Davis v. Chesapeake

• Decision Date: 26 January 1907
• Citation: 61 W.Va. 246
• Court: West Virginia Supreme Court
• Parties: Davis v. Chesapeake & Ohio Railway Co.

61 W.Va. 246

Davis

v.Chesapeake & Ohio Railway Co.

Supreme Court of Appeals of West Virginia.

Submitted September 6, 1906.

Decided January 26, 1907.

1. Instruction When Not Erroneous Court Duty Of.

An erroneous instruction to a jury, given for the plaintiff, is not prejudicial to the defendant if, after all the evidence was adduced, it would have been the duty of the court upon proper motion to direct a verdict for the plaintiff, (p. 248.)

2. Unlawful Offense to Property When.

To constitute the offense of unlawfully but not feloniously injuring property under section 27, oh. 145, Code 1906, the extent of the injury must be such as to impair the utility or diminish the value of such property, (p. 251.)

3. Railroad Company Damages for Act of Conductor.

When a railroad company is liable for the act of its train conductor in unlawfully arresting and imprisoning a person on the train, and such act is malicious, wanton, willful or reckless, the company is liable for exemplary or punitive damages, (p. 254.)

Appeal from Circuit Court, Kanawha County.

Action of trespass on the case by R. L. Davis against the Chesapeake and Ohio Railway Company. Judgment for plaintiff, and the Railway Company appeals.

Affirmed.

Avis, Jordon & Hardy, for defendant in error. Simms & Enslow, for plaintiff in error.

Cox, President:

The Chesapeake & Ohio Railway Company, a corporation, asks to reverse a judgment against it for $900.00 and costs, entered upon the verdict of a jury by the circuit court of Kanawha county, in an action of trespass on the case instituted by R. L. Davis. The plaintiff Davis claims, and offered evidence on the trial before the jury tending to prove, among other things, that on the 9th day of February, 1904, he became a passenger at Huntington, W. Va., on train number 6 of the defendant company, running east through Kanawha and Fayette counties; that he bought a ticket to Maiden in Kanawha county; that afterwards he decided to continue his journey to Paint Creek Junction, in said last named county; that he was unacquainted with the location of Paint Creek Junction; that he did not hear the name of that station called, and did not get off of the train at that point; that, after passing that station, the conductor requested payment of additional fare from the plaintiff; that plaintiff said he had paid his fare and refused to pay additional fare, and requested the conductor to let him get off of the train; that the conductor then placed plaintiff under arrest, and in charge of the brakeman and pumpman, employees of the de- fenclant company; that at Handley, in Kanawha county, the plaintiff asked those (or one of them) in charge of him, the conductor not then being in the car, to let plaintiff get off of the train, saying, "If you will let me off I will walk back, I will pay you to Handley", that the plaintiff was not permitted to get off of the train at Handley; that he was then taken on the train to Montgomery in Fayette county, and turned over to the chief of police of that town, by the conductor or by his direction; that plaintiff was placed by the chief of police in the "lockup" in said town until the next day, when the same train again arrived at Montgomery; that plaintiff was then brought before the mayor of said town and tried, the conductor appearing against him, and fined $10.00 and sentenced to imprisonment for ten clays; that plaintiff was then placed in said "lockup", and on the next day again brought before the mayor, discharged and his fine remitted. In some particulars the evidence is conflicting. The conductor testified that while the train was at Paint Creek Junction he said to plaintiff, "This is your station," and that plaintiff replied, "No it aint, I know the road, this aint Paint Creek." The conductor, when asked for the reason why he took plaintiff (and another with him) to Montgomery after leaving Paint Creek, said: "To get fare if they were going to ride; lots of people get on and pay to a station and then do not get off at that station." There are other features of the evidence which is unnecessary to detail.

There was a demurrer to the' declaration, which was overruled. The declaration contains but one count. No point was made in argument in this Court on the demurrer, and the declaration seems to be entirely sufficient as a declaration for false imprisonment.

Two grounds are relied on by defendant for reversing the action of the trial court in refusing to set aside the verdict and award a new trial. They are (1) that the court misdirected the jury in giving instruction number 1 for plaintiff; (2) that the damages found by the jury are excessive.

