Little Rock Railway & Electric Co. v. Dobbins

• Decision Date: 30 April 1906
• Citation: 95 S.W. 788,78 Ark. 553
• Parties: LITTLE ROCK RAILWAY & ELECTRIC COMPANY v. DOBBINS
• Court: Arkansas Supreme Court

95 S.W. 788

78 Ark. 553

LITTLE ROCK RAILWAY & ELECTRIC COMPANY v. DOBBINS

Supreme Court of Arkansas

April 30, 1906

[Copyrighted Material Omitted]

Appeal from Pulaski Circuit Court; Edward W. Winfield, Judge affirmed.

STATEMENT BY THE COURT.

The complaint was in four paragraphs.In the first, appellee alleged that he entered appellant's car at the Choctaw Depot to become a passenger, and that appellant's conductor, one Barger, "wrongfully and without cause assailed him with offensive and insulting language, and expelled him from the car, and refused to permit him to re-enter it and resume his rights as a passenger thereon, by reason of which he was insulted and humiliated, to his damages in the sum of $ 1,500.

In the second paragraph, he alleged that he entered one of appellant's cars at or near the corner of Main and Markham streets, for the purpose of becoming a passenger and obtaining proper transfers for himself and family, then on said car, and upon request of the conductor paid the fare.That he asked the conductor for transfers, and that said conductor in an insulting and offensive manner said to him "I will give you a transfer," and at once called a policeman from the sidewalk, who arrested him and took him from said car, saying, "We will furnish the evidence," and that said conductor wrongfully and maliciously did assault and lay hand upon him, and forcibly ejected him from the car without his consent, by reason of which he was separated from his family and friends, insulted humiliated and inconvenienced to his damage in the sum of $ 2,000.

The third paragraph is a repetition of the second, and in addition sets up that the conductor unlawfully, maliciously, etc., did cause him to be arrested illegally and without warrant and taken into custody and through the principal streets of the city to the police station, and to be forcibly and unlawfully deprived of his liberty and falsely imprisoned, to his damage in the sum of $ 2,500.

The fourth, in addition to the matters already set forth, charged that appellant did wilfully, maliciously and without reasonable or probable cause, falsely charge plaintiff with disturbing the peace, and caused him to be arrested and taken from the car into custody through the principal streets of the city to the police station and there charged with disturbing the peace, and caused said charge to be entered upon the docket of the police court, so that plaintiff was compelled to answer said charge; that on the next day the defendant, through its said conductor, Barger, and through servants and agents, prosecuted the said charge wrongfully and maliciously and without reasonable or probable cause; that plaintiff was tried and acquitted, and said prosecution then wholly ended and terminated.That said prosecution became widely known, and greatly distressed and humiliated plaintiff, etc., to his damage in the sum of $ 2,500.

The defendant answered.Thereupon the cause came on for trial before a jury, and, after the plaintiff's opening statement of the case, the defendant, by leave of the court, entered its demurrer in short on the record to the third and fourth counts in plaintiff's complaint, and the court sustained the demurrer to the fourth count, and gave judgment in favor of the defendant, and took under consideration the demurrer to the third paragraph.Thereupon the trial proceeded, and, after hearing all the evidence adduced and the hour of adjournment having arrived, the cause was continued until the next day.The next day the court, having heard all the evidence and being sufficiently advised as to its ruling upon the demurrer to the third count, sustained the same, and gave judgment thereon in favor of the defendant.And thereupon, after hearing the argument of counsel and the instruction of the court, the jury retired to consider their verdict, and after due deliberation returned to the court the following verdict:

"We, the jury in the case of Dobbins v. Little Rock Railway & Electric Company, find as follows: On count one, for the defendant; on count two, compensatory damages, $ 500; exemplary damages, $ 250. T. P. Murrey, foreman."

Judgment was entered accordingly against appellant, and it prosecutes this appeal.

