Cincinnati, N.O. & T.P. Ry. Co. v. Cundiff

• Decision Date: 09 November 1915
• Citation: 179 S.W. 615,166 Ky. 594
• Parties: CINCINNATI, N. O. & T. P. RY. CO. ET AL. v. CUNDIFF.
• Court: Kentucky Court of Appeals

179 S.W. 615

166 Ky. 594

CINCINNATI, N. O. & T. P. RY. CO. ET AL. v. CUNDIFF.

Court of Appeals of Kentucky.

November 9, 1915

Appeal from Circuit Court, Boyle County.

Action by W. C. Cundiff against the Cincinnati, New Orleans & Texas Pacific Railway Company and others. Judgment for plaintiff and defendant Railway appeals. Reversed.

Nelson D. Rodes and Charles H. Rodes, both of Danville, and John Galvin, of Cincinnati, Ohio, for appellant.

Robert Harding, of Danville, Charles Montgomery, of Liberty, and Emmet Puryear and John W. Rawlings, both of Danville, for appellee.

NUNN J.

This is an appeal from a judgment rendered against the appellant railway company, Samuel Morrow, and C. N. Mitchell in favor of appellee for the sum of $4,000. The petition charges that the railway company and its servants, the codefendants wrongfully, maliciously, and forcibly ejected him from its train, and caused him to be taken by other railroad servants to a police station at Ludlow and there locked up. The defendants filed separate answers, in which they alleged that Mitchell and Morrow were officers of the commonwealth, and not servants or employés of the railroad. Mitchell and Morrow admitted that they took the appellee, Cundiff, off of the train and delivered him to other police officers at Ludlow Ky. but they say that, acting as police officers of the commonwealth, they arrested him because he was drunk, using profane language, and behaving in a disorderly manner on the train. They claim to have acted in good faith and upon probable cause, and without malice toward appellee. In brief, the facts are as follows:

Appellee was the county court clerk of Casey county, and a candidate for re-election. In the latter part of August, 1913, a considerable number of men from Casey and surrounding counties went to Cincinnati on a Sunday excursion. Appellee lived at Liberty, the county seat, which was 17 miles from Moreland, the nearest station on appellant's road. In company with many others, they left Liberty on Saturday night about 11 o'clock, and drove overland in order to reach Moreland at 5 o'clock Sunday morning, when the excursion train was due. There was jamaica ginger in the party before they left Liberty, and it is inferable from the record that on the road to Moreland, and on the train to Cincinnati, members of the party were drinking intoxicants of some kind, although there is no evidence that Cundiff partook until he reached Cincinnati. Just why he went to Cincinnati on a Sunday excursion is not a necessary, if a fair, inquiry. He attempts to excuse the trip, however, by stating that his brother-in-law lived there, and also calls attention to the fact that a good many voters from his county were going, and he wanted to "electioneer" with them. He admits taking several drinks of beer in Cincinnati, but does not fix the number. His friends count at least six that he drank. How many of these are in addition to those admitted by Cundiff the record leaves in doubt. He maintains, however, that he was not drunk, and his friends, certainly not less drunk, corroborate him. According to his story, he was worn out by the time the train was ready to leave Cincinnati that evening at 6 o'clock, and quite naturally his party were at the station a long while--perhaps an hour--before starting time. Before the train gates were opened they made one or more trips to a nearby saloon, where appellee admits taking a final glass of beer, and Waldon, his closest companion, bought a flask of brandy. When the gates were opened they got aboard the train. It consisted of 14 cars. Appellee and his companions got on the second car from the rear end. It was August, the shed was close, the crowd was large, and the train was next to a stone wall where the sun had been shining all day. Of course, it was oppressive in the car, and from these circumstances it is easy to understand how, in connection with being up all night and going all day in a pair of new shoes, appellee felt the need of rest. He says as much, and immediately they were seated he put up his hat, pulled off his coat, removed his collar, unbuttoned his shirt, and took off his shoes. In order that he might not be disturbed, he gave his ticket to Waldon, his companion, with request that he hand it to the conductor. Thus relieved and so clad, he went to sleep. He never knew when the train started. In fact, the first thing he says that he did know was when, in the fifth car from the engine, Morrow caught him by the collar and jerked him out of the seat, and, with the help of Mitchell, marched him to the baggage car, where there were four other drunken passengers. Cundiff says he asked Morrow: "What is the matter? What have I done? What are you doing?" Morrow replied: "I am an officer." Cundiff says: "I am clerk of the county court." To which Morrow replied: "Go on there; I will take care of you." When the train reached Ludlow, Cundiff and the other men in the baggage car were taken off. Cundiff says he then appealed to Morrow for release on the ground of politics and former association with some of Morrow's relatives, but Morrow was obdurate. Cundiff then discovered that he was without coat, collar, hat, or shoes, and asked for time to go aboard to get them. The train was held while Morrow went back for them, but he was only able to find the coat and hat. Cundiff and the baggage car outfit were delivered into the hands of an alleged police officer at Ludlow, while the other men from Casey continued their journey homeward. With Cundiff in his stocking feet, they were marched some 800 yards to the police station. Cundiff says the other men were put in a cell, but they left him out in the corridor and locked him up. As to being locked up anywhere, no witness supports him, and appellant's witnesses deny it. The mayor came down in a short time and looked him over, and said: "I find no fault in this man." According to precedent, ancient, if not honorable, he desired to wash his hands of the affair by directing his release. To this Cundiff demurred, and insisted that a charge be preferred, and a day fixed for trial, and that he be admitted to bail. After some argument a day was set, and Cundiff prepared an appearance bond in his own hand, which a sympathizing bystander signed. On the day fixed for trial Cundiff appeared, the case was heard, attorney for the railroad took a part, and Cundiff was acquitted.

