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(143 Mass. 228)

KRULEVITZ V. EASTERN R. Co.1 (Supreme Judicial Court of Massachusetts. Essex. January 5, 1887.) 1. MALICIOUS PROSECUTION—EVADING PAYMENT OF RAILROAD FARE, PROBABI.E CAUSE.

The plaintiff was a passenger on a train of the defendant's road, running from L. to S., and offered to the conductor, with whom he had frequently ridden before, a ticket marked from L. to S. “and return," on which he had ridden from L. to S. The conductor refused the ticket, and demanded fare. According to the testimony of the conductor, the plaintiff said he would get nothing but the ticket, and refused to leave the train. According to the testimony of the plaintiff, he said he had no money, because he supposed the ticket was good, but would pay when he arrived at S., and offered the ticket as security, but it was refused. The evidence showed that the conductor allowed him to ride to S., when he had him arrested, and made a complaint against him for fraudulently evading the payment of his fare. After trial, the plaintiff was acquitted. On these facts, held, that there was evidence of

want of probable cause to support a verdict for the plaintiff.2 2. SAME-RAILROAD POLICE OFFICER-AUTHORITY OF, TO ORDER ARREST.

On the arrival of the train at S., officers (having been notified) were ready, and entered the car, when the conductor, who was a railroad police officer, pointing to the plaintiff, said, “That is the man,” and told them to take him to the lock-up, which was done.' Held, that a jury' might return a verdict for the plaintiff in a count for assault and false imprisonment, on the ground that the conductor ordered the arrest, not as a police officer, but as a conductor; so that, being made by the local officers, who were not present when the offense was committed, without a warrant,

it was not authorized by the statute. Action of tort, in two counts. The first count was for an assault and false imprisonment, and the second count for malicious prosecution. At the trial in the superior court, before ALDRICH, J., the plaintiff offered evidence tending to prove the following facts:

On July 7, 1884, the plaintiff, while riding in a train of defendant from Lawrence to Salem, offered the conductor, when asked for a ticket, a ticket of the defendant corporation which read, "Lawrence to Salem and return,” on which he had already ridden from Lawrence to Salem, and it was conceded that this ticket did not entitle him to be carried a second time from Lawrence to Salem. The conductor refused to accept the ticket, and demanded of the plaintiff payment of his fare. The plaintiff, who had ridden on the train with the same conductor a number of times before, said that he had no money with him, because he thought the ticket was good, and that he would pay the fare at night, to which the conductor retorted that that was what all tramps did. The plaintiff then offered to allow the conductor to keep the ticket as security. The conductor refused the offer, and told piaintiff that he would fix him when they got to Salem. It was denied by the conductor that he said anything about tramps, and the conductor testified that the plaintiff, upon offering the ticket, said, “That is all you will get,-take that or nothing;” and also refused to leave the train.

The testimony also tended to prove the following facts: The conductor, who was a railroad police officer, after informing the plaintiff that if he did not pay fare he should arrest him, or have him arrested, on arrival at Salein, allowed the plaintiff to retain his position in the train until it arrived at Salem. On the arrival of the train at this station, certain of the local police, who were in readiness in consequence of a previous notice from the conductor, entered the train, and the conductor, pointing out the plaintiff, said to thein, “That is the man,” and told them to take him to the lock-up; whereupon, in consequence of this direction, and in the presence of the conductor, said officers, without a warrant, took the plaintiff in charge before he left or attempted to leave the car, and took him to the police station in said Salem, where he remained in custody until released on bail. The conductor after

1 For opinion in fornier appeal, see 5 N. E. Rep. 500. 3 See note at end of case.

wards made a complaint against the plaintiff for evading payment of fare on this occasion in the manner stated in the said complaint, by leaving the car without having paid his fare. On this complaint the plaintiff was tried and acquitted. At the conclusion of the testimony, the defendant asked the court to rule that the action could not be maintained; and, further, that there was no sufficient evidence to warrant the jury in finding that said complaint was made without probable cause by the conductor; but the court declined so to rule.

