140 Mich. 689 | Mich. | 1905
(after stating the facts). Counsel for the defendant preferred the two following requests:
“ If there were no angry words spoken in the rear vestibule between Mr. Shinski and Mr. Foster, and if there were no angry words between the conductor and Mr. Foster, and everything had been gentlemanly and quiet up to the time that Mr. Foster claims he was hit on the head, and if you find that Shinski, as a special deputy sheriff, hit him on the head with his billy suddenly, without any direction from the conductor to do so, then the railway company would not be liable for that blow.”
“It appears by the undisputed testimony in the 'case that Shinski and Fallon were special deputy sheriffs, and although they were paid by the railway company, yet that company could neither appoint nor remove them from office; and if you find as a fact, from the evidence in the case, that these officers, or either of them, committed any assault on Mr. Foster, either on the car or on the ground, while they were in the discharge of their official duties, without any directions to do so from the conductor, then -the company would not be liable for such assault, or any injuries resulting therefrom.”
“ If the defendant’s servant, Shinski, struck the plaintiff substantially in the manner and under the circumstances narrated by the plaintiff and his witnesses, and while engaged in trying to eject plaintiff from the car, under the instruction of the conductor, said action on his part was unwarranted, and the defendant would not be liable therefor. * * *
“Mr. Shinski, by virtue of being a special deputy-sheriff, was a peace officer, and if a breach of the peace by Mr. Foster had occurred, or was immediately imminent,, in the presence of the officer, he had the right to stop or prevent such breach of the peace; and if the officer, to accomplish that purpose, used excessive violence, by using his billy or otherwise, the railway company would not be responsible for such acts of the officer.”
The court further instructed the jury:
“The railway company is not liable for any assault that was committed upon Mr. Foster after he left the car and was on the ground, by either of the officers, or by the conductor or the motorman, or any of the employes of the railway company, even though such assault was willful and malicious.”
Police protection is essential in places of resort like this, visited by large crowds composed of all classes of society. They are apt to be visited by vicious and lawless elements, and by those addicted to the excessive use of intoxicating liquors. Especially is this true of pleasure resorts of this character open at night. The defendant is largely responsible (for the necessity for police protection, because it brings the crowds there, and is perhaps responsible for the means of amusements and entertainments. Many instances are therefore found in law books where the public authorities have appointed police officers to preserve order in these places, but at the expense of those responsible for them. So the public authorities in the present case appointed deputy sheriffs, with the same powers and duties as they would exercise in any other place. When acting purely in their capacity as police officers, the defendant is
When a disorderly person is arrested by a police officer, the presumption is that the officer is acting in an official •capacity, and not as an agent for the party who by law is required to pay him. Jardine v. Cornell, 50 N. J. Law, 485.
We do not think these requests are justified by this record. As a peace officer, Shinski’s sole duty was to preserve the peace, and to arrest those who were engaged in ,a breach thereof. It was not a part of his duty to the ■public to assist in the removal of passengers who refused to pay their fares, unless the removal was accompanied by such disturbance and violence as to amount to an actual or threatened breach of the peace. Neither under the plaintiff’s nor the defendant’s testimony was there any disturbance before the assault was made. The car had not ■stopped, and the court correctly instructed the jury that the defendant’s servants had no authority to remove plaintiff from the car until it had stopped. Plaintiff had not refused to leave the car for nonpayment of fare. Under the defendant’s own showing, all that had been done prior :to the seizure of plaintiff by Shinski was the demand for fare, the assertion by plaintiff that he had either tendered ■or paid the fare, and the statement by the conductor that he would have to pay his fare or get off. A brief state
The conductor, after testifying that he had asked plaintiff for the fares, and that plaintiff replied that he had made a tender of the money and that the fares were paid, testified as follows:
“ Q. Then what took place next ?
“A. Why, I told the man, if he didn’t pay his fare, I would put him off, and I took him, put my hand on the man’s shoulder after asking him the third time, told him to-pay his fare or I would put him off, and he didn’t seem to think he would pay his fare, so Mr. Shinski stood there, and Mr. Shinski took hold of him himself. * * *
‘ ‘ Q. When Mr. Shinski took hold of him, what took place ?
“A. Mr. Shinski took hold of him by the throat and pushed him in the corner. He says, ‘ You pay your fare or I will put you off.’ ”
Mr. Shinski, after testifying to the conversation between plaintiff and the conductor, and Mr. Duckett’s offer to pay, when his arm was pushed aside by the plaintiff, testified as follows:
“ So, I turned around. I stood right side of him, and faced him, in front of him. I says, ‘Now, you have to pay.’ I says, ‘ It has been asked enough.’ So I got hold of his right arm. I says, ‘ Step off, please.’
‘ ‘ Q. Whose arm ?
“A. Mr. Duckett’s. * * * So the other man — he waff right behind him — he jumped up to me. He says: ‘What have you got to say? (using a vile epithet). And I grabbed him. I says, ‘I have got a good deal to say.’' I says, ‘ I will have a good deal to say.’ ”
Mr. Shinski then testified to seizing plaintiff by the throat and pushing him up in the corner. When Mr. Fallon, another special deputy sheriff, who was on the car behind, came up, plaintiff testified that Mr. Shinski told Mr. Fallon:. “These people refuse to pay fares, and we want them, off.”
‘ ‘ The conductor asked me, ‘ What are we going to do F ’ 1 says, ‘You know what to do.’
“ Q. The conductor asked you what to do?
“A. Yes, sir.
“ Q. What did you say to that ?
“A. I told him what to do. I says, ‘You are the conductor of this car.’ ”
He further testified:
“I asked both of them — plaintiff and Duckett — to pay their fares. ‘As you have not paid your fares,’ I says, ‘ this must be settled.’ I spoke to both gentlemen. * * * After plaintiff called me that name, I let Mr. Duckett go, and got hold of him.”
From Mr. Shinski’s own testimony, and as well from that of the conductor, there was no attempt or intention to arrest plaintiff for a breach of the peace, but only to put him off the car for the nonpayment of his fare. The only reasonable conclusion from this testimony is that the conductor either expressly or impliedly called upon Shinski to assist him in ejecting the plaintiff, and that Mr. Shinski understood that to be a part of his duty. Under these circumstances Mr. Shinski did not, in his assault upon the plaintiff, represent the public, but the defendant. It was wholly immaterial whether any angry words were spoken before Mr. Shinski interfered, or whether the conduct of the parties up to that time had been gentlemanly and quiet.
Judgment affirmed.
