Fort Smith & Van Buren District v. Kidd

• Court: Arkansas Supreme Court
• Writing for the Court: SMITH, J.
• Citation: Fort Smith & Van Buren District v. Kidd, 241 S.W. 374, 153 Ark. 489 (Ark. 1922)
• Decision Date: 08 May 1922
• Docket Number: 354,359
• Parties: FORT SMITH & VAN BUREN DISTRICT v. KIDD

241 S.W. 374

153 Ark. 489

FORT SMITH & VAN BUREN DISTRICT v. KIDD

No. 354, 359

Supreme Court of Arkansas

May 8, 1922

Appeal from Crawford Circuit Court; James Cochran, Judge; reversed and affirmed.

Judgment affirmed in part and reversed in part.

James B. McDonough and Hill & Fitzhugh, for appellants.

No authority is conferred upon the commissioners of the district to authorize an arrest, and it had no power to do so. Improvement district cannot be made liable for a tort. 94 Ark. 380; 119 Ark. 166; 115 Ark. 88; 114 Ark. 366; 110 Ark 416; 118 Ark. 1; 131 Ark. 286; 170 S.W. 1012; L. R. A 1918-B, p. 1010; 104 S.E. 309.

The coupon ticket presented by plaintiff was void. Michie on Carriers, p. 1627, sec. 2224.

Neither the district nor Taylor, its servant, who furnished the information upon which the arrest was made, was liable. No false imprisonment was proved. 95 Ark. 227; 12 A. & E. Enc of L. p. 739; 9 Cyc. p. 330. Before false imprisonment can be made out it must be proved that the arrest was without legal authority. 92 Ark. 128; 143 Ark. 394. The act being committed in the presence of the officer, he was authorized to make the arrest without a warrant. C. & M. Dig. sec. 2904. There is no liability on the officer. 34 Ark. 105. He was not acting for either appellant, hence no liability. 106 Ark. 109. There can be no presumption of authority from the district or the company. 65 Ark. 144; 79 Ark. 85. A carrier is not liable for false imprisonment, even if a special agent exceeded his authority. 84 Ark. 193; 87 Ark. 524; 119 Ark. 28; 135 Ark. 76; 218 S.W. 678; 126 Ark. 260.

The relation of master and servant did not exist between the company and the bridge collector, who caused the arrest, and the doctrine of respondeat superior could not apply. 1 Labatt, Master & Servant, sec. 2- 20; L. R. 6 Q. B. Div. 532; 22 Sou. 403; 52 Am. Rep. 129. A distinguishing feature of the relation of master and servant is that the employer retains the control over the mode and manner of doing the work under the contract of living. 38 P. 320. The contract between the district and the company provides that the company shall have no control over the collectors; their services were performed for the district. Therefore the company was not liable for the act of the commissioners. 28 L. R. A. 552; 38 L. R. A. (N. S.) 379; 57 Ark. 615; 98 Ark. 399; 87 Ark. 524. Conceding, for the sake of argument, that the collector was in the employ of the company, it would still not be liable, as the arrest was not shown to have been within the scope of his employment. 87 Ark. 524; 65 Ark. 144; 135 Ark. 76.

Webb Covington, for appellee.

The arrest of appellee having been made by an employee of the district and company, it was incumbent on them to show justification. 105 Ark. 619. The agent was acting within the apparent scope of his authority and the principals were liable for his wrongdoing. 97 Ark. 24; 135 Ark. 80; 78 Ark. 553. The business of collecting fares was a joint undertaking, and both appellants were liable.

SMITH, J. MCCULLOCH, C. J., dissenting.

OPINION

SMITH, J.

Appellee sued the Fort Smith & Van Buren District, hereinafter referred to as the district, and the Fort Smith Light and Traction Company, hereinafter referred to as the company, to recover damages for false arrest and imprisonment. He recovered judgment in the sum of $ 1 against both defendants, and both have appealed.

Appellee took passage in Fort Smith for Van Buren on one of the company's cars, and paid the fare, which is collected before crossing the bridge over the Arkansas River connecting the two cities. A different collector collects the fare over the bridge, and it is the custom for this officer to ride over the bridge on each car crossing it and to collect the fare from the passenger while doing so. This fare, if paid in cash, is five cents; but books are sold containing coupons, each of which is good for one passage across the bridge, at a cost of one and one-fourth cents for each coupon. These coupons are void if detached, and the collectors are forbidden to accept them for fares if detached. Plaintiff, in crossing the bridge, tendered a detached coupon, which Taylor, the collector, refused to accept, and as plaintiff declined to pay the cash fare he was ejected and arrested when the car reached the Van Buren side of the river.