The facts as stated by appellee are substantially as follows:

On the 19th of June, 1903, D. F. Dobbins, who was acting as chairman of the committee of arrangements for a picnic excursion given by the Immanuel Baptist Church, was returning with the picknickers, among whom were the members of his family, from an excursion over C., O. & G. Ry. to Benton, Arkansas.They arrived at the Choctaw depot between five and six o'clock in the afternoon.Four or five street cars were there awaiting the picnic party.They boarded these cars.They were summer cars with seats facing the front platform.Appellee got up and gave his seat to another, and, according to his statement, turned his back toward the front end of the car, and "leaned back on the front 'dash board,'" facing the passengers in the car.The car was crowded, and there were no other seats.He was talking to another passenger, and had not noticed that there was any crank on the car, or that the conductor and motorman were not on the car.He accidentally moved his right arm and touched the controller of the car, and the car moved forward slightly.He saw that he had turned on the power, and immediately jerked the controller back to its place.The car moved some ten or twelve inches.The motorman at that moment came from the sidewalk, and took off his controller, and the conductor stepped up on the car, and ordered him off in a very abrupt and insulting manner.

The witness (appellee) then continued his account of the occurrence as follows:

"He ordered me off, and said that I should know that he was running the car.He said, 'I am running the car, and you will have to get off.'I stepped down, and he stepped down beside me, and I told him I felt very badly about the affair.I said, 'My friends and family are on the car, and I do not want to have any trouble.'I thought I could argue the matter with him, and get on the car, and it would be all settled, but he said in an abrupt way, and using an oath, 'You and your family is nothing to me.You can't ride on this car.'He said, 'You and your family ain't a damn to me' or something of the kind.He spoke in a rough and abusive way, and I felt greatly humiliated.I had entered the car for the purpose of becoming a passenger thereon, and it was an accident that I moved my arm and touched the controller.I explained that to the conductor.I then boarded the first car in front.I live at Eleventh and Ringo. and wanted to go to the western part of the city.I rode on the front car from the Choctaw depot to Main and Markham, where I understood that the car I was on was not the right car for me to go home, and, observing that the car behind me, the one I had got off of, was a West Fifteenth street car, and would pass Ninth and Main, which was my place of transfer, and, my children being on that car, I stepped back on it, for the purpose of going home with them.When I got back on it, the conductor, Barger, immediately came to me and said, 'Do you want to see me?'I replied 'No,' and he said 'Pay your fare,' and I paid him.The car was moving around the Main Street curve, and there was a notice on the car that passengers should ask for transfers at the time of paying their fare.I said to the conductor 'I would like to have a transfer for myself and children to West Ninth Street line,' and he replied, 'I will give you a transfer; I will transfer you from this car.'The car moved around the curve, and he called for a policeman and said, 'Take this man off the car.'The policeman, accompanied by a man dressed in street car uniform, immediately came from the sidewalk, and got on the car, and the policeman took hold of me by the arm, saying, 'Come with me.'The other man, dressed in street car uniform, accompanied the policeman off the car.The conductor said to the policeman, 'Take this man off the car.We will furnish the evidence.'The policeman was the man who took hold of me.I never knew the name of the other street car man.He was one of the men who appeared as a sort of a witness in the police court.He did not come to the police headquarters with the officer and me.

"Q.Where did the officer take you?

"A.He took me to the police station."

Counsel for appellant objected to the above question and answer on the ground that it was incompetent, irrelevant, and immaterial, which objection the court overruled, and appellant saved its exception.The testimony for appellant was in direct conflict with the above on material points.

Judgment affirmed.

Rose, Hemingway, Cantrell & Loughborough, for appellant.

1.The verdict was excessive, there being no ground for punitive damages.When an agent of a principal acts maliciously, he is presumed to act without authority; and while the agent is liable for punitive damages, the principal is not, unless it appears that he aided, adopted or ratified the malicious act of the agent with a full knowledge of the facts.63 Ark. 387;147 U.S. 104;85 N.Y.S. 363.

2.It was error to admit testimony of witnesses in relation to the arrest and prosecution of plaintiff.65 Ark. 149.

3.The court erred in modifying the tenth instruction asked by defendant and giving it as modified.Appellant had not become a bona fide passenger.If he entered the car with improper motives and not in good faith to become a passenger thereon the relation of carrier and passenger did not exist.This was a question for the jury.35 Am. Rep. 450;Shear. &Red. Neg. 305, § 262.For definition of "passenger,"see3 Thompson on Neg. 96, § 2634.A passenger...