79 W. Va. 148 | W. Va. | 1916
In an action of trespass on tbe ease' for an alleged false imprisonment, James Comisky recovered tbe judgment to which this writ of error was awarded. He was arrested October 15, 1914, while on defendant’s passenger train on the evening run from Bluestone Junction to Bluefield. For some months theretofore he had been and then was an employee
Plaintiff now bases his right to transportation that evening, first, upon a check issued to the- company’s employees, and, second, upon a pass issued to Carmody or Stevenson, formerly co-employees with him, which he claims Jennings had theretofore deemed sufficient authority to allow passage on the train in his charge. The sole purpose of the check, however, was to identify the bearer as the employee entitled to the payment of the wages due him; and it does not appear whether Carmody or Stevenson was then on the train, or indeed was in the service of the company. It seems they were not. Hence, neither of these excuses furnished any colorable grounds for asserting the right claimed.
Without the payment of fare, plaintiff was not entitled to passage on defendant’s train when not engaged in its service. Upon his refusal to pay when payment was demanded, the conductor lawfully could have ejected him from the train, providing no more force was used than was necessary to effect the removal. Indeed, it seems reasonably clear he entered into the car intending to obtain passage, with the knowledge that he had not right thereto except upon the condition of the employment, an employment he had that day abandoned. Whether he was sick or not, he did not secure the aid of a physician, that being the alleged object of quitting his labor that day. On the contrary, the only medicine obtained he procured in a Virginia saloon, by means of which he became intox-
The important questions to be determined upon this writ are whether Jennings arrested plaintiff or caused his arrest and detention; and, if he did, whether he then was acting within the scope of his employment. Had Comisky committed any conduct punishable under the provisions of §31, ch. 145, Code, Jennings could without doubt have arrested and detained him with impunity, during such' period of time as necessity required for the arraignment and trial under an accusation therefor. Of course, while effecting this purpose, he would have been serving in the dual capacity of a conservator of the peace and as the representative of the company ; for that section constitutes railroad conductors conservators of the peace in this state, and grants to them the authority conferred upon officers of that character.
That Jennings did remove plaintiff from the seat he occupied in the car is free from doubt, although the manner of performing that act, whether unnecessarily violent or otherwise, is controverted. He either arrested or caused the arrest of plaintiff. While at first denying it, the conductor finally reluctantly admitted he did make the arrest, assigning as the sole reason therefor the refusal of- his demand for fare. But, whatever he did at the inception of the difficulty, the uncontroverted fact is that Cunningham, a deputy sheriff of McDowell county, then a passenger on the car, in nowise connected with or employed by the railroad company, assumed exclusive control of plaintiff and detained him in custody
Some effort was exerted, though in vain, to establish a relationship between Cunningham and the defendant company, the obvious intent and purpose of which was to lay a foundation whereon to base a claim of liability on it for Cunningham’s official conduct. The want of any such connection is clearly proved. Of that no doubt exists. For his acts, however unlawful they may have been, apart from what is accredited to Jennings, the carrier is not chargeable, unless (1) Jennings knew, or failed to lmow when (if reasonably diligent in the performance of the duties devolving on him) he ought to have known, Comisky had done nothing to justify the treatment inflicted on him; or unless (2) he as the conductor delivered Comisky to Cunningham with direction to cause his further detention that he might be prosecuted for an offense not lawfully punishable except by ejection, or for some unlawful purpose. To render the carrier responsible for the resultant consequences of such continued detention, it must appear, as we have said, that the conductor at the time was engaged in performing the functions assigned him by his principal, in other words, within the scope of the authority impliedly conferred on him.
That Jennings knew, counseled, directed or was aware of what was done after Cunningham assumed control of plaintiff immediately subsequent to the arrest until the time fixed for the trial at eight o’clock on the following evening, no testimony shows. His connection with the matter apparently ceased when Cunningham took charge of Comisky, except so far as indicated by his appearance as a witness at the trial and in making the complaint on which the trial warrant was issued. Jennings’ only participation in the infliction of the injury complained of was in causing the initial apprehension, verification of the complaint, and appearance as a witness. Beyond the demand for fare, he said nothing, except to tell Cunningham to “take this man”, of course meaning plaintiff. That he made the statement Jennings denied. No one
That neither the complaint nor warrant charged any offense is a fact not disputed or in anywise contested. Nor are' the further facts that, except the initial arrest, and delivery of Comisky to Cunningham, Jennings did nothing towards effecting the incarceration, and had no knowledge thereof until summoned to appear as a witness at the trial twenty six hours later. He then did make the complaint, the only •charge preferred being non-payment of fare. Of this charge Comisky was acquitted. As it did not present any offense legally punishable, of course he promptly and properly was discharged, although the imprisonment had continued during twenty six hours, part of which time Jennings was not engaged in the actual service of the company, nor was he when he verified the complaint. But the carrier can not escape liability merely because its agent failed to know what his duty required him to know as to the probable effect of an arrest which he participated in procuring, the resultant consequences of which he should have anticipated.
