Chi., R. I. & P. Ry. Co. v. Radford

• Decision Date: 07 January 1913
• Docket Number: Case Number: 2313
• Citation: 1913 OK 7,36 Okla. 657,129 P. 834
• Parties: CHICAGO, R. I. & P. RY. CO. v. RADFORD.
• Court: Oklahoma Supreme Court

1913 OK 7

129 P. 834

36 Okla. 657

CHICAGO, R. I. & P. RY. CO. v. RADFORD.

Case Number: 2313

Supreme Court of Oklahoma

Decided: January 7, 1913

Syllabus

¶0 1. FALSE IMPRISONMENT--Arrest of Passenger--Tickets. One entering a passenger train of a railroad company, claiming the right of transportation on a nontransferable ticket issued to another, cannot lawfully be arrested for refusal to pay cash fare upon the train auditor taking up the void ticket.

2. CARRIERS--Passengers-- Refusal to Pay Fare--Remedy--Ejection--Statutes. Section 1394, Comp. Laws 1909, provides that a passenger who refuses to pay his fare may be ejected from the vehicle by the carrier at any usual stopping place, or near some dwelling house.

3. FALSE IMPRISONMENT--Arrest of Passenger by Train Auditor--Scope of Authority--Carriers' Liability. A railway company is liable for the acts done by a train auditor acting within the scope of his general authority, in furtherance of the company's business, and for the accomplishment of the object for which the auditor was employed; and where the act done arises out of a controversy over the payment of fare, and consists in procuring an officer to make an arrest of one aboard the train on which the auditor is employed, and such arrest is wrongful, the company is liable in damages for the injuries sustained.

4. SAME--Damages--Elements of Damage. In an action for false arrest, the injured party is entitled to recover for the suffering, both bodily and mental, which the wrong may have occasioned. The injury done by being restrained of one's liberty is akin to that suffered from assault and battery.

5. TRIAL--Instructions--Request to Charge--Form. Where a special instruction is requested, it is the duty of counsel to prepare and submit to the court such desired instruction in writing, properly numbered and signed, and, upon timely delivery to the court, request that it be given. Upon a failure so to do, where the court has given general instructions applicable to the issues and the evidence, this court will not consider as error the court's failure to instruct of its own motion upon any given proposition.

6. FALSE IMPRISONMENT--Excessiveness--False Imprisonment of Passenger. Same as syllabus 12 in Choctaw, etc., Ry. Co. v. Burgess, 21 Okla. 653, 97 P. 271.

Error from District Court, Kingfisher County; A. H. Huston, Judge.

Action for damages by Hugh C. Radford against the Chicago, Rock Island & Pacific Railway Company. From a judgment in plaintiff's favor, defendant brings error. Affirmed.

C. O. Blake, H. B. Low, and F. L. Boynton, for plaintiff in error.

John T. Bradley, Jr. and G. L. Callaway, for defendant in error.

SHARP, C.

