Lafitte v. New Orleans, City & Lake Railroad

43 La. Ann. 34 | La. | 1891

The opinion of the court was delivered by

McBnery, J.

The plaintiff sued the defendant company for $20,000 for damages for abuse when in defenant’s car, and for damages for malicious prosecution and false arrest and imprisonment. There was judgment for the plaintiff for the sum of $400, from which the defendant appealed. The facts are that, on the 27th day of December, 1889, the plaintiff entered the street car of the defendant company.

He handed to the driver of the car, through the change gate, one silver dollar for change. The drivers of the cars are instructed to furnish change to the amount of $2 to passengers. The driver returned to the plaintiff ninety-five cents, fifteen cents of which he placed in the fare box for himself and friends.

There was some altercation about the change being short five cents. The driver gave the plaintiff five cents, to make good the deficiency.

After going several squares, the driver charged the plaintiff with having handed a counterfeit dollar to him, for which he had given him the change. The driver, in the hearing of the passengers, threatened to have the plaintiff arrested when he reached the station. He frequently looked at the plaintiff in an angry manner, which attracted attention, and placed the plaintiff under suspicion. When the car reached the station, the driver and the starter at the station had the plaintiff arrested by a policeman, and confined in prison for1 a short while. There was a charge of passing counterfeit money lodged against plaintiff. The prosecution was dismissed, as the dollar, which it is alleged was counterfeit, was a good coin.

There is some conflict of testimony as to the exact point where the plaintiff was arrested. But we-believe his statement is corroborated that he was arrested at the request of the driver by the policeman in response to the “ whistle,” a signal for the officer, which he blew before the car stopped, just as plaintiff was stepping from the car.

The petition of plaintiff contains two causes of action: one for abuse and defamation when in defendant’s car, and the other for malicious prosecution. On the latter cause the record does not show that the charge against plaintiff and his consequent arrest, instigated by the driver of the ear, was done in the exercise of the functions in which he was employed. The driver had no instructions to make arrest for the passing of counterfeit money. No inference of such authority can be drawn from the fact of changing money for passengers. He does this act at his own risk and responsibility. The company loses nothing if counterfeit coin is accepted by the driver, as he is charged with it. It has no interest therefore in the arrest of the person attempting to pass counterfeit money, other than that which induces every citizen to make known crime when committed.

It may be, as alleged by plaintiff, that the act was malicious, wilful and tortious, but, as it was not done within the scope of the driver’s employment, the defendant company can not be held responsible in damages. R. C. C. 2320; Williams vs. Palace Car Co., 40 An. 88; 8 Robinson 150; 15 La. 169; 28 An. 6; Cooley on Torts, 536.

The plaintiff was a passenger on defendant’s street car line. He had paid his fare to his destination. He behaved himself with propriety. He was not drunk or disorderly. The complaint against Mm for passing counterfeit money was groundless. He was subjected to insult and defamation by the driver in the presence of other passengers. If not subjected to arrest within the car, he was practically placed under surveillance by the driver from the time he was charged with passing the counterfeit dollar until he arrived at Ms destination. In the case of Williams vs. Palace Car Co., 40 An. 88, we quoted from and. approved of the law as expressed in the case of Goddard vs. R. R. Co., 57 Maine 202. In that case the court said: “The carrier’s obligation is to carry his passenger safely and properly, and to treat him respectfully, and if he entrusts the performance of this duty to his servants, the law holds him responsible for the manner in which they execute the trust. He must not only protect his passengers against the violence and insults of strangers and co-passengers, but a fortiori against the violence and insults of his own servants.” 57 Maine 202.

The same doctrine is laid down in the case of Keenan vs. Lizardi, 5 La. 531, also ref erred to and affirmed incase of Williams vs. Palace Car Co., 40 An. 88; 9 N. Y. Supreme Court, 922.

There was no conductor on defendant’s car. The driver was in exclusive control of the .car, and charged with the safe delivery of the passengers. He was the only servant of the company to whom the passengers could look for protection.

It is difficult to estimate damages to feelings and reputation. If the plaintiff was possessed of any pride, or had any regard for his character,' his humiliation in the presence of others when in defendant’s car must have produced the severest mortification.

Under the facts presented in this ease, it was the peculiar province of the jury to estimate the damages. In the case of Griffin vs. Railroad Company we said: “While we are not bound by the findings of a jury, even on questions of fact or of damages, and do not hesitate to reverse them when manifestly erroneous or excessive, yet we give them the weight to which they are justly entitled, and do not lightly disturb them.”

The claim for damages for the false arrest and malicious prosecution did not go to the jury. Their finding was confined to the insult, abuse and defamation while in defendant’s car.

We see no reason to disturb the amount awarded by the jury.

Judgment affirmed.