Horgan v. Boston Elevated Ry. Co.

• Decision Date: 03 March 1911
• Citation: 208 Mass. 287,94 N.E. 386
• Parties: HORGAN v. BOSTON ELEVATED RY. CO.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

208 Mass. 287

94 N.E. 386

HORGAN v. BOSTON ELEVATED RY. CO.

Supreme Judicial Court of Massachusetts, Suffolk.

March 3, 1911

COUNSEL

Coakley & Sherman and William Flaherty, for plaintiff.

E. P Saltonstall and A. M. Beale, for defendant.

OPINION

BRALEY J.

The verdict for the defendant was ordered at the close of all the evidence, but as the jury could have disbelieved the defendant's witnesses so far so their testimony was material, the question is whether, upon the plaintiff's own narrative, he could prevail. Having entered the subway station of the defendant, and paid his fare with the intention of becoming a passenger, the plaintiff was lawfully on the premises, and if, while passing through the turnstile to take a car, its servants unlawfully molested him by physical restraint, the defendant is responsible for the injury. Lockwood v. Boston Elevated Railway, 200 Mass. 537, 544, 86 N.E. 934, 22 L. R. A. (N. S.) 488; Jackson v. Old Colony Street Railway, 206 Mass. 477 92 N.E. 725. Nor can the corporation escape liability even if they acted as special police officers appointed under the provisions of St. 1898, c. 282. By section 2 the defendant is made liable for their official misconduct, to the same extent as for their torts when acting as its employés. The plaintiff testified that two of the defendant's servants, one of whom was a special police officer, took him into custody, and brought him to the police station where he was charged by the officer with the offense of drunkenness. If the plaintiff was found intoxicated in a public place, 'or * * * any place * * * disturbing others by noise,' he could be arrested by a police officer without a warrant, and no question seems to have been made by the plaintiff at the trial, nor does he how contend, that the arresting officer was not qualified to act, or that the railway station was not a public place. Rev Laws, c. 212, § 36; Short v. Symmes, 150 Mass. 298, 23 N.E. 42, 15 Am. St. Rep. 204.

St 1905, c. 384, § 1, which was inserted by the Legislature in place of Rev. Laws, c. 212 § 37, govering proceedings after arrest for drunkenness without a warrant, required the officer to make complaint to the court having jurisdiction of the offense. The arrest is only preliminary, and although 'complaint' means the oral allegations by the officer which are to be reduced to writing in proper form by the magistrate or court, the officer is liable to an action for assault and false imprisonment unless he complies with the requirement. Hobbs v. Hill, 157 Mass. 556, 3i N.E. 862; Martin v. Golden, 180 Mass. 549, 62 N.E. 977; Brock v. Stimson, 108 Mass. 520, 11 Am. Rep. 390. But the plaintiff having admitted that when he arrived at the police station he was charged by the officer with 'the crime of drunkenness,' it is to be presumed, in the absence of any qualifying statement, that the statute was followed. No further steps were taken to bring him before the court, and having been discharged without arraignment or trial, the plaintiff ordinarily would have the right to go to the jury on the question whether when arrested he was intoxicated, with the burden of proof on the defendant to justify the arrest. Phillips v. Fadden, 125 Mass. 198; Hathaway v. Hatchard, 160 Mass. 206, 35 N.E. 857. The statute, however, while guarding against the abuse of criminal process, also confers the privilege on the party arrested after recovering from his intoxication to procure his discharge without the publicity of a trial. He may ask in writing for his release, and after certain preliminaries are complied with, the officer for the time being in charge of the place of defention may forthwith discharge him. St. 1905, c. 384, § 1. The paper put in evidence during the cross-examination of the plaintiff, and signed by him, was in terms such a request. It is not contended by the plaintiff, that his signature was procured by...