Marcuchi v. Norfolk
| Citation | 81 W.Va. 548 |
| Court | Supreme Court of West Virginia |
| Decision Date | 29 January 1918 |
| Parties | Gennaro Marcuchi v. Norfolk and Western Railway Co. |
The withdrawal of correct and proper instructions after submission of a ease to a jury whose members entertain conflicting opinions upon controverted facts as to which litigant is entitled to a verdict and the substitution of instructions based upon a different and erroneous theory plainly is prejudicial and reversible error..(p. 550).
2. Arrest Warrant Tower of Conductor.
A conductor as a conservator of the peace has authority, under sec. 31, Ch. 145, Code, to arrest without a warrant and eject from a car or train of cars conveying passengers any person, whether a passenger or not, who in his presence and the presence of other passengers and the public then assembled contends with angry words to the disturbance of the public peace and tranquility. And an instruction that tells the jury a conductor has no such right is erroneous. (p. 551).
3. Breach op the Peace Definition.
The phrase '' breach of the peace'' is generic and includes every act of violence which tends to disturb that sense of security which every person feels necessary to his comfort and to secure which government is instituted and maintained, (p. 553).
Error to Circuit Court, McDowell County.
Action by Gennaro Marcuchi against the Norfolk & Western Railway Company. Judgment for plaintiff, and defendant brings error.
Reversed and remanded.
Theodore W. Reath, John H. Holt, Graham Sale and John Randolph Tucker, for plaintiff in error.
Arthur G. Froe and Harry J. Capehart, for defendant in error.
Deeming itself prejudiced by the refusal of instructions requested, the giving in lieu thereof of instructions prepared by the court, the withdrawal of the latter from the jury after submission and partial consideration of the case, among whose members there was disagreement for whom they should find, and the substitution of other instructions for those withdrawn, the defendant seeks reversal of the judgment against it rendered in an action for an alleged false arrest by the agents and servants of the defendant while engaged in the discharge of the duties assigned to them and while plaintiff was a passenger on defendant's line of railroad. He had purchased a ticket entitling him to carriage from Pocahontas, Virginia, to Bluestone Junction, where a change of trains was necessary, and thence to Dry Fork, McDowell County, West Virginia. The contract of carriage being performed as far as the junction, the plaintiff, on the arrival of the train bound for his destination, twice attempted to force his way into one of the coaches while the vestibule, platform and steps were occupied by passengers in the act of alighting. Though upon the first effort requested by the conductor to desist until the passage way was free of obstruction, plaintiff persisted in the attempt, when the conductor stopped and detained him on the steps or platform of the car and directed the retiring passengers to depart by way of the platform and steps of the next coach, when plaintiff began and continued to use loud, vulgar, obscene and profane language in the presence of the conductor, of Thompson, a police officer and employee of the defendant, and of other passengers and the public, assembled on and about the railroad platform and premises, wherefore the arrest ensued. That plaintiff used the language attributed to him is proved not only by the agents of the defendants but also by others who witnessed the occurrence, heard what he said and saw what he, the conductor and Thompson did, though he and two others of the same nationality denied the disorderly conduct and offensive language charged and testified that the conductor assaulted, beat and wounded him.
Of the instructions requested by defendant, 1, 2 and 6 state correct legal principles and should have been given but 3, 4 and 5 do not and properly were refused; No. 3 because it says the conductor had authority to arrest the plaintiff for the violation of the rules and regulations prescribed by the defendant for the guidance of its agents and servants in the transaction of its business. Carriers possess no power to enact statutes the violation of which subjects the offender to such treatment; No. 4 because substantially covered by No. 1 requested but not given. Besides, the phrase "or by other act or acts" is too general and is susceptible of misinterpretation. No. 5 is objectionable only because although plaintiff may not be entitled to recover for the arrest he may be entitled to damages for an assault under the pleadings if unnecessary force was used to effect the arrest.
Barring the direction as to exemplary damages, the instructions first propounded by the court ex mere motu and later withdrawn state correct legal principles when applied only to the contention of the plaintiff. They conceded, how- ever, to the jury the right to determine whether upon the facts proved the arrest was justifiable. The substituted instructions withdrew this question from the jury and told them that the defendant's servants and agents had no right under the law to arrest the plaintiff without a warrant and that, therefore, the arrest made was such as rendered defendant responsible; and left for them nothing but the assessment of damages.
If, when applied to the facts testified to by defendant's witnesses, the principle asserted in. these instructions is sound, a conductor, though acting within the scope of his employment, cannot arrest for a misdemeanor committed in his presence and in the presence of the public without first procuring a warrant therefor, however offensive may be the acts and conduct of the guilty offender. If that be true of course the action of the court was not erroneous.
First, was plaintiff under any aspect of the case guilty of a misdemeanor? Section 31, Ch. 145, Code, says: "If any person, whether a passenger or not shall, while on any passenger car or any train of cars, behave in a riotous or disorderly manner, he shall be guilty of a misdemeanor" for which he may be fined and imprisoned and ejected from such car or train ". ...
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