Ft. Smith & Van Buren Dist. v. Kidd

• Decision Date: 08 May 1922
• Docket Number: (Nos. 354, 359.)
• Citation: 241 S.W. 374
• Parties: FT. SMITH & VAN BUREN DIST. et al. v. KIDD.
• Court: Arkansas Supreme Court

241 S.W. 374

FT. SMITH & VAN BUREN DIST. et al. v. KIDD.

(Nos. 354, 359.)

Supreme Court of Arkansas.

May 8, 1922.

Rehearing Denied June 12, 1922.

Appeal from Circuit Court, Crawford County; Jas. Cochran, Judge.

Action by Clarence Kidd against the Ft. Smith & Van Buren District and the Ft. Smith Light & Traction Company. From a judgment for plaintiff, defendants appeal. Judgment against defendant District reversed and dismissed, judgment against Traction Company affirmed.

Jas. B. McDonough and Hill & Fitzhugh, all of Ft. Smith, for appellants.

Webb Covington, of Ft. Smith, for appellee.

SMITH, J.

Appellee sued the Ft. Smith and Van Buren district, hereinafter referred to as the district, and the Ft. Smith Light & 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 Ft. 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 fares from the passengers while doing so. This fare, if paid in cash, is 5 cents; but books are sold containing coupons, each of which is good for one passage across the bridge, at a cost of 1¼ 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 and carried by Arnold to the end of the line, and, from there Arnold carried plaintiff before a justice of the peace, after having had 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. 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, §§ 5, 6, and 7. See Helena Water Co. v. Helena, 140 Ark. 597. 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...