Little Rock Traction & Electric Company v. Walker

• Decision Date: 19 March 1898
• Citation: 45 S.W. 57,65 Ark. 144
• Parties: LITTLE ROCK TRACTION & ELECTRIC COMPANY v. WALKER
• Court: Arkansas Supreme Court

45 S.W. 57

65 Ark. 144

LITTLE ROCK TRACTION & ELECTRIC COMPANY v. WALKER

Supreme Court of Arkansas

March 19, 1898

Appeal from Pulaski Circuit Court, JOSEPH W. MARTIN, Judge.

Reversed and remanded.

Rose Hemingway & Rose, for appellant.

In an action for malicious prosecution, both malice and want of probable cause are essential elements. 33 Ark. 316. An agent of a corporation can bind his principal within only the real or apparent scope of his authority. Hence, to hold a principal liable in a suit for malicious prosecution by an agent, express authority of such agent to institute the criminal prosecution complained of must be shown. 78 Md. 394 28 A. 615; 34 Am. Rep. 311; S. C. 51 Md. 290; 15 F. 200; 39 N.Y. 381; 6 Exch. 314; 7 Exch. 36; 2 L. R. Q. B. Cases, 534; L. R. 5 C. P. 445; L. R. 6 Q. B. 65; 1 Biddle, Ins. § 118.

J. H Harrod, for appellee.

The questions of malice and want of probable cause were for the jury, and their verdict is conclusive thereon. To hold a corporation responsible for the acts of its agents, is not necessary to show express authority. The authority may be implied. 122 U.S. 597; Pierce, Railroads, 279; 98 N.C. 34; 10 S.W. 744; Thomp. Corp. § 6312. The principal is liable for the acts of his agent if they are within the real or apparent scope of his authority. It is not a question of whether the agent was of high or low degree. 78 Ala. 85; Mechem, Agency, § 311; 9 Philad. 189; 15 Nev. 176. A corporation may be held liable for assault and battery, false imprisonment or malicious prosecution. 32 N.J.L. 328; 37 Ala. 560; 32 N.J.L. 334; 130 Mass. 443; 15 Nev. 167; Cook, Corp. Law (2 Ed.), § 698; 133 Mass. 563; 47 N.Y. 274; 3 S.E. 923; 93 Cal. 562; 90 N.Y. 77.

BUNN C J. WOOD, J., dissents.

OPINION

BUNN, C. J.

This is a suit for malicious prosecution by Albert Walker, the appellee, against the street car company of Little Rock. Judgment for plaintiff, and the defendant appeals.

Walker was a passenger on one of defendant's cars, known as the "West Ninth car," running from the west on Ninth street to the junction of the several car lines at the crossing of Ninth and Main streets, having paid his fare. When his car arrived at the junction, and was stopped, as usual, on the east track on Main Street, and just north of Ninth street, plaintiff alighted from the same; and he took his seat at the near by corner of the sidewalk to await the arrival of the Fifteenth street car, coming from the south along the east track on Main, and going to the union depot. While at this corner, plaintiff was engaged in conversation with a woman, subsequently a witness in the case, and the Fifteenth street came up, and stopped the usual distance--fifteen or twenty feet--in rear of the Ninth street car on the same track as aforesaid. Then the Ninth street car moved off down Main street, and in the usual interval of time the Fifteenth street car followed. The plaintiff neglected to board the latter, as he intended, until, as he testifies, it had started and was moving off slightly; as his companion testifies, until the car had gone fifteen or twenty feet; and, as the conductor on the car testifies, after it had gone half way to Eighth street. Elsewhere plaintiff also stated that he boarded the Fifteenth street car at Ninth and Main, and that then the transfer man said, "Transfer one."

When the conductor passed through the car collecting fares, he accosted plaintiff sitting in the rear end, and demanded his fare, which he refused to pay, saying that he was a "transfer," meaning that he was entitled to be transferred having come to the junction as a paid passenger from West Ninth, and that he was entitled to continue to his destination without paying additional fare. There arose a controversy between him and the conductor, who contended that he had not got on the car before it left the junction, and that therefore he had not been transferred. The conductor, being a new man in the business, consulted with the motorman, who was an experienced man, as to what to do in the premises, and was informed that the rule was to put the passenger off if he refused to pay his fare, and this in fact seems to have been the rule. So at Fourth street the conductor called to his aid Rainwater, a policeman, and directed him to put Walker off, as he testified, but, as the policeman testified, directed him to arrest him and take him off. The policeman arrested plaintiff accordingly, and, on arriving at Markham street, took him to the office of the police judge at the city hall, which is near by; and on the following day the plaintiff was tried on a charge preferred by the policeman for violating a city ordinance which made it a misdemeanor for any person to ride on a street car without paying his fare. And the conductor and the transfer agent, whose post was at the junction aforesaid, were summoned and testified, and the plaintiff was discharged, and then brought suit against the street car company for malicious prosecution, as stated.

The proof of the rules of the defendant company is very indefinite and unsatisfactory, but we gather this much from the testimony: That transfers of passengers from the cars of one line to another were allowed to be made only at the junction named; that a passenger alighting from an incoming car remained in the vicinity until the arrival of the car to which he asked to be transferred, and, having been within the view of the transfer agent from the time he alighted from the other car, on his boarding the latter car, the transfer agent signaled or called to the conductor thereon that one was transferred, or what ever the number might be, and the conductor in this way was directed to demand no additional fares from these transferred passengers. Whether it was allowable for a passenger to board the second car after it had been put in motion, the witnesses do not inform us, except inferentially. From one of the questions put to the transfer agent and answered by him, one would infer that when a passenger alighted from an incoming car, the transfer agent called out "transfer the party." Such a direction would be nonsensical, until the car to which he wished to be transferred should arrive, and we presume that is what was meant.

However this may be, we Will assume, for the sake of the argument, at least, that the police judgment was based upon a proper construction of the testimony, and that the plaintiff was entitled to ride on the Fifteenth street car to his destination without paying the additional fare, and that his ejectment from the car was wrongful, and that his subsequent prosecution was also wrongful, and even, for the sake of the argument, we will say that the arrest and prosecution were at the instance of the conductor, and that from his conduct in relation thereto malice may be inferred. This brings us squarely to the only strictly legal proposition in this case, and that is, was the defendant company liable for the acts of its employee, the conductor, in this regard?

The defendant's contention is, in effect, that it is not liable unless there is proof of its express authority to its employee to arrest and prosecute delinquent passengers for a violation of the law on the subject. In determining what may be regarded as express authority, we may include, for the purposes of this discussion, not only authority given in express words, but such authority as necessarily follows by implication from the express language conferring the authority.

Central Railroad Company v. Brewer, 78 Md. 394, 28 A 615, was a case wherein a person, on entering a street car, deposited in the fare box a coin resembling a five cent piece or nickel, and shortly thereafter was informed by the driver that he had dropped a "lead nickel" into the box (pointing it out to him), and was requested to redeem it, and he refused to do so; and he, after leaving the car, was arrested at the instance of the superintendent of the company, and held to bail, and tried on a charge of passing counterfeit money. Upon the evidence the United States commissioner before whom the preliminary trial was had discharged...