Davis v. Chicago, R. I. & P. Ry. Co.

• Citation: 182 S.W. 826
• Decision Date: 06 February 1916
• Docket Number: No. 11848.,11848.
• Court: Court of Appeal of Missouri (US)
• Parties: DAVIS v. CHICAGO, R. I. & P. RY. CO.

182 S.W. 826

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

No. 11848.

Kansas City Court of Appeals. Missouri.

February 6, 1916.

On Motion for Rehearing, February 21, 1916.

Appeal from Circuit Court, Jackson County; L. T. Dryden, Special Judge.

Action by John Davis against the Chicago, Rock Island & Pacific Railway Company. From a judgment for plaintiff, defendant appeals. Affirmed, on condition.

Paul E. Walker, of Topeka, Kan., and Sebree, Conrad & Wendorff, of Kansas City, Mo., for appellant. Robinson & Goodrich, of Kansas City, Mo., for respondent.

ELLISON, P. J.

Plaintiff's petition is in three counts. The first is for damages on account of defendant's servants refusing to permit plaintiff, with a proper ticket, to enter its cars as a passenger. The second is for damages resulting from defendant arresting plaintiff unlawfully, wrongfully, and maliciously, without any lawful warrant or authority, and putting him in jail for several hours in the nighttime. The third count dropped out of the case through a demurrer to the evidence thereon. There was a verdict and judgment for plaintiff on each of the other counts for both compensatory and punitive damages.

It appears that on October 30, 1913, plaintiff, intending to take passage on defendant's railroad at Lincoln, Neb., to his home at Belleville, on a train due to leave Lincoln at about 6 o'clock p. m., went to defendant's station in company with one Murphy, his brother-in-law, at about half past 5 o'clock, and purchased a ticket from defendant's station agent. The train was perhaps an hour late, but, when it came in, plaintiff attempted to get aboard one of the cars, when the porter in charge refused to let him enter, and told him to see the conductor. The conductor made no reply to his question. He went inside the station building to the ticket window and asked the agent why he was not allowed to get on the train. He wanted to know if there was anything the matter with his ticket. The agent told him there was not, and went with him out to the car where the porter was standing, and asked what was the reason plaintiff was not allowed to enter the car. The porter answered "to see the conductor." It seems that for some reason the train did not pull out of the station for an hour or more. During this time plaintiff made several calls at the ticket window, stating to the agent that it was necessary that he go home on that train, and insisting on knowing what was the reason he could not. At one of his calls the agent telephoned the police. In a few moments two came and passed by plaintiff on the platform. They went into the station and came out with the station agent, who pointed plaintiff out to them, and they seized him and hauled him to the police station, where he was locked in a cell and remained for several hours, when at about 1 o'clock in the night he was released, but directed to appear next morning at 9 o'clock. He appeared and demanded a trial, but he was told the matter was adjourned until 1 o'clock. He returned at that time, and, finding no one there, left, and the same day purchased another ticket and went home. It seems that on plaintiff being locked up Murphy immediately set to work in an effort to get him out of jail. He got some friends and a lawyer, roused the chief of police, and finally secured an order that he be released.

If the evidence in behalf of plaintiff is to be believed (and since the verdict it must be accepted as the facts in the case), plaintiff had purchased a ticket for Belleville, and was entitled to board the car which he attempted to enter, unless he was intoxicated; that being defendant's excuse for its servants not allowing him to do so. It was conceded at the trial by plaintiff that defendant's servants had a right to exclude an intoxicated person from the train, and instructions for each party submitted the question of plaintiff's condition in that respect, to the jury. There was abundant evidence to sustain the finding that he was not intoxicated.

The first complaint by defendant is directed at plaintiff's instruction No. 4, on the first count relating to the refusal to allow plaintiff to get upon the car and to carry him home. It stated that plaintiff was entitled to a finding in his favor on that count, if defendant," without any fault on plaintiff's part," refused to let him on the train. Defendant insists that, even though plaintiff was not intoxicated, yet, if its servants "in good faith believed he was," they were to be excused for refusing to carry him, and that the instruction omitted that defense. As to punitive damages that is correct. But, conceding that the instruction should have embodied such defensive theory, it was cured by defendant's instruction D, which stated such good-faith belief to be a defense, and directed that, if the jury found that to be a fact, to return a verdict for defendant on the first count. The decisions of the Supreme Court to this effect are collated and discussed in Holman v. City of Macon, 177 S. W. 1078. Again, in the case of Bettoki v. Coal & Mining Co., 180 S. W. 1021, announced December 6, 1915, and not yet officially reported, the same point is decided and further authorities cited.

Defendant next insists that no case was made under the second count based on the arrest and imprisonment of plaintiff. This insistence is founded upon the assertion that defendant's station agent had no authority to bind defendant in procuring plaintiff's arrest; in other words, that defendant was not liable for the wrong of the agent in procuring plaintiff's arrest and imprisonment. The law is that the master is liable for those acts of the servant which are performed while engaged within the scope of his employment. Haehl v. Railroad, 119 Mo. 325, 339, 24 S. W. 737; Meade v. Railroad, 68 Mo. App. 92; Grayson v. Railroad, 100 Mo. App. 60, 72, 71 S. W. 730; Dwyer v. Railroad, 108 Mo. App. 152, 159, 83 S. W. 303; Wood on Master and Servant, § 307. It is not necessary to the master's liability that the immediate wrongful act of the servant be done in the master's business; for that would imply that the master was prosecuting a wrongful business. If the act by the servant, though wrongful, misjudged, and unnecessary, is done in carrying out or prosecuting the duties which have been devolved upon the servant, the master is liable. Now, all know that it is the duty of a railway station agent to protect the station property falling under his immediate observation, where he reasonably may, and to protect those invitees rightfully assembled there, from unlawful disturbance. Suppose he should brutally assault a small child at the station who with its parents was awaiting a train, because he thought it was making a noisy disturbance. Would not the railway company be liable for his act? In the instance involved in this case, if plaintiff was intoxicated and making a disturbance by loud and profane language and other offensive deportment, or conduct, it was the agent's duty to call in the aid of an officer to remove or suppress him, and to that end to ask his arrest. But, if in the performance of his employment he pounced upon plaintiff who was sober and only making natural and rightful inquiries concerning his being refused entrance to the train for which he had bought the ticket but a few moments before, he committed a gross wrong for which his employer is liable. The case of Milton v. Railroad, 193 Mo. 46, 91 S. W. 949, 4 L. R. A. (N. S.) 282, and Gibson v. Ducker, 170 Mo. App. 135, 155 S. W. 462, are not like cases to this, and are not applicable.

The next objection is based on the proposition advanced by defendant that "one is not guilty of false arrest if a warrant is sued out within a reasonable time." In support of this there appears in the case some evidence that a warrant was issued for plaintiff on the next day. We can dispose of this point in this particular by the fact that the petition is not founded on a wrongful arrest without a warrant. His action is for a wrongful arrest and imprisonment. The manner of his arrest nor the technical observation of the forms necessary to legally justify an arrest do not concern him. His action is based on the theory that he, an innocent man, at the request of defendant's agent, was wrongfully apprehended and incarcerated.

But defendant's argument under this point comprehends a broader proposition than the statement made of it. The idea advanced is that plaintiff was arrested without a warrant, but within a reasonable time a complaint was filed and a warrant duly issued;...