Johnson v. Norfolk & W. Ry. Co

• Decision Date: 08 October 1918
• Docket Number: (No. 3522.)
• Citation: 97 S.E. 189
• Court: West Virginia Supreme Court
• Parties: JOHNSON. v. NORFOLK & W. RY. CO.

97 S.E. 189

JOHNSON.

v.NORFOLK & W. RY. CO.

(No. 3522.)

Supreme Court of Appeals of West Virginia.

Oct. 8, 1918.

(Syllabus by the Court.)

[Ed. Note.—For other definitions, see Words and Phrases, First and Second Series, Arrest.]

Error to Circuit Court, Mingo County.

Action by Cora L. Johnson against the Norfolk & Western Railway Company. Judgment for plaintiff, and defendant brings error. Affirmed.

Holt, Duncan & Holt, of Huntington, and Theodore W. Reath, of Philadelphia, Pa., for plaintiff in error.

Strother, Taylor & Taylor, of Welch, and Wiles & Bias, of Williamson, for defendant in error.

POFFENBARGER, P. The principal inquiries arising upon this writ of error to a judgment for $1,000, obtained in an action for damages for an alleged false arrest and malicious prosecution, are: (1) Whether the evidence tends to prove such facts and circumstances as legally justified the jury in finding the plaintiff had been arrested; and (2) if so, whether the acts and conduct of the defendant's station agent were of such character as to make out a case of participation on the part of the defendant, in the arrest, or of instigation thereof.

The controversy had its origin in the accidental breaking of a quart bottle filled with whisky, in one of the plaintiff's two suit cases delivered to the defendant at its station at the city of Williamson, Mingo county, and there checked by it, as personal baggage of the plaintiff to be carried to another station known as Davy, McDowell county, from which point she intended to go on a visit to her mother in Wyoming county. A train manifest delivered with the baggage to the station agent at Davy, by the baggageman and signed by the baggagemaster at Williamson, said:

"This suit case fell from the top of a trunk and whisky run out of same as if though it was full of whisky."

On her arrival at Davy, the plaintiff, without having called for her baggage, went to a hotel at which she intended to spend the night, and sent the porter to the station with her checks for the baggage. In a few minutes, he returned and reported the refusal of the agent to surrender it. Thereupon she went with the porter to the station and demanded it. Fearing delivery of the baggage, with knowledge that it contained liquor might be an act in violation of his duty or orders, or one subjecting the railroad company or himself to criminal liability, the agent had wired his superior officer for instructions as to what to do with it, and had not as yet had any response to his telegram, nor did he receive one until the next day at about noon and after completion of the transactions relied upon as constituting a false arrest or imprisonment. When it came, it was unsatisfactory in another respect. It merely asked the agent what he had done with the baggage. Upon noncompliance with the plaintiff's demand for her baggage, a controversy arose between her and the agent, in the course of which she expressed her intention to call an attorney from Williamson for advice, whereupon he either threatened to call an officer, or she requested 1dm to call him, after having been advised by him that there was one in town. As to this there is a conflict in the testimony. However, the suggestion may have arisen, he sent a messenger for the officer, who returned without him, being unable to find him. She says he then called the officer by telephone. Soon afterwards, he came in, as he and the agent say, without request from any person and to ascertain the cause of the noise he had heard the plaintiff making in the station. Negotiations then took place between the plaintiff and him. After having examined the baggage and discovered evidence of the presence of whisky, on one of the suit cases, he advised the agent not to deliver it, and the plaintiff says he then told her she was going to Welch with him the next morning at 8 o'clock. Welch was the county seat of the county. She further says the agent was not disrespectful to her until after Chinault, the officer, came in, and then, as she expressed it: "He seemed to be terrible set up, you know, and mad and had no reason about him, and told me I was ho lady or I wouldn't be carrying whisky."

Communications were opened by telephone with A. C. Hufford, a justice of the peace, at Welch. The plaintiff first attempted to call him up, but was unable to use the telephone in the station. Then she went to the central telephone station, called him up, told him the circumstances, and asked him to direct or request the agent to let her have her baggage. He promised to do so, according to her testimony, and immediately called Boyd, the agent, and talked to him, while she listened to the conversation. Instead of complying with his promise, he told the agent he had her (the plaintiff) just where he wanted her and to take her clothing out of the suit cases and give it to her, and to examine them closely to see whether she had any more whisky. She having informed the justice that Davy was not her destination and that she was going from that point down into Wyoming county to visit her mother, on the next morning, he directed the agent to retain the suitcases and let her take her clothing, and added that on her return he would prepare a written instrument to he signed by her, releasing him. At this point, in order to let the justice know she had heard these directions she broke in on the conversation, saying, "Squire, why can't I have my suit cases now." Somewhat angered, she returned to the station, and there was further controversy between her and Chinault and Boyd, in the course of which she says Chinault said, "I'm going to take you to Welch at 8 o'clock in the morning, " and, in reply to her protest of his lack of authority, "I can, and I will arrest you and take you before Squire Hufford in the morning." He says he threatened to arrest her for her boisterous conduct. She admits he did not lay hands upon her, but she says she deemed herself to be under arrest and waited to see what was to be done with her, and, in the absence of any further procedure, left the station and went to. the hotel for the night, the hour being somewhat late. On the next morning, she went to the station, bought a ticket for Welch, and boarded the train for that place. At the same time, Chinault appeared, advised her that she need not go to Welch then and could go on and visit her mother and submit herself to trial on her return; but he too boarded the train, carrying her suit case in which the liquor had been found, and went to Welch. At the justice's office, a warrant was issued on the complaint of Chinault. She protested her innocence and called an attorney. Both she and the attorney say the justice informed them that he would terminate the matter by the imposition of a fine of $100, and remit it after she had demanded an appeal. Immediately afterwards, she was allowed to go and take her suit case with her. On opening it at the attorney's office, nothing was found in it except some of her clothes and some broken glass, not more than the quantity requisite for one bottle. It had originally contained two quarts of whisky besides the clothing. Not "to be outdone, " as she puts it, she went from Welch to Pocahontas, Va., procured there two other quarts of whisky, came back to Davy, obtained her other suit case, stayed all night there, and then went on to visit her mother. That visit covered a period of two or three weeks, and, some time after her return to her home at Williamson, officers came with a commitment to take her to jail for a period of 30 days. She convinced them of her inability to go and then obtained an appeal from the judgment, which the circuit court reversed, after having sustained a motion to quash the warrant on the ground that it charged no offense.

Chinault denies that he threatened to arrest the plaintiff, that he had any intention to arrest her, that he told her she would have to go to Welch, that he took her suit case with him to Welch, and that he made any complaint. Boyd denies that he called Chin ault of his own volition, protests that he called him at the request of the plaintiff, and insists that he did not, in any manner, direct her to be arrested. Hufford says he does not know whether Chinault brought the suit case to his office or not. The plaintiff says he did,...