| Ark. | Jan 13, 1913
(after stating the facts). Conceding that the conductor, Bass, and the special agent, Lambert, were instrumental in causing the arrest and imprisonment of appellee Still there is no testimony tending to prove that in so doing they were acting within the line of their duty or within the scope of their authority as the agents of the appellant. The burden was upon the appellee to show that these agents of the appellant, in making the arrest and causing the imprisonment of appellee, were acting within the scope of their authority, real or apparent. The testimony does not show that the conductor was authorized to make arrests of people on his train, whether passengers or trespassers, for the crime of murder not committed in connection with the running of the train. The duty of the conductor is to superintend and control the running of the train in his charge, and to protect the passengers in their rights as such. The most that the evidence tends to establish on behalf of appellee, giving it its strongest probative force, is that appellant’s conductor arrested appellee and had him imprisoned because he, the conductor, had been informed that a man had been murdered and placed on appellant’s track and because the conductor suspected, without cause therefor, that appellee had committed the crime. But is it not within the scope of the authority of the conductor, as shown by the evidence in the record, to make arrests or have same made for such crimes.
The testimony shows that the conductor had authority to arrest a person on his train when in ah intoxicated condition, or who was “raising a disturbance on the train,” but there is no affirmative evidence that the conductor had authority to arrest in any other instance or under any other circumstances. The train had passed over the man who was found dead on appellant’s track before the conductor caused the arrest and ■detention of appellee. It was therefore not necessary to cause the arrest to be made in order to protect the passengers On the train. At that time the passengers were not in danger by reason of anything that appellee was doing or anything that appellee had done, even if he had killed the man found on the track. So it was not necessary for the conductor to make the arrest in order to protect his passengers or to properly conduct the operation of his train. There is nothing to show that th e railway company held the conductor out as having such authority. There is nothing from which such authority would appear from the ordinary duties of a conductor, and certainly nothing in the performance of those duties from which authority could be implied.
The undisputed evidence likewise shows that special agent Lambert had no authority to make arrests in cases of murder unless the arrest was necessary to protect appellant’s property. Lambert “had authority as special agent to make arrests where anything went wrong with the line,” by which he meant “if he came onto a person breaking into a box car or committing any other crimes against the property” of appellant he could make the arrest. Certainly it could not be inferred from this testimony that Lambert had authority to make arrests of persons for the crime of murder, such arrests not having any connection with the protection of appellant’s line or property.
As before stated, if appellee really murdered the man found dead on appellant’s track and placed the corpse on the track for the purpose of derailing the cars, or for the purpose of making it appear that the man had been killed by the train, still such acts were not in any manner injurious to appellant’s line or property. The acts had passed and no injurious consequences had resulted thereform to appellant’s line or train, and therefore the arrest was made for an offense wholly disconnected from any necessary- protection or preservation of appellant’s property, and therefore the arrest was entirely beyond Lambert’s line of duty or scope of authority.
Under the undisputed evidence, as we view the record, Lambert had no authority, either expressed or implied, nor was it within the apparent scope of his authority to cause the arrest ahd imprisonment of one for an alleged murder that had no connection with the duty imposed upon Lambert as special agent, and the authority given him as such, to protect appellant’s line and property from injury. The arrest and imprisonment complained of in this case, according to the uncontroverted evidence, was not in furtherance of the business of the appellant or for its benefit. The proof shows that the conduct of appellant’s agents in causing the arrest and imprisonment of appellee was prompted by what they supposed to be their duty as citizens and officers for the public welfare in the punishment of crime. For such acts appellant is not liable.
In Mayfield v. St. Louis, I. M. & S. Ry. Co., 97 Ark. 24" date_filed="1910-12-12" court="Ark." case_name="Mayfield v. St. Louis, Iron Mountain & Southern Railway Co.">97 Ark. 24, we reiterated the doctrine often before announced that a railway company was not liable for the negligent or wrongful acts of its agents or servants unless done in the line of their duty and within the scope of the authority conferred upon them. In that case we said, “The procurement of the arrest of plaintiff was not done in the ordinary course of the business of the company, nor was it for its benefit, except in so far as it might be for the benefit of all the people of the State that a criminal should be arrested, prosecuted and convicted. If the agent, acting from a sense of public duty, should cause the arrest of an offender his conduct would in no way be connected with his employer so as to fix upon him a liability.” See cases cited in the opinion.
It follows from what we have said that the court erred in not granting the prayer of appellant for a peremptory verdict, and also in its rulings upon other prayers set forth in the statement. The judgment is therefore reversed and the cause dismissed.