Bismarck daily tribune., 1912-02-19
Supreme Court
IN THE SUPREME COURT, STATE
OF NORTH DAKOTA, OCTOBER
TERM, 1911.

E.IdlcuOuSc, pI1lutAA oAu ASopoAA~AS]AS'
vs. Minneapolis, st. Paul and Sault
Ste. Marie railway company,a cor
poration, defendant and appellant.
i 1. Am endorsement stamped by
means of a rubber stamp on the back
cf summons md complaint, OF the
words in sheriffs Office, Dec. 2, 1908,
John J. Lee, sheriff, Ward county"
will under Sec. 1903, of the Codes OF
! 1905, which makes it the duty of the
sheriff to endorse upon all notices
: and processes received by him for
service, the year, month, day, hour
and minute of reception" and under
Sec. 1917 of the Code. which provides
that "the presumption that official
duty has been regularly performed Is
, satisfactory if umcontradicted" will
be deemed satisfactory evidence OF
the facts therein contained, and that
I the summons and complaint were de-
livered to the sheriff for proof to the
, coptrary.
2. A person is not passenger and
entitled to consideration and protec-
ton as such who, after waiting all
day in station for train and dis
covering that he ill be unable to
reach his destination in time for the
accomplishment of the purpose of his
journey, leaves the station and goes
to hotel for supper and then returns
! to such station for the purpose OF
sending a telegram announcing the
fact that he will be unable to make
! the journey, and that it is intention
not to attempt to do so.
3. The mere fact that an empl0ye
is authorized to preserve order upon
the premises of his employer. does
not make an assault committed by him
upon a patron of his employer an
act done within the scope Of his au-
, thority, for which his employer will
b, liable when the evidence shows
that the assault was not made for the
purpose OF preserving order or eject.
|. ing such person from the premises in
pursuance of such authority.
| 4. When there is a conflict In the
evidence, but the testimony of the
plaintiffs witnesses, If believed, would
justify the jury in finding that COM
mon carrier of telegraphic messages
has neglected to promptly deliver a
death message to the plaintiff, so that
plaintiff has been unable to take a
train by which he could have reached
the home of the deceased in time for
the funeral, and the plaintiff, after
waiting all day in the station for a
later train, and then finding that he
would be unable to reach his detina-
, ton in time, went to the telegraph
office to send a message announcing
the fact, and, on being informed that
the wires were down and such mess.
, age could not be sent, complained
! because Of the failure of the company
to deliver the message promptly in
the morning. and, on account Of such
protest. was assaulted by the tele-
! graph operator, the common carrier
of telegraphic messages may be held
responsible for such assault and H.
able in damages therefor.
5. II. however. after going to the
: depot for the purpose of sending the
message. and after being informed
that such message could not be sent
, on account Of the fact that the wires
were down, the jury had found that
plaintiff had not merely complained
of the failure tosdeliver the message
in the morning, but had called the
; employee liar, or used other oppro-
brious language which indicated, the
employee to make the assault, so that
the assault was the result of the ir.
ritation occasioned by the used Of
such language. and not Of the mere
fact Of the making Of the complaint,
;; the employer would not be liable in
damages therefor. "One may not by
his acts spoil an instrument and then
sue the manager because the perfor-
mer does not make good mustic."
6. A person who goes to tele-
! graph office to send message or to
make complaint as to the failure to
deliver the same. is not trespasser
or licensee, but customer or patron,
, and is entitled to treatment and pro-
lection as such.
Z Where the evidence Is in con-
| flict and the record shows that the
trial court instructed the jury, but
omits entirely to include such instruc-
tions, it will be presumed on appeal
that such instructions were correct.
and properly presented the law and