115 Mo. App. 349 | Mo. Ct. App. | 1905
— The petition is in three counts: the first count is on the willful and unlawful ejection of plaintiff from one of defendant’s street cars; the second is for false imprisonment at the instigation of defendant’s street car conductor; the third is for the malicious prosecution of plaintiff, without probable cause, on a criminal charge preferred by defendant’s conductor against the plaintiff.
The evidence shows that plaintiff took passage on one of defendant’s street cars traveling east on Market street in the city of St. Louis, and paid his fare to the conductor. After the car had proceeded a short distance the conductor returned to plaintiff and demanded of him the payment of fare. Plaintiff informed the conductor that he had paid his fare. The conductor insisted that he had not, and a heated altercation arose between them during which the plaintiff indulged in some profanity and loud talking. The conductor called a police officer, who was sitting in the front end of the car, and told him that plaintiff refused to pay his fare and that he wanted him (the officer) to put the plaintiff off the car. The officer refused to put the plaintiff off because he would not pay his fare, but told the conductor if he would prefer a criminal charge against the plaintiff he would “lock him up.” The conductor said he would prefer the charge, and the officer then arrested plaintiff, conducted him to a police station and locked him up. In a few hours plaintiff entered into a recognizance for his appearance before a police justice to answer the charge of having disturbed the peace of the
A paper that purported to be a transcript of the proceedings in the case had in the police court was offered in evidence but for some reason was excluded by the court, whereupon plaintiff abandoned the third count of his petition and was permitted to proceed and recover upon the first and second counts. It seems to us that it was indispensable to plaintiff’s right of action that he should have been acquitted of the criminal charge or that it should have been dismissed, for if he was guilty of disturbing the peace then his arrest on the car and his commitment to prison were lawful and right and do not afford him any right of action against the defendant, and the fact that he had paid his fare does not alter the case. [Bierwith v. Pieronnet, 65 Mo. App. 431.] To carve out of the transaction a cause of action for the expulsion from the car and another for the imprisonment, leaving out of view the criminal charge, seems to us to split one cause of action into fragments and then undertake to make one entirety out of each of the fragments. It is like playing Othello Avith the Moor left out; there is no tragedy, no finale. The evidence shows but one transaction and but one cause of action can be carved out of it, and plaintiff’s right to maintain this one cause of action hinges on his discharge from the criminal accusation preferred against him, either by a trial and acquittal or the dismissal of the cause. [Sharpe v. Johnston, 76 Mo. 660.] The demand of payment of a second fare, the altercation in the car, the conduct of the conductor, plaintiff’s arrest Avhile on the car and his imprisonment by the officer are facts and circumstances proper to be shown in evidence in aggraAmtion of the damages, if plaintiff has a cause of action, but they do not afford independent causes of action under the evidence. So far as the record before us shoAvs, the criminal charge is yet pending against plain
The judgment is reversed and the cause remanded.