Defendant asked the court to instruct the jury as follows:

(1) If the conductor took no action after the plaintiff had refused to pay his fare, or had failed to pay it upon demand, until the arrival of the train at Salem, except to inform the plaintiff that, upon arrival at Salem, he would be arrested; and if, upon arriving at Salem, the conductor pointed out the defendant to one or more police officers, who had, at the conductor's request, entered the car for the purpose of arresting the plaintiff; and in consequence of such pointing out, and in the presence of the conductor, the said officers arrested the plaintiff, such being the result the conductor intended to effect by pointing out the plaintiff to the policeman,—such facts would, as a matter of law, constitute an arrest of the plaintiff by the conductor.

“(2) Under the provisions of Pub. St. c. 112, § 197, and chapter 103, § 18, the conductor is authorized, in the case named in either of said sections, either to arrest the offender without a warrant, and remove him to a baggage or other suitable car of his train, and confine him in such car until his arrival at a station, and then place him in charge of an officer, or to arrest him without removing him to or confining him in such car; and then, upon arrival at a station, place him in charge of an officer; or, without arresting him, or removing him, to place him in charge of an officer at such station, in the first instance."

The court declined to give said instructions.

The court submitted to the jury the following special issue: “Did Nason, the railroad police officer, arrest the plaintiff ?" In his charge the judge instructed the jury that, if they found the special issue in the negative, they would be authorized to find the arrest in Salem was unlawful, and the plaintiff would, upon such findings, be entitled to recover upon the first count of his declaration; to which ruling the defendant excepted. The jury found the special issue in the negative, and rendered a general verdict for the plaintiff, and the defendant alleged exceptions.

F. L. Evans, for defendant. The court should have given the instruction contained in the first request. Blatch v. Archer, Cowp. 63; Com. v. Field, 13 Mass. 321. The court should have given the instruction contained in the second request. Pub. St. c. 103, § 18.

E. J. Sherman and C. U. Bell, for plaintiff.

HOLMES, J. 1. The malicious prosecution alleged in the second count was for fraudulently evading the payment of fare by leaving a car without having paid it. The evidence in the case at bar was that the plaintiff was arrested before he attempted to leave the car, and it also would have warranted a finding that the conductor who made the complaint believed the plaintiff's story, and did not believe that the plaintiff was attempting a fraudulent evasion of any sort. There was evidence, therefore, that the complaint was made without probable cause. Krulevitz v. Eastern R. R., 140 Mass. 573; S. C. 5 N. E. Rep. 500.

2. The conductor did not arrest the plaintiff at once, nor did he arrest him at all in person, but, when the train reached Salem, pointed him out to other officers, who made the arrest at the conductor's request. This was not necessarily, and as matter of law, an arrest by the conductor in his capacity of railroad police officer. The jury were given to understand that they might take this view of the facts, which would regard the conductor's request as made in his capacity as officer, and the other officers as his servants. But it was also possible to find that the request to the officers was made by the conductor only in the capacity of conductor; in other words, that he simply made a complaint to them just as he might have done if he had not been an officer himself, in which case the arrest was not made by him as railroad police officer. This was the view taken by the jury, and it follows that the arrest was not justified by the statute. The statute does not authorize an arrest by officers not present when the offense is committed, upon complaint by a conductor. Pub. St. c. 103, § 18. It was not denied that the conductor caused the arrest to be made, or that he was acting within the scope of his employment so far as to make the defendant liable for his tort. The only question was in what capacity he acted. If the arrest was unlawful, it was an assault and a false imprisonment by the defendant. Cody v. Adams, 7 Gray, 59; Smith v. Bouchier, 2 Strange, 993. Exceptions overruled.

NOTE. MALICIOUS PROSECUTION. PROBABLE CAUSE depends on the prosecutor's sincere belief in the guilt of the party prosecuted. Wilson v. Bowen, (Mich.) 31 N. W. Rep. --; Spear v. Hiles, (Wis.) 30 Ñ. W. Rep. 511 ; Spear v. Hiles, Id. 506; Johnson v. Miller, (Iowa,) 29 N. W. Rep. 743; S. C. 19 N. W. Rep. 310, and 17'N. W. Rep. 34; Burton v. St. Paul, M. & M. R. Co., (Minn.) 22 N. W. Rep. 300; Chapman v. Dunn, (Mich.) 22 N. W. Rep. 101; Murphy v. Martin, (Wis.) 16 N. W. Rep. 603; Woodworth v. Mills, (Wis.) 20 N. W. Rep. 728.