Instruction number 1 for the plaintiff is as follows:" The court instructs the jury that if they believe from the evidence that the plaintiff, without just cause, was arrested after he be- came a passenger on one of the defendant's trains, and during the time.that he was on such train either by the conductor in charge of said train, or by another employee of the defendant by order of the said conductor, that the act of the conductor, or of said employee acting under the orders of said conductor, was the act of the defendant, the Cheapeake & Ohio Railway Company." Instructions of like import seem to be popular with plaintiffs in cases of this kind. This is the third case in which such an instruction has been in review before this Court. The objection made to this instruction is, that it uses the words "just cause" instead of the words "probable cause," and for that reason is misleading. In Gillingham v. O. R. R. Co., 35 W, Va. 588, a similar instruction was approved, when considered with the other instructions given in that case. In Claibourne v. C. & O. Ry. Co., 46 W. Va. 363, a like instruction was condemned as misleading for the use of the words " just cause" instead of " probably cause." It is contended that this instruction does not extend to the liability of the defendant to the plaintiff. This may be true, according to its strict letter, but its ultimate object must be to fix a liability on the defendant; otherwise, why was it offered by plaintiff in this action, in which he seeks to recover from the defendant? We are inclined to the opinion that the only purpose and ultimate object of the instruction is to fix a liability on the defendant. By using the words "just cause," it was calculated to mislead. In order for an act of a conductor, in making an arrest as conservator of the peace, to be justifiable, it is not essential that there be just cause in the sense of actual cause for the arrest. The arrest is justifiable if there exists such a state of facts as constitute in law probable cause; or as frequently expressed, reasonable, probable cause; or justifiable, probable cause.

Although instruction number one is erroneous, was it prejudicial to defendant, or does this case come under the authority of that class of cases in which an erroneous instruction is harmless? It is contended that there is no evidence in this case showing probable cause justifying the arrest, and that the evidence does fix a liability on the defendant for the act of the conductor in arresting and imprisoning the plaintiff. If this position is correct, and if it would have been the duty of the court upon motion, after all the evidence was adduced, to direct a verdict for plaintiff upon the issue and an assessment of damages, then the instruction, although erroneous, was not prejudicial. Ketterman v. R. R. Co., 48 W. Va. 606; Tucker v. Ins. Co., 58 W. Va. BO; Davis v. Living, 50 W. Va. 431. This leads us to a consideration of the question of probable cause. According to the uncontroverted evidence the plaintiff, previous to the time of arrest, had been a passenger on defendant's train. He had failed to get off of the train at the station to which he had paid fare. He had continued on the train, and when requested to pay fare refused. In Yinal v. Core, 18 W. Va. 1, it was held that probable cause is a state of facts actually existing, known to the prosecutor personally or by information derived from others, which would lead a reasonable man of ordinary caution, acting conscientiously upon those facts to believe a person guilty of an offense justifying his arrest, and is a question of law for the court, The facts must be viewed from the standpoint of the prosecutor. Brady v. Stiltner, 40 W. Va. 289. The defendant contends that the question presented is this: "Had the conductor reasonable grounds to believe that the plaintiff was trying to beat his way without paying fare?" and some of the defendant's instructions were based on that theory. Viewing the evidence in the most favorable light for the defendant, and assuming that the plaintiff fraudulently continued on the train refusing to pay fare (which we do not decide), of what criminal offense was there probable cause to believe him guilty? If the plaintiff fraudulently remained on the train refusing to pay fare, he became a trespasser and might have been ejected from the train in a proper manner, no more force being used than was necessary for that purpose. Grogan v. C. & O. Ry. Co., 39 W. Va. 415; Moore on Carriers 553, 747.

It does not follow that, because the plaintiff was a trespasser in the eye of the law relating to a civil action for damages against him, he was guilty of a criminal offense. Various offenses relating to railroads and railroad property are provided by statutes, such as trespassing upon any railroad car by jumping on or off thereof (section 31a, chapter 145, Code 1906) maliciously destroying, removing or injuring railroad property (section 26, same chapter); riotous and dis- orderly conduct (section 31, same chapter). Others might be mentioned. It was not pointed out in argument, nor does it appear from our examination, that the facts in this case constitute probable cause to believe that plaintiff had committed an offense under any of the statutes relating specially to railroads or railroad...