That a carrier is chargeable with the consequences of the unlawful acts of its employees while engaged in the performance of the duties entrusted to them, and as a part of such •duties, is a doctrine generally recognized and frequently applied. The chief difficulty lies in its proper .application to the facts proved in each case. Most of the decisions are predicated upon proof of wrongs done to passengers, as to whom the law requires the exercise of a very high degree of care, due to the contract for safe carriage. The courts hold the carrier to a strict accountability for any unlawful imposition of restraint or divergence .from a just and reasonable treatment by its servants, so long as the passenger refrains from violation of the terms of the contract or the reasonable rules and
It has been held in an action for false imprisonment of a-passenger, in Knickerbocker Steamboat Co. v. Cusack, 172 Fed. 358, that “appearing before a magistrate and making' an unjustifiable charge against the plaintiff is a continuation of the original wrong in causing him to be arrested and taken before the magistrate, and that the carrier’s liability extends, to the detention of the plaintiff under the magistrate’s order”.. The same principle was stated and applied in Brown v. Railroad Co., 34 Hun 471; Jacobs v. Railroad Co., 75 N. Y.. S. 679; Lynch v. Railway Co., 90 N. Y. 77; Baumstein v. Railway. Co., 107 N. Y. S. 23; Grayson v. Transit Co., 71 S. W. (Mo.) 730; Railroad Co. v. Luleich, 85 Ill. App. 643; Railroad Co. v. Cain, 81 Md. 688; Railroad Co. v. Kupper,. 118 S. W. (Ky.) 266. These were cases involving causes of action arising out of arrests of passengers by the carrier’s agents while actually in the service of the master. In some of them a dispute arose as to the payment of fares, followed by an explicit direction of the agent to a police officer to apprehend and detain the passenger for trial on an accusation thereafter made based on such nonpayment, and of which, he was acquitted on a trial therefor. There was such immediate and intimate connection between the initiatory and final stages of the transactions as to induce the opinion, expressed in different form in the several proceedings, that there was such continuity in the invasion of the rights of the passenger as to constitute one continuing act, beginning with the first assault by the agent and terminating in the discharge by the magistrate or court. The cases proceeded upon the theory that, as the carriers through their duly authorized agents had set in motion the legal machinery which resulted in the unlawful imprisonment, they were responsible for the ultimate consequences, in the absence of any satisfactory explanation on their part. Such, indeed, is a logical deduction where the proof shows, as it did in each of the eases cited, the uninterrupted sequence of the events following each other in regular order from the incipiency to the final termination of the entire transaction.
This rule was quoted with approval in Polonsky v. Railroad Co., 184 Fed. 561, the court holding that the policeman was without authority to make an arrest upon the mere direction of a Pullman conductor to incarcerate another without a warrant, and that the plaintiff had a right of action for false imprisonment against the company whose servant the conductor was. In Corbett v. Street Railway Co., 42 Hun 587, wherein a passenger refused when demanded to return money collected by him from another passenger to compensate himself for an admitted over-payment of fare, the court held defendant liable and that the liability included “the entire injury and indignity to which the plaintiff was subjected not only by his removal from the car but by his subsequent
Defendants also challenge the accuracy of the first instruction given for plaintiff, and the correctness of the refusal to give two instructions offered by them. The principles stated justified the ruling on the prayer of plaintiff for the direction given in his behalf. That instruction, in an abbreviated form, virtually embodied what has been said in respect of the carrier’s liability for the tortious acts of its servant and eodefendant, and was not erroneous. The theory on which defendants predicated the instruction propounded by them and refused was that they were not responsible for the consequences of the arrest on an invalid charge, if Comisky was guilty of an offense committed by Mm while on the train, although not charged in the complaint or warrant. WMle plausible, this contention finds no support in the authorities cited or found. Some proof submitted to the jury and considered by them tended to show plaintiff was at the time of the arrest somewhat intoxicated and had theretofore used
But it must not be understood that the evidence of conduct violative of an express statutory provision is wholly inadmissible in the circumstances detailed because not admissible
Finally, it is argued that the damages allowed by the jury are excessive. While, because of the behavior of Comisky, of his apparent willingness to invite or at least not to avoid conditions which- might induce arrest, and of the not infrequent previous punishment by fines and imprisonment which had theretofore doubtless properly been inflicted for drunkenness and other unlawful behavior, there seems to be more than usual merit in the contention that the jury assessed excessive damages; yet it was within their province to fix the amount; and the court feels bound, by many decisions, to. yield to their judgment, in the absence of a reasonable inference of duct on their part. Besides, the conduct of Jennings wg,s not without reproach. Had he exercised sound judgment or ordinary prudence, or had he ejected plaintiff from the car, as lawfully he could have done, there would perhaps have been no occasion for this litigation.
