Lafitte v. New Orleans, City & Lake Railroad Co.

• Decision Date: 01 January 1891
• Docket Number: 10,641
• Citation: 43 La.Ann. 34,8 So. 701
• Parties: LOUIS LAFITTE v. NEW ORLEANS, CITY & LAKE RAILROAD COMPANY
• Court: Louisiana Supreme Court

8 So. 701

43 La.Ann. 34

LOUIS LAFITTE v. NEW ORLEANS, CITY & LAKE RAILROAD COMPANY

No. 10,641

Supreme Court of Louisiana

January 1, 1891

APPEAL from the Civil District Court for the Parish of Orleans. Voorhies, J.

P. E Theard & Sons, for Plaintiff and Appellee.

Buck Dinkelspiel & Hart, for Defendant and Appellant.

OPINION

MCENERY, J.

The plaintiff sued the defendant company for $ 20,000 for damages for abuse when in defendant's car, and for damages for malicious prosecution and false arrest and imprisonment. There was judgment for the plaintiff for the sum of $ 400 from which the defendant appealed. The facts are that, on the 27th day of December, 1889, the plaintiff entered the street car of the defendant company.

He handed to the driver of the car, through the change gate, one silver dollar for change. The drivers of the cars are instructed to furnish change to the amount of $ 2 to passengers. The driver returned to the plaintiff ninety-five cents, fifteen cents of which he placed in the fare box for himself and friends.

There was some altercation about the change being short five cents. The driver gave the plaintiff five cents, to make good the deficiency.

After going several squares, the driver charged the plaintiff with having handed a counterfeit dollar to him, for which he had given him the change. The driver, in the hearing of the passengers, threatened to have the plaintiff arrested when he reached the station. He frequently looked at the plaintiff in an angry manner, which attracted attention, and placed the plaintiff under suspicion. When the car reached the station the driver and the starter at the station had the plaintiff arrested by a policeman, and confined in prison for a short while. There was a charge of passing counterfeit money lodged against plaintiff. The prosecution was dismissed, as the dollar, which it is alleged was counterfeit, was a good coin.

There is some conflict of testimony as to the exact point where the plaintiff was arrested. But we believe his statement is corroborated that he was arrested at the request of the driver by the policeman in response to the "whistle," a signal for the officer, which he blew before the car stopped, just as plaintiff was stepping from the car.

The petition of plaintiff contains two causes of action: one for abuse and defamation when in defendant's car, and the other for malicious prosecution. On the latter cause the record does not show that the charge against plaintiff and his consequent arrest, instigated by the driver of the car, was done in the exercise of the functions in which he was employed. The driver had no instructions to make arrest for the passing of counterfeit money. No inference of such authority can be drawn from the fact of changing money for passengers. He does this act at his own risk and responsibility. The company loses nothing if counterfeit coin is accepted by the driver, as he is charged with it. It has no interest therefore in the arrest of the person attempting to pass counterfeit money, other than that which induces every citizen to make known crime when committed.

It may be, as alleged by plaintiff, that the act was malicious, wilful and tortious, but, as it was not done within the scope of the driver's employment, the defendant company can not be held responsible in damages. R. C. C. 2320; Williams vs. Palace Car Co., 40 An. 88; 8 Robinson 150; 15 La. 169; 28 An. 6; Cooley on Torts, 536.

The plaintiff was a passenger on defendant's street car line. He had paid his fare to his destination. He behaved himself with propriety. He was not drunk or disorderly. The complaint against him for passing...