Tucker v. Erie Ry. Co.

• Decision Date: 18 March 1903
• Citation: 54 A. 557,69 N.J.L. 19
• Parties: TUCKER v. ERIE RY. CO. GEIL v. SAME.
• Court: New Jersey Supreme Court

54 A. 557

69 N.J.L. 19

TUCKER

v. ERIE RY. CO.

GEIL

v. SAME.

Supreme Court of New Jersey.

March 18, 1903.

Actions by Patrick Tucker and Jacob Geil against the Erie Railway Company. On rules to show cause. Rules absolute.

Argued November term, 1902, before GUMMERE, C. J., and VAN SYCKEL, FORT, and PITNEY, JJ.

John J. Fallon, for plaintiffs.

Corbin & Corbin, for defendant.

GUMMERE, C. J. Tucker and Geil, the plaintiffs in these cases, were arrested while at the "oil switch" of the Erie Railroad Company, in the village of Garfield, on the evening of the 8th day of November last, by one Dwyer, without a warrant, upon a charge of stealing the brass journals from some freight cars which were standing on the company's tracks at that point. They were first taken by Dwyer to the office of the Standard Oil Company, which was near at hand. While they were there, two other men (Flynn and Delurey) came to the office; and, shortly after their arrival, Dwyer, with their assistance, took the plaintiffs before a magistrate whose office was in the building, where a complaint was made against them by Dwyer, charging them with the larceny of the journals. On this complaint the plaintiffs were committed to the county jail by the magistrate, and Flynn and Delurey took them to Hackensack, where the county jail was located, and there delivered them into the custody of the jailer. They were subsequently indicted for the offense charged against them in Dwyer's complaint. The trial of the indictment resulted in an acquittal. The plaintiffs then-each of them—instituted a suit against the defendant company for false arrest and malicious prosecution. Their suits were tried together by consent, and resulted in verdicts in their favor.

The responsibility of the defendant company is rested upon the doctrine of respondeat superior; and the primary question presented by these rules to show cause is whether the three men, Dwyer, Flynn, and Delurey, in causing the arrest and imprisonment of the plaintiffs, were acting as the agents or servants of the defendant company. The evidence shows that they were "railway policemen," appointed and commissioned as such, on the application of the defendant company, by the Governor of the state, in pursuance of the authority conferred upon him by the act respecting railroads and canals (Gen. St. p. 2671). By the provision of section 22 of that act, the Governor, upon the application of any railroad corporation made to him to commission such persons as the corporation may designate, to act as policemen for such corporation, "may appoint such persons, or so many of them as he may deem proper, to be such policemen, and shall issue to such person or persons so appointed a commission to act...