Dwyer v. St. Louis Transit Co.

• Decision Date: 15 November 1904
• Citation: Dwyer v. St. Louis Transit Co., 83 S.W. 303, 108 Mo. App. 152 (Mo. App. 1904)
• Parties: DWYER v. ST. LOUIS TRANSIT CO.
• Court: Missouri Court of Appeals

83 S.W. 303

108 Mo. App. 152

DWYER v. ST. LOUIS TRANSIT CO.

St. Louis Court of Appeals. Missouri.

November 15, 1904.

STREET RAILWAYS — WRONGFUL ARREST OF PASSENGERS — LIABILITY OF COMPANY — ACT OF CONDUCTOR — AUTHORITY — MALICIOUS PROSECUTION — INSTRUCTIONS — EVIDENCE — EXPRESS MALICE — HARMLESS ERROR.

1. A street railway conductor demanded a second fare from a passenger, who refused to pay or get off. Later the passenger attempted to alight, but was prevented by the conductor, who called a police officer, in the car, to arrest the passenger. The officer refused unless the conductor would prefer a charge, which he agreed to do. When the car reached a police station, the conductor went to it, and made a formal charge of disorderly conduct against plaintiff, who was tried and acquitted. Held, that the charge was made by the conductor while in the discharge of his duties, making the company liable for malicious prosecution.

2. Though Rev. St. 1899, §§ 1074, 1163, only authorizes a street railway conductor in charge of a car to eject a passenger for refusing to pay fare, for disorderly conduct, etc., a conductor can call on a police officer to arrest a passenger, when necessary for the protection of other passengers; and the company is liable to a passenger wrongfully arrested on charges preferred by the conductor while acting within the scope of his authority.

3. Where a street railway company was liable to a passenger wrongfully arrested on charges preferred by a conductor, error in admitting evidence that the company ratified the conductor's act was harmless.

4. An instruction which refers to the petition for the purpose of identifying a thing about which an issue was raised is not open to the objection that it refers the jury to the petition to ascertain what the issues are.

5. Where the servant of a corporation acts maliciously when acting within the scope of his authority, the corporation is chargeable with malice.

6. An instruction in an action for malicious prosecution authorizing the jury to assess the damages in such sum as will compensate plaintiff for "any shame, mortification, mental anguish and pain, and injury to feelings," is not open to the objection that it authorizes a recovery for physical pain.

7. Where, in an action for malicious prosecution, the evidence shows that, without any cause, plaintiff was arrested, charged with an offense, and forced to undergo a trial, express malice is shown.

Appeal from St. Louis Circuit Court; Horatio D. Wood, Judge.

Action by Walter P. Dwyer against the St. Louis Transit Company. From a judgment for plaintiff, defendant appeals. Affirmed.

Boyle, Priest & Lehman, for appellant. H. Chouteau Dyer and W. H. Cocoran, for respondent.

BLAND, P. J.

On April 16, 1903, the plaintiff, at Chestnut and Fourth streets, in the city of St. Louis, took passage on one of defendant's Eighteenth street cars to go to the Four Courts, in said city, where he had been subpœnaed to appear as a witness. He paid his fare, but remained on the rear platform, smoking a cigar. When the car reached Ninth street, the conductor demanded fare of him. Plaintiff replied that he had paid his fare when he first got on the car. The conductor insisted that he had not, and told him he would have to pay his fare or get off. Plaintiff refused to pay a second fare or to get off. The altercation was not in angry tones, but was heard by passengers sitting in the rear of the car. When Eleventh street was reached, plaintiff undertook to get off, but the conductor barred his way and told him he must pay his fare. Plaintiff insisted that he had paid his fare once, and would not pay it again. The conductor then called a police officer, who was sitting inside the car, and told him that plaintiff would not pay his fare, and he wanted him arrested. The officer told the conductor he would not arrest plaintiff unless he (the conductor) would make a formal charge against him. The conductor said he would do that, and, when the Four Courts building was reached, the policeman and the conductor got off the car, followed by the plaintiff and his friend. Plaintiff, in company with his friend, started to go up the steps of the Four Courts to the court of criminal correction, but was stopped by the police officer, who told him he would have to go before the captain (meaning the captain of the police district in which the arrest was made). The four then went into the police station, where the conductor lodged with the captain of police a formal charge against plaintiff of disturbing the peace; and the plaintiff was then offered the alternative of giving bond, with security, in the sum of $500, for his appearance before the police court on the 18th day of April to answer the charge the conductor had made against him, or be committed to prison. Plaintiff gave bond, and on the 18th appeared before the police court, and, after entering his plea of not guilty, was put upon trial, which resulted in his acquittal. The charging part of the petition is as follows: "Plaintiff states that while said car, in charge of said conductor, was proceeding south on said Ninth street to Clark avenue, and thence west on said Clark avenue to a point in the middle of the block between Eleventh and Twelfth streets, in said city, said conductor in charge of said car continued to demand of plaintiff a fare of five cents, in loud, angry, and threatening tones of voice, in the presence and hearing of many people in and upon said car; that, when said car reached said last above mentioned point, it was ordered stopped by the said conductor in charge of the same, and said conductor falsely, maliciously, and without probable cause whatsoever, at his own instance and request, caused and procured plaintiff to be arrested by said police officer aforesaid, against plaintiff's will, and in the presence and hearing of many people in and upon and about said car, to the great humiliation and mortification of plaintiff; and said police officer, upon the instigation and demand of said conductor in charge of said car, then and there arrested plaintiff, and took plaintiff to the police station in the Four Courts, and said conductor then and there, willfully, maliciously, and without probable cause whatsoever, charged plaintiff with disturbing the peace, and then and there caused a police summons to issue against said plaintiff, embodying said charge. Plaintiff further states that he was then and there compelled to furnish a bond, and did so furnish a bond, to assure his appearance in the First District police court of said city on or about the 17th day of April, 1903; that plaintiff appeared in said court on or about said last mentioned date, then and there to answer said charge of disturbing the peace. Plaintiff further states that a trial was had on said issue, and that he was then and there on or about said last-mentioned date discharged and released from said charge aforesaid." Verdict and judgment were for plaintiff for $25 actual and $50 punitive damages.

1. Defendant strenuously contends, first, that there is no evidence that it was within the scope of the authority of the conductor to cause the arrest of the plaintiff; and, second, that the evidence shows that the actual arrest was not made until the plaintiff left the car, and that the conductor left...