¶1 On December 3, 1908, plaintiff purchased of a ticket scalper in the city of Enid, for transportation to El Reno, the unused portion of a nontransferable ticket issued by the Southern Pacific Railway Company at Santa Barbara, Cal., on November 26, 1908, to one R. L. Denton, authorizing certain railroads therein named, including defendant, to carry the said Denton over their respective lines between said city of Santa Barbara and Oklahoma City, Okla. Upon plaintiff's presentation of said ticket to the train auditor, it was taken up and the regualr fare to El Reno demanded. This plaintiff at the time refused to pay, and shortly afterwards was placed under arrest by a deputy sheriff who was on board the train. It was charged by plaintiff that the arrest was procured by defendant company acting by and through its auditor. The petition further charged that said auditor, representing said defendant company, "without any right, cause, or excuse, unlawfully and wrongfully abused the plaintiff, and said in a loud tone of voice, which could be and was heard by all passengers in the coach in which plaintiff was riding, that the plaintiff had committed the crime of forgery, and said to plaintiff, 'I will see that you get two years for forgery for this' (meaning by such language to inform the plaintiff that the defendant, the Chicago, Rock Island & Pacific Railway Company, was going to have the defendant imprisoned for a term of two years on the charge of committing the crime of forgery), and said auditor, acting as the agent of the defendant, and for and on behalf of defendant, immediately, after using said language to plaintiff above set forth, informed one Ike Hawkins, a deputy sheriff of Kingfisher county, Okla., who was on said train returning to Kingfisher in charge of a prisoner, that said plaintiff had committed the crime of forgery, and maliciously, wrongfully, and unlawfully commanded and requested the said deputy sheriff to arrest the plaintiff for forgery, and to take him to Kingfisher and lock him up; that said deputy sheriff, acting for and under the instructions of the defendant, without the consent of the plaintiff, and without any cause or excuse, arrested the plaintiff, handcuffed him, restrained him of his liberty, and confined him in the seat with another prisoner that the (the said deputy) had in charge at said time; that, because of such wrongful and malicious conduct of the defendant, the plaintiff was, without his consent, kept under arrest by said deputy sheriff, and was by said deputy sheriff wrongfully and unlawfully handcuffed, confined, restrained, deprived of his liberty, and compelled to ride in a seat with said other prisoner from the village of Hennessey to Kingfisher; that, just before the train reached the station of defendant, at the said city of Kingfisher, the said defendant, through its said auditor, caused said deputy sheriff to release the plaintiff from restraint and imprisonment, and to unhandcuff him and give him his liberty." It was further charged that the plaintiff had not committed or attempted to commit the crime of forgery or any other crime on said train, or at any other time or place, and that his arrest and imprisonment was maliciously, wrongfully, and unlawfully caused by the defendant without excuse, and that thereby he was greatly injured and hurt, deprived of his liberty, injured in his health, caused great mental pain and suffering, and subjected to great ridicule, contempt, shame, humiliation, indignity, and disgrace. That the plaintiff was arrested by the deputy sheriff, and while in charge of the officer was taken from his seat to another seat in the rear of the coach and there kept for a time, handcuffed to another prisoner, was not denied. There was a conflict in the testimony as to the immediate cause of the arrest. Some of the witnesses testified that plaintiff was arrested by the officer, under the direction of the train auditor, on the charge of forgery; others testified that his arrest was on account of his having committed, or being about to commit, an assault on the auditor; while there was still other testimony tending to show that the arrest was caused on account of plaintiff's refusal to pay his fare. No formal charge for any offense was ever preferred against plaintiff; and, after he had complied with the auditor's demand and paid his fare, he was discharged from further custody.

¶2 It is urged by the plaintiff in error that it is not responsible for the wrongs committed by its auditor; and counsel cite in support of their position the case of Lake Shore & Michigan Southern Railway Co. v. Prentice, 147 U.S. 101, 13 S. Ct. 261, 37 L. Ed. 97. The rule announced in the Lake Shore case was followed by this court in Atchison, T. & S. F. Ry. Co. v. Chamberlain, 4 Okla. 542, 46 P. 499; Moore v. Atchison, T. & S. F. Ry. Co., 26 Okla. 682, 110 P. 1059; and Chicago, R. I. & P. Ry. Co. v. Newburn, 27 Okla. 9, 110 P. 1065, 30 L.R.A. (N.S.) 432. The Chamberlain case, as well as the Moore case, arose in Oklahoma Territory prior to statehood, while the Newburn case was begun in the courts of the Indian Territory in January, 1907. Therefore the rule announced in the Lake Shore case was controlling upon the courts in both territories, and upon this court. Section 1, Schedule, Williams' Ann. Const. Okla., sec. 365.

¶3 The facts charged in the Lake Shore case were similar, in many of their material aspects, to the case at bar. There the plaintiff, his wife, and a number of persons were passengers holding excursion tickets on a regular passenger train of the defendant railroad from Norwalk, Ohio, to Chicago, Ill. While en route, the plaintiff purchased of several passengers their return tickets, which had nothing on them to show that they were not transferable. The conductor of the train learning this, and knowing that plaintiff had been guilty of no offense for which he was liable to arrest, telegraphed for a police officer employed by the defendant, who boarded the train as it approached Chicago. The conductor thereupon, in a loud and angry voice, pointed out the plaintiff to the officer, and ordered his arrest; and the officer, by direction of the conductor, and without any warrant or authority of law, seized the plaintiff and rudely searched him for weapons in the presence of other passengers, hurried him into another car, and there sat down by him as a watch, and refused to tell him the cause of his arrest or to let him speak to his wife. While the plaintiff was being removed into the other car, the conductor, for the purpose of disgracing and humiliating plaintiff with his fellow passangers, openly declared that he was under arrest, and sneeringly said to the plaintiff's wife, "Where is your doctor now?" On arrival at Chicago, the conductor refused to let the plaintiff assist his wife with her parcels in leaving the train, or to give her the check for their trunk; and in the presence of passengers and others ordered him to be taken to the station house, to which he was subsequently taken and detained until the conductor arrived, when a false charge of disorderly conduct was preferred against him. Plaintiff gave bond and was released; and on appearing before the justice of the peace for trial on the day following, and no one...