The plaintiff testified that, upon reaching the opposite side of the river, the car was stopped and Taylor called to one Arnold, a deputy sheriff, who appears to have been stationed on the bridge for the purpose of assisting in the collection of fares. Taylor called Arnold into the car, where plaintiff was arrested by Arnold and carried to the end of the line, and from there Arnold carried plaintiff before a justice of the peace, after having held him in custody for about two hours, and a charge of disturbing the peace by refusing to pay fare was preferred. No contention is made that plaintiff disturbed the peace or did anything else to be ejected for except to refuse to pay the bridge fare; and the charge preferred before the justice of the peace was later dismissed. When Arnold took plaintiff into custody, he asked him pleasantly if he was about to make a test case, and plaintiff disclaimed any such purpose.

The bridge over which the company operates its cars was built by an improvement district under an act of the General Assembly, which has been construed by this court in the cases of Shibley v. Ft. Smith & Van Buren District, 96 Ark. 410, 132 S.W. 444; Nakdimen v. Ft. Smith & Van Buren Bridge District, 115 Ark. 194, 172 S.W. 272; Ft. Smith Light & Traction Co. v. Williams, 149 Ark. 159, 231 S.W. 890.

There was offered in evidence the contract under which the company acquired the right to use the bridge in crossing the river. The principal provisions of this contract are set out in the case of Ft. Smith Light & Traction Co. v. Williams, supra, and need not be repeated here. In construing the contract in that case we said:

"We shall not undertake to analyze and comment upon the various provisions of the contract. It evidenced an agreement by which the bridge district is to receive a certain sum of money from the traction company for the right granted the latter to run its cars for the transportation of passengers over the bridge. The original act expressly authorized the bridge district to charge the traction company for its right-of-way over the bridge. Nakdimen v. Ft. Smith & Van Buren Bridge District, 115 Ark. 194, 172 S.W. 272. By the same token the traction company, having thus acquired the right-of-way over the bridge, could exercise it with all of its privileges, one of which was to charge passengers who used its facilities. The amount charged the traction company by the district is a definite and fixed sum ascertained and measured by the number of passengers which the traction company transports in its cars over the bridge and the amount which the traction company charges each passenger for such transportation. The traction company is a common carrier, and had a right to charge those whom it transported on its cars across the bridge according to the tariff of rates filed with the Corporation Commission. Act 571 of the Acts of 1919, p. 411, secs. 5, 6 and 7. See Helena Water Co. v. Helena, 140 Ark. 597, 216 S.W. 26. The money derived from this source, through the sale and use of tickets, and by the payment and collection of the cash fares in the absence of tickets, was primarily the property of the traction company and not of the bridge district. It became the property of the bridge district only because under the terms of the contract the traction company agreed to let the bridge district collect and use it in payment for the right-of-way privilege granted the traction company by the bridge district, and because the bridge district agreed to accept it as such."

It is true the contract provides that the district shall employ and control and discharge the officers who collect the bridge fares; but this is done for the benefit of both defendants. In fact, the contract requires the traction company to assist in the collection of the bridge fares, and to furnish free transportation to the officers collecting them, and to pay $ 50 per month when only one collector is employed and to pay $ 100 per month when two are employed. In other words, the traction company is the carrier which renders the service for which the charge is made, and it makes the charge; but the fare is collected by the district for its use and benefit and as rental for the use of the bridge.

Under these facts we are of opinion that the officers engaged in collecting the fares are the servants of both defendants, and ordinarily each defendant would be liable for the conduct of these agents while acting within the line of their duty and within the scope of their authority. But it appears from the decisions of this court above cited construing the act creating the bridge district, that the district is one of those agents of the State to which certain powers and duties of a public nature have been delegated and which can exercise only the corporate functions which the State has expressly conferred upon them. Of such district it was said in the case of Board of Improvement Sewer District No. 2 v. Moreland, 94 Ark. 380, 127 S.W. 469: "Public quasi corporations are created with limited statutory powers, and the general rule, as respects the question of liability to individuals for the negligence of their officers or agents, is that no such liability attaches unless expressly provided by statute. 1 Beach on Public Corporations, §§ 4, 262, 263; Mahoney v. Boston, 171 Mass. 427, 50 N.E. 939." Other cases to the same effect are: Jones v. Sewer Imp. Dist., 119 Ark. 166, ...