Cordner v. Boston & M. R. R.

Citation72 N.H. 413,57 A. 234
PartiesCORDNER v. BOSTON & M. R. R.
Decision Date02 February 1904
CourtSupreme Court of New Hampshire

Exceptions from Superior Court.

Action by Robert Cordner against the Boston & Maine Railroad. Judgment for defendants, and plaintiff excepts. Exceptions overruled.

Trespass, for assault and false imprisonment. Upon a trial by jury at the October term, 1902, of the superior court, Young, J., presiding, a nonsuit was ordered, subject to the plaintiff's exception.

The testimony tended to prove the following facts: The defendants operate an electric street railway between Portsmouth and Exeter. One Hoyt was a conductor upon this railway. A petition in the name of the defendants, signed, "Boston & Maine Railroad, by Arthur F. Howard, Assistant Superintendent of the Portsmouth Electric Railway," was presented to the mayor and aldermen of the city of Portsmouth on August 1, 1901, for the appointment of certain of their employés upon the street railway— Hoyt among them—as special police officers, to act as railroad police, for the purposes and with the powers prescribed by chapter 160 of the Public Statutes. The petition was laid upon the table by the mayor and aldermen, and was not further acted upon. The clerk of the defendant corporation never filed with the clerk of the city a copy of any appointment of Hoyt as such officer. Hoyt was sworn by the city clerk under an arrangement made by the assistant superintendent of the street railway for swearing as special police officers all its conductors who were citizens of Portsmouth. The railroad furnished Hoyt a badge, inscribed, "Portsmouth Electric Railway, Special Police, No. 12." On September 6, 1901, Hoyt worked for the defendants as conductor between the hours of 7 and 8 o'clock in the morning, from half-past 12 to half-past 2 in the afternoon, and from half-past 6 to half-past 11 in the evening. He was not on duty or subject to the defendants' orders during the remainder of the day. About 15 minutes after 8 o'clock in the forenoon, while he was paying to the defendants' ticket agent, through the window of the ticket office in their station at Portsmouth, his collections of the day previous, he missed two silver dollars which he had placed on the shelf of the window; and he suspected the plaintiff, who approached the window to make an inquiry, of taking them. He immediately reported the loss to a clerk of the assistant superintendent of the street railway, and to the city marshal of Portsmouth. He went in search of the plaintiff for the purpose of recovering the money, and between 9 and 10 o'clock saw him upon an electric car destined to Exeter, and got upon the car and told him of his suspicion. The plaintiff denying that he had taken the money, Hoyt telephoned the clerk above mentioned that he had found the plaintiff, and asked the clerk to inquire of the city marshal if he had authority to bring the plaintiff back to Portsmouth. The clerk' communicated with the marshal, and, by his instruction, directed Hoyt to bring the plaintiff to his office. The plaintiff objecting, Hoyt exhibited his badge and told the plaintiff he would be obliged to return, whereupon he accompanied Hoyt to the marshal's office. After a brief conference with the marshal, the plaintiff was allowed to go. The money has not been recovered, and its loss fell upon Hoyt. The plaintiff testified that he did not take it The action was based upon Hoyt's acts.

Ernest L. Guptill, for plaintiff. John S. H. Frink and John W. Kelley, for defendants.

CHASE, J. The mere fact that Hoyt was the defendants' servant is not sufficient to make the defendants answerable for his arrest of the plaintiff. They are not liable unless they directed him to make the arrest, or unless in so doing he was engaged in their business, and acting within the scope of his employment as their servant, or unless they have ratified his act Wilson v. Peverly, 2 N. H. 548; Grimes v. Keene, 52 N. H. 330; Andrews v. Green, 62 N. H. 436; Searle v. Parke, 68 N. H. 311, 34 Atl. 744; Rowell Y. Railroad, 68 N. H. 358, 44 Atl. 488; Turley v. Railroad, 70 N. H. 348, 47 Atl. 261. The first of these contingencies may be dismissed with the remark that it appears that he acted under the direction of the city marshal, instead of the defendants. The record contains no fact tending to show that the defendants have ratified the arrest as...

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19 cases
  • Layne v. Chesapeake & O. Ry. Co.
    • United States
    • Supreme Court of West Virginia
    • 23 Noviembre 1909
    ...... Co., 65 W.Va. 233, 64 S.E. 18; Healey v. Lothrop, 171 Mass. 263, 50 N.E. 540; Tucker v. Railway Co., 69 N. J. Law, 19, 54 A. 557; Cordner v. Railway Co., 72 N.H. 413, 57 A. 234; Foster v. Railway Co., 140 Mich. 689, 104 N.W. 380; Tyson v. Bauland Co., 186 N.Y. 397, 79 N.E. 3, 9 ... Co., 48 Minn. 378, 51 N.W. 122, 15 L.R.A. 399;. Buckley v. O1d Colony Ry. Co., 161 Mass. 26, 36 N.E. 583; Allerton v. Boston, etc., Ry. Co., 146 Mass. 241, 15 N.E. 621; Cincinnati, etc., R. Co. v. Carper, 112 Ind. 26, 13 N.E. 122, 14 N.E. 352, 2. Am.St.Rep. 144; Drew ......
  • Layne v. Chesapeake & O. Ry. Co
    • United States
    • Supreme Court of West Virginia
    • 23 Noviembre 1909
    ...64 S. E. 18; Healey v. Lothrop, 171 Mass. 263, 50 N. E. 540; Tucker v. Railway Co., 69 N. J. Law, 19, 54 Atl. 557; Cordner v. Railway Co., 72 N. H. 413, 57 Atl. 234; Foster v. Railway Co., 140 Mich. 089, 104 N. W. 380; Tyson v. Bauland Co., 186 N. Y. 397, 79 N. E. 3, 9 L. R. A. (N. S.) 267;......
  • McKain v. Baltimore & O. R. Co.
    • United States
    • Supreme Court of West Virginia
    • 2 Marzo 1909
    ...a private servant. Healey v. Lothrop, 171 Mass. 263, 50 N.E. 540; Tucker v. Erie Ry. Co., 69 N. J. Law, 19, 54 A. 557; Cordner v. Railway Co., 72 N.H. 413, 57 A. 234; Foster v. Railway Co., 140 Mich. 689, 104 N.W. Tyson v. Bauland Co., 186 N.Y. 397, 79 N.E. 3, 9 L. R. A. (N. S.) 267. But su......
  • Mckain v. Baltimore & O. R. Co
    • United States
    • Supreme Court of West Virginia
    • 2 Marzo 1909
    ...A. (N. S.) 267; Healey v. Lothrop, 171 Mass. 263, 50 N. E. 540; Tucker v. Erie Ry. Co., 69 N. J. Law, 19, 54 Atl. 557; Cordner v. Railway Co., 72 N. H. 413, 57 Atl. 234; Thomas v. Can. Pac. R. R, Co., 14 Ont. L. Rep. 55, 8 Am. & Eng. Ann. Cas. 324; Daniel v. Railroad Co., 136 N. C. 517, 48 ......
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