208 Mass. 287 | Mass. | 1911
The verdict for the defendant was ordered at the close of all the evidence, but as the jury could have disbelieved the defendant’s witnesses so far as their testimony was material, the question is, whether upon the plaintiff’s own narrative he could prevail.
Having entered the subway station of the defendant and paid his fare with the intention of becoming a passenger, the plaintiff was lawfully on the premises, and, if while passing through the turnstile to take a car its servants unlawfully molested him by physical restraint, the defendant is responsible for the injury. Lockwood v. Boston Elevated Railway, 200 Mass. 537, 544; Jackson v. Old Colony Street Railway, 206 Mass. 477. Nor can the corporation escape liability even if its servants acted as special police officers appointed under the provisions of the St. of 1898, c. 282. By § 2 the defendant is made liable for their official misconduct, to the same extent as for their torts when acting as its employees.
The plaintiff testified, that two of the defendant’s servants, one of whom was a special police officer, took him into custody,,, and brought him to the police station where he was charged by the officer with the offense of drunkenness. If the plaintiff was found intoxicated in a public place, “or . . . any place ... disturbing others by noise,” he could be arrested by a police officer without a warrant, and no question seems to have been made by the plaintiff at the trial, nor does he now contend, that the arresting officer was not qualified to act, or that the railway station was not a public place. R L. c. 212, § 36. Short v. Symmes, 150 Mass. 298.
The St. of 1905, c. 384, § 1, which was inserted by the Legislature in place of R. L. c. 212, § 37, governing proceedings after arrest for drunkenness without a warrant, required the officer to make complaint to the court having jurisdiction of the offense. The arrest is only preliminary, and although “ complaint” means the oral allegations by the officer which are to be reduced to writing in proper form by the magistrate or court, the officer is liable to an action for assault and false imprisonment unless he
No further steps were taken to bring him before the court, and, having been discharged without arraignment or trial, the plaintiff ordinarily would have the right to go to the jury on the question, whether when arrested he was intoxicated, with the burden of proof on the defendant to justify the arrest. Phillips v. Fadden, 125 Mass. 198. Hathaway v. Hatchard, 160 Mass. 296. The statute, however, while guarding against the abuse of criminal process, also confers the privilege on the party arrested after recovering from his intoxication to procure his discharge without the publicity of a trial. He may ask in writing for his release, and after certain preliminaries are complied with, the officer for the time being in charge of the place of detention may forthwith discharge him. St. 1905, c. 384, § 1. The paper put in evidence during the cross-examination of the plaintiff, and signed by him, was in terms such a request. It is not contended by the plaintiff that his signature was procured by fraud or coercion, or that any attempt was made to conceal any material portion- of the- paper, or that he was illiterate and did not have full opportunity to acquaint himself with its contents. The instrument having been voluntarily and intelligently presented by him as his own act, and his discharge thereby obtained, the plaintiff ought not to be permitted to set i^¡ aside after the releasing officer acted in reliance upon the statute. Trambly v. Ricard, 130 Mass. 259, 260, 261. McNamara v. Boston Elevated Railway, 197 Mass. 383. It is not only expressly provided by St. of 1905, c. 384, § 2, that if the person arrested is released at his request the officer who took him into custody shall not be liable for an illegal arrest or imprisonment, but settled law, that if a party voluntarily asks to be freed from an arrest without arraignment, and his discharge follows, he impliedly waives any claim for damages which otherwise he might have had against the officer. Gaffrey v. Brugan, 144 Mass. 294. Joyce v. Parkhurst, 150 Mass. 243, 247. Bates v. Reynolds, 195 Mass. 549.
If for the reasons stated the plaintiff could not prevail in a suit against the officer or the officer’s fellow servant, he cannot recover against the defendant. The carrier when sued for an assault by the carrier’s servant upon a passenger may prove in justification that the servant could not have been held liable, or has been released, and, if the servant was not responsible in damages, the carrier also is exonerated. Jackson v. Old Colony Street Railway, 206 Mass. 477. New Orleans & Northeastern Railroad v. Jopes, 142 U. S. 18.
Exceptions overruled.