Three of Cundiff's companions claim to know when Morrow arrested him, but none of them followed to see what became of him. With Cundiff, they occupied seats near the end of the car, facing each other. These men testified that Cundiff went to sleep and never moved from his place until he was pulled out of it by Morrow. They insist that he was not drunk or offensive or creating any sort of disturbance. Waldon, his closest associate, was removed to the baggage car soon after Cundiff was taken off, and he is frank enough to say:

"You see the fact of the business is when they taken Mr. Cundiff, you know, you see I had lost sleep all night, had been up, and was wore out and sleepy, and I just simply laid down and went to sleep. Some of the gentlemen just taken me over in the baggage car, and I slept in there, and then I went back to my car."

He explains that all his brandy was gone when he returned.

Morrow testified that he first saw Cundiff and Waldon together that evening as they came through the station gate "walking and staggering along down the train." They got aboard the twelfth car; that is, the second from the rear. Morrow was acting as a police officer (whether rightfully so is another question). The whole length of the train was his beat. He next saw Cundiff out in the aisle near the middle of the car. A man was trying to get by him. Cundiff was making secret order signs, and, not receiving a proper response, remarked that any man that did not belong to his secret order "is a ______ fool." Morrow caught him by the shoulder and told him he was an officer, and cautioned him of the presence of ladies, and asked him to take his seat and get out of the way. Cundiff wanted to talk to him about his secret order, and, upon receiving information that Morrow did not belong, expressed the opinion: "Well, ______, you have lost the best years of your life." Morrow shoved him down in the seat and went on to the rear of the train. Coming back in three or four minutes, he found him two cars ahead, where he was falling over, and making signs to, an old gentleman. He was advising the old man, with some profanity, to "join as soon as possible." Morrow warned him that if he did not sit down and keep quiet he would have to arrest him. Morrow went on to the front of the train, and then made another round trip without encountering Cundiff. On his next trip he found Cundiff in the fifth car from the engine, seated, and cursing because he could not find a member of his secret order on the train. Morrow then arrested him, and deputized Mitchell, a railroad employé, to take him to the baggage car. Morrow thus described his appearance:

"He didn't have any coat, and his shirt was open. His person was exposed. He did not look like he had combed his head for some time. His hair was stringing around his face. The smell of beer was strong on his breath, * * * and his shirt tail was out."

Mitchell, the old man, and other passengers corroborate Morrow in many of these details, and it is established beyond controversy that the arrest occurred in the fifth car from the engine.

Reversal is asked on several grounds: (1) Morrow acted as a police officer of the commonwealth, and Mitchell was his deputy, and the court erred in rejecting evidence tending to show Morrow's power so to act and deputize Mitchell; (2) the court erred in giving...