Krulevitz v. Eastern R. Co.

• Decision Date: 05 January 1887
• Citation: 9 N.E. 613,143 Mass. 228
• Parties: KRULEVITZ v. EASTERN R. CO. [1]
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

143 Mass. 228

9 N.E. 613

KRULEVITZ v. EASTERN R. CO. ^[1]

Supreme Judicial Court of Massachusetts, Essex.

January 5, 1887

Action of tort, in two counts. The first count was for an assault and false imprisonment, and the second count for malicious prosecution. At the trial in the superior court, before ALDRICH, J., the plaintiff offered evidence tending to prove the following facts:

On July 7, 1884, the plaintiff, while riding in a train of defendant from Lawrence to Salem, offered the conductor, when asked for a ticket, a ticket of the defendant corporation which read "Lawrence to Salem and return," on which he had already ridden from Lawrence to Salem, and it was conceded that this ticket did not entitle him to be carried a second time from Lawrence to Salem. The conductor refused to accept the ticket, and demanded of the plaintiff payment of his fare. The plaintiff, who had ridden on the train with the same conductor a number of times before, said that he had no money with him, because he thought the ticket was good, and that he would pay the fare at night, to which the conductor retorted that that was what all tramps did. The plaintiff then offered to allow the conductor to keep the ticket as security. The conductor refused the offer, and told plaintiff that he would fix him when they got to Salem. It was denied by the conductor that he said anything about tramps, and the conductor testified that the plaintiff, upon offering the ticket, said, "That is all you will get,--take that or nothing;" and also refused to leave the train.

The testimony also tended to prove the following facts: The conductor who was a railroad police officer, after informing the plaintiff that if he did not pay fare he should arrest him, or have him arrested, on arrival at Salem, allowed the plaintiff to retain his position in the train until it arrived at Salem On the arrival of the train at this station certain of the local police, who were in readiness in consequence of a previous notice from the conductor, entered the train, and the conductor, pointing out the plaintiff said to them, "That is the man," and told them to take him to the lock-up; whereupon, in consequence of this direction, and in the presence of the conductor, said officers, without a warrant, took the plaintiff in charge before he left or attempted to leave the car, and took him to the police station in said Salem, where he remained in custody until released on bail. The conductor afterwards made a complaint against the plaintiff for evading payment of fare on this occasion in the manner stated in the said complaint, by leaving the car without having paid his fare. On this complaint the plaintiff was tried and acquitted. At the conclusion of the testimony, the defendant asked the court to rule that the action could not be maintained; and, further, that there was no sufficient evidence to warrant the jury in finding that said complaint was made without probable cause by the conductor; but the court declined so to rule.

Defendant asked the court to instruct the jury as follows:

"(1) If the conductor took no action after the plaintiff had refused to pay his fare, or had failed to pay it upon demand, until the arrival of the train at Salem, except to inform the plaintiff that, upon arrival at Salem, he would be arrested; and if, upon arriving at Salem, the conductor pointed out the defendant to one or more police officers, who had, at the conductor's request, entered the car for the purpose of arresting the plaintiff; and in consequence of such pointing out, and in the presence of the conductor, the said officers arrested the plaintiff, such being the result the conductor intended to effect by pointing out the plaintiff to the policeman,--such facts would, as a matter of law, constitute an arrest of the plaintiff by the conductor.

"(2) Under the provisions of Pub.St. c. 112, § 197, and chapter 103, § 18, the conductor is authorized, in the case named in either of said sections, either to arrest the offender without a warrant, and remove him to a baggage or other suitable car of his train, and confine him in such car until his arrival at a station, and then place him in charge of an officer, or to arrest him without removing him to or confining him in such car; and then, upon arrival at a station, place him in charge of an officer; or, without arresting him, or removing him, to place him in charge of an officer at such station, in the first instance."

The court declined to give said instructions.

The court submitted to the jury the following special issue "Did Nason, the railroad police officer, arrest the plaintiff?" In his charge the judge instructed the jury that, if they found the special issue in the negative, they would be authorized to find the arrest in Salem was unlawful, and the plaintiff would, upon such findings, be entitled to recover upon the first count of his declaration; to which ruling the defendant excepted. The jury found the special issue in the negative, and rendered a general verdict for the plaintiff, and the defendant...