60 Vt. 588 | Vt. | 1888
The opinion of the court was delivered by
This case was heard upon a general demurrer-to the defendant’s third special plea. The declaration in substance charged that while the plaintiff was lawfully and properly operating its railroad in running a train of which Collins was
The third plea alleges that the defendant had a legal cause of action against Collins which was equally enforceable against the plaintiff’ founded upon the negligence of Collins, the plaintiff’s servant, in causing the injury to said heifer; that suit thereon was brought against Collins tortwise; that the defence to such suit' was assumed by the plaintiff in behalf of Collins, and. therein the question whether said heifer was unlawfully and by the defendant’s fault upon said railroad track was litigated, and that it was adjudged in such suit that said Collins was in the wrong, and judgment was entered in favor of the now defendant against Collins; and that the arrest of Collins upon the writ in said cause was in pursuance of the defendant’s legal right, and no more was done than was necessary to that end.
The question raised and argued before us was whether an officer having a legal process in which he is commanded to arrest the body of the defendant may stop a railroad train for the purpose of making an arrest of the engineer of such train. The defendant in his brief says: ‘ ‘ The question submitted is this, had the officer the legal right to stop the train for the purpose of arresting Collins ? ” The plaintiff in its brief says : ‘ ‘This case is not to be decided upon the theory that the plaintiff’s only claim to recover rests upon the fact that as an incident of the arrest he lost the service of an employee. That is not the claim we press. The question is one of public policy.” The court below sustained the demurrer on the ground that the officer had no right to stop the train to arrest the body of the engineer upon civil process against him.
The process was a legal one commanding the officer to arrest Collins. The command in the process was the command, not of Hunt, but of the law. The officer did not act in making the arrest because Hunt commanded him, but because the law commanded him. Hunt to be sure had invoked the issue of the process, but the sheriff’s justification and authority was the command of the process.
Cases may easily be conceived in which, upon considerations of relative convenience and inconvenience, the stopping of a train to serve a justice writ upon its engineer would seem to be ridiculous. But, on principle, would it be any more so, if the train was stopped to serve a writ upon the engineer claiming ten dollars in damages for an assault and battery, than stopping it to arrest him in a criminal proceeding seeking to impose a fine of ten dollars upon him for the same assault? It will hardly do to rest the question upon conjectural difficulties. If it is a question of public policy, it is so because its usual, normal and legitimate consequences are hurtful to the public. As a practical fact there is little danger that officers will have occasion to stop a train for the service of process of any kind. Again, it is conceded that the officer might arrest the engineer at a station on the road. But this would delay the train just as long and work precisely the same inconvenience to the public as stopping it between stations.
It is admitted that an officer might stop a stage coach to arrest the driver. This conceivably might delay the passengers, on their way to a railroad station so that they fail to reach a train that their business requires them to take. What is the difference in principle between an act which hinders the passengers
If the question is one of public policy it must apply generally to public carriers. But we think the right to arrest cannot be defeated upon any considerations that public policy forbids its exercise in the case of locomotive engineers. The command of the process is the voice of the law speaking to its officer. It is the order of the State of Vermont to do the act complained of. There is no room for the doctrine of public policy in such a case. It is illogical and absurd to say that the command of the law cannot be executed because on grounds of public convenience or expediency, the court thinks it better to nullify the law.
The plea alleges that the defendant’s cause of action existed against the plaintiff as well as Collins. The suit for the injury to the heifer might have been maintained against the railroad company. Had it been so brought and had the officers stopped the train to attach railroad property on board, the same mischievous consequences to the public would have resulted as those now portrayed. Can it be claimed that process against a railroad company is not to be served, as it may be against other defendants ’ because it will work inconvenience to the public ? Process served upon an individual may work incidental injury to others. If a physician is arrested, his patients may suffer.
It is quite apparent that the argument that public policy forbids the service of process as made in this case is unsound and illogical. The legislature can establish any regulations in the premises that may be needed.
The judgment is reversed and judgment is rendered that the demurrer be overruled and the third plea is sufficient.
The cause is remanded with leave to the plaintiff to replead on the usual terms.