(143 Mass. 267)

LEWIS 0. NEW YORK CENT. SLEEPING-CAR Co.

WING V. SAME.

(Supreme Judicial Court of Massachusetts. Bristol. January 7, 1887.) 1. CARRIERS - OP PASSENGERS - SLEEPING-CAR COMPANY - LIABILITY FOR PROPERTY

STOLEN.

A sleeping-car company is bound to use reasonable care to guard a passenger on its cars from theft; and if, through want of such care, the personal effects of a pas. senger, such as he might reasonably carry with him, are stolen, the company is

liable.1 2. SAME-NOTICE DISCLAIMING LIABILITY-KNOWLEDGE OF PASSENGER.

The fact that the company has posted a notice in its cars in which it disclaimed liability for the loss of valuables by passengers cannot be availed of, by way of a defense to an action by a passenger whose money, which he had placed beneath the pillow in his berth on going to sleep, was stolen, where it appears that the passenger

did not see or know of such notice. 3. SAME-EVIDENCE-WANT OF DUE CARE--PRESUMPTION OF.

In an action against a sleeping-car company by a passenger, for money stolen from his berth while he was asleep, the fact that another passenger lost a sum of money in a similar manner at the same time is itself some evidence of the want of proper watchfulness by the porter of the car; and where there was evidence that the porter was found asleep in the early morning, and that he was required to be on duty for 36 hours continuously, which included two nights, a case is presented which must be submitted to the jury to determine whether or not there was negligence on the part of the company in guarding its passengers. These were two actions, each with a count in contract and tort. The count in contract alleged that the defendant, in consideration of the purchase by the plaintiff of a ticket which entitled him to be carried in a sleeping car of

1A railroad company is liable for the baggage of a passenger in a sleeping car on one of its trains, though such car was owned and managed by the sleeping-car company. L. & N. & G. S. R. Co. v. Katzenberger, (Tenn.) 1 S. W. Rep. 44.

See, also, Whitney v. Pullman Palace Car Co., (Mass.) post, 619.

1

M.

the defendant from Albany to Buffalo, undertook to provide plaintiff a berth in said sleeping car, and to see that said car was properly guarded, and that his personal baggage and effects were protected while he was asleep, but that, while plaintiff was riding in said car, through the negligence of the defendant's servant who was employed by them to care for and watch said car, and protect the baggage and personal effects of the passengers riding therein, the plaintiff's pocket-book, and a large sum of money therein, was taken from his person by some person unknown, so that he wholly lost the same. The count in tort alleged the same facts, and claimed damages for the property stolen. At the trial in the superior court, before THOMPSON, J., it was agreed that the defendant owned and managed a certain sleeping car, to-wit, the car Pontiac, which was run on the Boston & Albany Railroad and on the New York Central & Hudson River Railroad.

William Lewis, one of the plaintiffs, testified: -“I left Boston for San Francisco, Oct. 20, 1884, on the train leaving the Boston & Albany depot at six P.

This was a regular train, leaving Boston daily, with passengers, bound for San Francisco. I bought sleeping-car tickets of the defendant's agent in the depot at Boston, entitling me to two berths, or one section, in the car Pontiac between Boston and Chicago, paying $11 for the same. I occupied the whole section, going to bed about eleven o'clock. I took off only my coat, vest, and boots. I folded my vest up, and put it under my pillow, right under my head. In the inside pocket of the vest. I had $200 in bills. The pockei was sewed up securely across the top before I left home. I had sewed it up so that it might be safe when I went to sleep. I felt the money in the pocket of the vest before I went to sleep, which was after leaving Albany, at about half-past one in the morning. I did not wake until 5 o'clock, when I got up and dressed, putting on my vest. I then went to the wash-room. The train conductor was there. I next went into the smoking-room at the end of the car. It was so situated that you cannot see the main body of the car from it. When I entered the smoking-room, I found the porter there. He was lying down, with his body and head on a short seat, and his feet on the floor, with a blanket rolled over him. I think he was asleep. From the position where he was, no view was to be had of the part of the car where the passengers were asleep. About 5:30, Mr. Wing [the other plaintiff] came into the smoking-room, and said he had been robbed. I examined my vest. I discovered that a slit two or three inches long had been cut in the bottom of the pocket, and all the money taken out. When I discovered the loss, I told the porter about it. He said it must have been a man who got off at a place where we stopped at about four o'clock, because the man gave him five dollars. At a stopping place I told the sleeping-car conductor, who called an official. I told the official I found the fellow asleep. The porter said that he was not asleep, because he talked to the train conductor just before I found him in the smoking-room. I did not see any notice in the wash-room in which the company disclaims responsibility for personal property in berths. It was not light enough in the wash-room for me to read it if I had seen it. I never saw such notices in sleeping cars. I have frequently traveled on this route to San Francisco,-two or four times a year for ten years,-taking a sleeping car each time."

