questions, and as I have said, they are fully presented and all presented with great care, so that they may be passed upon and a correct result reached.
The case has caused us more concern than any other two cases that we have had, and in announcing the opinion of the majority of the court, I feel at liberty to say that even the majority of the court entertains some little doubt about the correctness of our conclusion in some respects.
Speaking of the requests to charge, while we hold that neither 5, 9, 12 nor 18 should have been given, it may be said that the majority of the court are somewhat in doubt about 5, 9 and 18. Twelve, we think might well have been given, because it is simply a charge that the commission from the governor was a commission that clothed a detective of the railroad company with police powers. We think the failure to give it can not be prejudical error in this case, because the commission is in evidence and, taking the case in its entirety, we can not see that the failure to give it could be prejudical to the defendant. We are very clear that none of the requests other than 5, 9 and 18 should have been given.
It is said that the court should have admitted evidence that was offered of the intention of Mr. Beatty, the railroad detec*371tive, to-wit, that lie should have been permitted to state whether he intended to act as a policeman, or whether he intended to act as the agent of the company. Upon careful reflection, and an examination of this question in the record, we think that is not correct.
The record discloses that he was asked, not what he intended to do, but he was asked in what capacity he intended to act, and we think the capacity in which he acted can not be determined in that way.
It is said here that it is against public policy for the alleged agent of the railroad company to be at the same time the agent of the company and a commissioned officer of the state, and that consequently no duty that he performed, as long as he held his commission, can in any view of the case be properly outside his commission; that everything that he does must fall within his commission — within the terms and scope of his commission— whether it is a police duty or some other duty, and that consequently he falls within the rule that a municipality is not liable for the acts of its police officers and that the same rule applies to an individual who has secured an appointment of a policeman; that the payment of the salary under the statute does not make the railroad company responsible for the acts of the policeman.
It is true, unquestionably, that a municipality is not responsible or is hot liable for the acts of its police officers, done in excess of their authority while acting as policemen. Nothing could be better established than that by the authorities and the authorities presented here by counsel for the railroad company are very strong indeed along the line that .a policeman, working for a private individual under commission from the .governor, is also acting in such capacity as that his employer is not responsible, or the man who pays him rather, is not responsible for any of his acts; and therefore, it is said that this .assault, if ,an assault was committed, must be held to have been committed by the man in his police character, and if he exceeded his authority, nobody is responsible but himself, that certainly the railroad company is is not responsible. Many authorities .are cited in support of that proposition.
We think the difficulty- in this case lies in the fact that the proof in the record which is very long, tends to show that this-man had duties outside of the duties as a police officer.
*372It is said here, that he had no specific instructions and that consequently his relation of agent to the company can not be shown by showing that he was held out as an agent of the company, as for instance, in a case where some man had contracted with him supposing him to be an agent because he had prior thereto contracted with him; that the rule does not apply here, because Mr. Fiebach never saw the man until a few moments before they were in this personal encounter; therefore, it is said that no holding out of the man would be of any avail as showing that he was an agent of the railroad company, and that inasmuch as the plaintiff has not been able to prove any specific instructions to the man, therefore he can not be held in this case to be an agent with any specific authority as is claimed here.
The man testified in two ways.' He testifies in one instance that he got all of his instructions from the chief of police of the railroad company, Mr. Snyder, and that Mr. Snyder, whose office was in Cleveland, was charged with the general duty of instructing all subordinate officers in their duties and that he got his instructions from Snyder. Later he testified that when he began work, he reported to Mr. .Blair, who ivas one of the division superintendents, and he states that he got his instructions 'from Blair; but perhaps his testimony later may indicate that he did not intend to say quite that much, because at a later point in the record he does state postively that he never had any instructions from any of the officers of the railroad company; he nowhere takes back the statement that he did get instructions from Snyder; but he says postively that he did not have any instructions from any of the other officers of the railroad company; however, in two places in the record, at least, he is inquired of what his duties were and he details what they were; and among other things he gives as his duties the driving of people out of the yard of the company; he says he was there to prevent people from riding trains in and riding them out, and to drive hoboes out of the yard, whatever that may mean; and that he had driven all classes of people from the yards, that he had been doing that from the time of his employment, some seven years before.
