The opinion of the court was delivered by
This appeal brings up a judgment recovered by the respondent in an action for false imprisonment. The declaration described the unlawful imprisonment and charged that it was without any reasonable or probable cause; an amended answer, filed after the new Practice act took effect, set up as a defence that defendant caused the plaintiff’s arrest under section 59 of the General Railroad act, having probable cause to suspect that the plaintiff, “having paid his fare for a certain distance, to wit, from Jersey City to Passaic, was knowingly and willfully proceeding on such train beyond such distance without previously paying the additional fare for the additional distance and with intent to avoid the payment thereof,” which is the exact language of the statutory provision cited.
The question of probable cause, which both parties had thus made an issue, was submitted to the jury who found for the plaintiff, i. e., that there was no probable cause for his arrest under the statute in question.
The main contention of the appellant is that it was error to submit the question of probable cause to the jury where the
The appellant correctly apprehends that the error of leaving the question of probable cause -to the jury would not lead to a reversal unless the other proposition also is true, viz., that the trial court ought to have decided that question favorably to the appellant, for unless this be so, the submission of the question to the jury gave the appellant a chance to which it was not entitled; the appellant is not injured if the trial court ought to have decided as the jury in fact did decide.
The controlling consideration therefore is not whether the question ought to have been decided by the trial court (which may be conceded) but whether it ought to have been decided favorably .to the appellant, or to state it in another way, whether, if the trial court had decided that probable cause was shown, such decision would be supported by any evidence. Unless this be so, the error complained of was a harmless one, for which a judgment will not be reversed; this is so bjr force of the general principles of appellate procedure and also by virtue of section 27 of the .new Practice act.
Upon the merits it is clear to us that the case is entirely barren of any evidence that the appellant had probable cause to believe that the respondent “knowingly and willfully proceeded on the train” beyond Passaic, the destination called for by his commutation ticket, which was his home to which he was returning in the early morning after a night which he had rendered trebly arduous by interspersing his journalistic labors with card playing and indulgence in strong drink. The uncontroverted testimony is that the respondent was carried past Passaic because he was asleep when the train stopped at that station, and that when he awoke the train had drawn, out of the station and the conductor would not stop it to let him off as he desired and requested, indeed, as he, according to the
Apart from this element of fraud the passenger would he a mere debtor of the carrier for the amount of the lawful fare and as such, in the absence of fraud in the contraction of such debt, be no more amenable to imprisonment for such debt than any other debtor would be for any oilier debt. Fraud is therefore necessarily of the essence of the offence in question, and to such fraud it is essential that the respondent should have proceeded on the train beyond Passaic in pursuit of a fraudulent design so to do, winch cannot possibly be true of a passenger whose desire was to get off at his home station and who was carried beyond it solely because he was asleep, which is without any dispute in the testimony the fact in the present case.
The refusal of the respondent to pay the twelve-cent fare demanded of Mm for the distance he was unwillingly carried may have constituted a refusal by a passenger to pay a lawful debt incurred by bis own negligence, but it was not a debt contracted by fraud for which he could be constitutionally imprisoned or for which a fine could be summarily imposed upon Mm under the statute in question — under which, by the way, such fine goes wholly to the common carrier.
It is only by misreading the statute or by confusing “know
Fraudulent design in the contraction of the obligation to pay the demanded fare being thus the key to this statutory provision, our examination of the testimony satisfies us that there is not a scrap of evidence that such a design existed in the mind of the respondent or that the conductor who caused his arrest had any probable cause to suspect its existence. There is nothing in the proofs to cast the slightest doubt upon the fact that the sole reason the respondent was carried past Passaic was that he had fallen asleep; the appellant’s witnésses did not intimate that this was not the fact, and the conductor who caused the arrest does not for a moment pretend that the respondent was shamming, or that he thought it part of a fraudulent design to secure a ride to Paterson. Even if he had so testified, it -would have been entirely without foundation. In' fact the sole and only ground given by the conductor as the basis on which he acted is contained in the following questions and answers:
■ CQ. Why did you think he was’ trying to beat the railroad company out of a fare ?
“A. Because several others had tried to do it. ’
“Q. Oh, just because several others had tried to do it, you suspected him — you had no reason to suspect Mr. Mallery?
■ “A. No more than anybody else.”
It being thus clear that if the 'trial court had decided the question of probable cause favorably to the appellant, such a decision would be'unsupported by evidence, the submission of the question to the jury was not'an error for which the judgment against the appellant should be reversed.
The other criticisms of the charge'we find to be unfounded; but to avoid misapprehension it would be well to state that we have not considered whether the doctrine of probable cause
Eor the reasons giren the judgment of the Supreme Court is affirmed.
For affirmance — The Chancellor, Chief Justice, Garrison, Swayze, Trenciiard, Parker, Bergen, Minturn, Kalisoii, Booket, Heprenheimee, JJ. 11.
For reversal — N one.