William R. Wing, the other defendant, testified that he put his money, when he went to sleep, in the interior compartment of a pocket-book, and put the pocket-book in the inside pocket of his vest, which he put under his pillow; that, when he woke up, the money was gone; and that he did not remember seeing any notice in the wash-room in regard to valuables.

It was agreed that (except at stations where the door was locked) the doors at both ends of the car were kept unlocked, and there was no interruption to its passage from one end of the train to the other.

Nathan A. Wheeler, for the defendant, testified that he was eastern division superintendent of the defendant company; that the price charged to everybody on sleeping cars is the same for the same accommodations;

and that no consideration is made in the price in view of the articles or money or valuables which a passenger has.

William F. Ray, conductor of the car Pontiac, testified that he took charge of the car at Albany; that the porter is on duty from Boston to Chicago; that the duties of the porter are to look after the car and his passengers, black boots, and to stay awake; that there were notices about responsibility for valuables at each end of the car, in the gentlemen's and ladies' wash-rooms, directly over the wash-stand; and that the porter's pay is $25 a month, he finding his own board.

It was admitted by the defendant that there is no receptacle for valuables or other property furnished by the defendant, and that its servants are forbidden to take possession of any such articles.

This comprised all the material evidence, and at its close the defendant's counsel asked for certain rulings, as follows: (1) That there is no evidence upon which the jury can find any contract or obligation on the part of the defendant to watch and care for or protect the money of the plaintiff; (2) that there is no evidence upon which the jury can find that the loss occurred through the negligence of the defendant; (3) that the absence of the porter from the aisle of the car, as testified to by Lewis, is the only evidence of negligence on the part of the defendant; and that evidence is not sufficient to justify a verdict for the plaintiff, the absence being after the loss occurred.

The court refused so to rule, but instructed the jury as follows: That “the defendant corporation, in furnishing sleeping cars for the traveling public, is not to be regarded as an innkeeper, or as a common carrier. Those are insurers of the property. But it is bound to exercise care to prevent thefts of goods and money from the person of one to whom it has furnished a berth for hire in the ordinary course of its business, either from unauthorized intruders or by occupants of the car. The company may be liable for such articles as a passenger usually carries about his person, and for such sum of money as may be reasonable and necessary for traveling expenses, providing the same is lost by want of ordinary care on the part of the defendant, or its servants in not exercising such care."

Upon the question of whether the evidence tended to show negligence on the part of the defendant which would justify the jury in finding that the loss occurred through the negligence of the defendant, the court instructed the jury as follows: “You are to say, under all the circumstances of this case, whether or not the defendant corporation, on the night in question, in the sleeping car Pontiac, exercised ordinary care to protect the persons occupying the berths there from larceny. You will determine what, under the circumstances, would be ordinary care,—not extraordinary care,—not to keep such a condition of things as to render it impossible for a theft to occur,—but taking into consideration the business, the construction of the car, the situation of the berths; and on all the facts you are to say what would be reasonable care. If you find that the defendant did exercise ordinary care, then it is not responsible to the plaintiffs, or either of them. If you find that defendant did not exercise ordinary care, then you will go further, and ascertain whether the theft was the result of the want of such ordinary care. If you find it was the result of the want of ordinary care on the part of the defendant, and the plaintiffs were themselves in the exercise of due care, then the defendant would be answerable for the whole, or such part of the money lost as it was reasonable and necessary for these parties to have, taking them as travelers upon the journey that they were going, and having regard to the ordinary liabilities and expenses contingent upon such a trip."

The jury returned a verdict for the plaintiff in each case, and the defendant alleged exceptions.

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