Our order will affirm the judgment.
No proposition relied on by counsel and decided upon the former hearing is presented now for readjudication; and the only new one advanced is that, as plaintiff was attempting, without payment of fare when demanded, to secure passage on the train of a carrier engaged at the time in the transportation of passengers and interstate shipments, that attempt oonstituted a violation of the act of congress to regulate commerce, approved February 4, 1887, as amended June 29, 1906, .and, as such, was punishable as therein provided; or a violation of sections 6 and 7, eh. 9, acts 1913, ch. 15-0, Code.
The federal act, as amended, provides: “No common carrier subject to the provisions of this act shall, after January 1, 1907, directly or indirectly, issue or give any interstate free ticket, free pass or free transportation for passengers except to its employees”; and “any common carrier violating the provision shall be deemed guilty of a misdemeanor and for each offense on conviction shall pay to the United States a penalty of not less than one hundred dollars nor more than two thousand dollars”, and any person other than those ex-eepted therein “who uses such interstate free ticket, free pass or free transportation shall be subject to a like penalty”. No less specific as to the carrier is the state statute, which de clares: “No public service corporation subject to the provisions of this act shall, directly or indirectly, by any special rate, rebate, drawback or other device or method, charge, demand, collect or receive from any person, firm or corporation a greater or less compensation for any service rendered or to be rendered than it charges, demands, collects or receives from any other person, firm or corporation for doing a like and contemporaneous service under the same or substantially similar circumstances and conditions. It shall be unlawful for any public service corporation subject to the provisions of this act to make or give any undue or unreasonable preference or advantage to any particular person, company, firm, corporation or locality or any particular character of traffic or service in any respect whatsoever, or to subject any particular person, firm, corporation, company or locality, or .any particular character of traffic, or service, to any undue or
Virtually there is but little appreciable difference between these statutes, except that one prescribes like punishment for both violators and the other punishment for the carrier only-Both purport to provide remedies to prevent intolerable corporate transportation practices theretofore prevailing among common carriers and their patrons, and to prescribe punishment for a violation of their provisions. The shipper or passenger and the carrier were guilty alike of the evils sought to. be remedied. It required the combined acts of both to grant and obtain an unjust discrimination. Neither alone could or did accomplish tl %t object. It resulted ordinarily from a joint combination ii which both were participants, and each of them the statutes inveigh against and aim to punish. Clearly, that was the purpose and effect of the act of congress. But an analysis of each statute discloses an intention to prescribe punishment only where there is an express or implied agreement between the carrier and passenger or shipper in the nature of a combination to defeat the effective operation of both acts by dispensing and receiving privileges or favors prescribed as unlawful. To issue or give, concede directly or indirectly, import joint action, open or covert, by two or more persons, the giver and recipient. One person, alone is incompetent to grant benefactions without the participation of another active agency near or remote, provided it is competent to receive and does receive the benefits conferred. In all gifts and concessions, three co-operative factors exist — the giver, the gift or favor conceded, and the recipient; and to be efficacious they can concur only by the actual agreement of the active agencies, or by consent implied from circumstances- 'Within these limitations, it can not be contended successfully the act and conduct of Comisky fall. The defendant did not enter into any agreement with himr nor he with it, express or implied., for transportation to Blue-field, without payment of fare. The converse of that proposition appears conclusively. He endeavored to secure passage without the knowledge or consent of the defendant’s representative in charge of the train. It was as a “dead head”'
But, if it be conceded that the act of Comisky was in violation of either or both statutes, and that the defendant was a carrier engaged in operating an interstate railroad transportation of passengers, the concessum will not avail as a defense to the action, as Comisky was not charged with such violation, but with a wholly different and- distinct offense. On that proposition the authorities cited in the original opinion are, we think, conclusive.
We reaffirm the judgment.
Affirmed.