He does not say that he saw people who were violating the law, or who were about to violate the law to the extent, at least, that they had given evidence of such intention, but he simply says, *373when saw people in the yard that to him seemed the proper people to have move along or to leave the yard that he should consider himself commissioned to perform that service and he proceeded to perform it and he did perform it for some seven years.
Without extending his statement further, I will say that the majority of the court are of the opinion that this record clearly discloses that this man had two lines of duty and that he performed them both — one as .a policeman in which he performed purely police duties — and for this we think the authorities cited by counsel for the railroad company clearly established the proposition that the company would not be liable; but he also had another line of duty, and that was a line of work for the company that did not at all fall within his duty as a police officer; it might fall within the line of duty of any agent, whether he carried a police commission or not, and that in the discharge of those duties, he must be held, under this evidence, to be the the agent of the railroad company.
In this case, he encountered a man who was walking along by a train, toward a switch shanty, and he accosted the man and asked him what he was doing there, and some statements between them took place, each inquiring who the other was and both of them behaving about as unbecomingly as any two men could behave. Neither of them took the slightest pains, as appears, to avoid trouble; in fact, a reading of this record discloses that they were qvute ready to get into difficulty, and like most any two. men that meet in the dark in a railroad yard, with that disposition, that followed which naturally would follow and it followed with remarkable rapidity and with disastrous results to one of them.
The whole affair might have been avoided. We think it does not appear that this man was attempting to make an arrest at the time; we think it appears from the record that he found a man in the yard that he believed belonged -to that class that he had customarily chased out of the yard and he proceeded in his own way to chase him out of the yard. Some objection was made by the other man, and his stopping at the shanty resulted in a free-for-all fight.
It is said that there was a cessation .of hostilities, and that one of them politely asked the other one to pick up his cap for him, *374and when the other offered to perform that service he attacked him again, and that renewed the fight and from that time on the most injury was done to the plaintiff below in this case and consequently he ought not to recover.
We have read the record in that regard and it presents to us rather a continous fight, and if there was any cessation of hostilities in which subsequent politeness played any particular part, we do not discover it in reading the record: It is not manifest to anybody; it is manifest that a row was on there, with all the incidents of a free-for-all fight; and it is also manifest, we think, that the aggressor was Mr. Beatty, who was the agent, in that transaction at the start, of .the railroad company, and was not .acting with view of making an arrest.
It is said that, after the assault was eommmitted upon him, he then had authority to arrest the man, because the man had committed an .assault upon him, and that he (Mr. Fiebach), being a violator of the law at that particular moment, it was of no moment that his energies were directed toward Mr. Beatty instead of somebody else.
We think that is true, if the facts were a little different, but we think it would require rather a fine sighting into this record to work out the situation and find that there had been a cessation of hostilities and a separation of the combatants and the dropping of the controversy, and then such a renewal as justified the man who first began it in making an arrest because he feared that the law was about to be violated. We think the first violation of the law was upon the part of Beatty, and it is. apparent that it was simply an excess of force used by Beatty in a representative capacity, as .agent of the company in attempting to exclude the man from the property of the company, who had not violated any law so far as the record discloses, nor had he given any evidence of any intention to violate the law to such an extent as would have warranted either his arrest or his being excluded from the property of the company.
Beatty had a star on as a police officer, he says, and he says he had it buttoned under two coats; it was not disclosed at all; nothing was said by him about his being an officer until the fight had progressed to some considerable extent, and then the only thing that was said about it was the statement of another man *375—perhaps a Mr. Tracy — who admonished Fiebaeh to go along with the man because he was an officer; but for some reason not apparent in the record, Beatty saw fit to conceal entirely the. fact that he was an officer and refused to tell Fiebaeh his name, and in no wise, as we read it, acted as an officer, but acted as an agent of the company, and acted with excessive force, and acted with resulting injury to Fiebaeh.
A verdict of $1,000 has been returned and we think, upon reading the record, that the jury were justified in finding damage to that amount.
Without dwelling upon this case further — a case which we considered and examined very carefully for over a whole day in great detail — I will say that the judgment of the court of common pleas will be affirmed.