Hilliard v. Goold , 34 N.H. 230 ( 1856 )

Fowler, J.

The first question raised relates to the admission of the evidence as to the establishment and advertising of the rates of fare on the Atlantic and St. Lawrence Kailroad. It appeared that they were established and advertised by order of the president of the corporation, but no direct evidence was offered that this was done by the authority of the directors.

By the provisions of the statute, “ every railroad corporation in this State shall establish from time to time and cause to be posted up in their depots, the rates or tariff of tolls between the several stations of such road, and between such stations and the stations of other roads with which they have a business connection for the conveyance of freight and passengers,” &c. Comp. Stat. 354, sec. 62.

This power may be delegated by the corporation to suitable officers, or they may employ proper persons to promulgate and make known their action in the premises. Indeed, it is the only mode in which a corporation can exercise their powers. Commonwealth v. Power & als., 7 Cushing 601.

The same presumptions are applicable to corporations as are continually made in relation to private persons. Persons acting publicly as officers of the corporation are to be presumed rightly in office ; acts done by the corporation which presuppose the existence of other acts to make them legally operative, are presumptive proofs of the latter. Grants and proceedings beneficial to the corporation are presumed to be accepted, and slight acts on their part which can be reasonably accounted for only upon the supposition of such acceptance, are admitted as presumptions of the fact. If officers of the corporation openly exercise a power which presupposes a delegated authority for the purpose, and other corporate acts show that the corporation must have contemplated the legal existence of such authority, the acts of such officers will be deemed rightful, and the delegated authority will be presumed. Panic of United States v. Dandridge, 12 Wheaton 64.

In this case the open and public establishment and advertising of the tariff of fare and freight by the president of the road presupposed a delegated authority from the corporation, and the acts of the corporation in receiving and appropriating the tolls thus established, recognized the existence of such authority in him, and therefore his acts are to be deemed rightful, and to have been performed in the exercise of the proper authority delegated to him by the corporation. Moreover, his proceedings in establishing and posting the tariffs were beneficial to the corporation, and may therefore well be presumed to have been accepted and adopted by them; for their reception and appropriation of the tolls so established, without objection, can only be reasonably accounted for upon the supposition of such acceptance. Angelí & Ames on Corporations 177, 178, and authorities.

We are unable to perceive how the character of the use of the Atlantic and St. Lawrence Railroad by the Grand Trunk Railway can affect the rights or liabilities of the defendant. The case finds that the plaintiff took a seat in the cars of the Atlantic & St. Lawrence Railroad, and that the defendant was a conductor of that road, in charge of the train upon which the plaintiff took passage. Now, it seems to us wholly immaterial to the merits of the controversy between these parties, whether that road was operated by the corporation to which it originally belonged, at their own expense, or by some other corporation, or even by some private individual.

The statute makes it the duty of the conductor on each railroad to collect the tickets or require the fare to be paid, as established, and, in case of neglect or refusal to pay, authorizes him to employ the necessary force to remove the delinquent passenger from the train, and subjects him to a fine of from one to ten dollars for any omission of his duty in this behalf. Comp. Stat. 354.

We apprehend the provisions of this statute were intended to apply to every person properly acting in the capacity of conductor upon any railroad, without regard to the manner of his appointment, or the source from whence his compensation might be derived. They were designed to protect the stockholders, and through them the public, from the injurious practice of free riding, and to accomplish this purpose must be obligatory on every person rightfully in charge of any passenger train.

It would hardly be contended that a conductor upon a road operated by the mortgage bond-holders, of which there are now several in this State, could excuse himself for violating any of the provisions of the statute, because he was in the employment, and the road on which he was employed was operated at the expense and for the benefit of the trustees of those bond-holders. Such an excuse would evidently be a clear evasion of the letter as well as the spirit of the law, and if not thus excused, then such conductor would be justified, and not only that, imperatively required, to expel from the cars any person refusing to pay the established fare, when requested.

The uniform discrimination in the established tariff of five cents in favor of those passengers who purchase tickets, over those wtho pay after taking seats in the cars, besides the convenience with which it is attended, is so clearly just and reasonable, and so manifestly for the interest of the railroads, in bringing into operation the only check they can have upon the honesty and fidelity of their conductors, that we think its legality is not to be doubted. It has been directly sustained by repeated decisions in other States, and we see no reason to question its propriety. Any passenger, who, having neglected or refused to purchase a ticket, shall refuse to pay the additional fare thus established, may rightfully be expelled from the cars in a proper manner.

But the principal question in this case arises upon the ruling of the judge before whom it was tried, that the defendant was not justified in putting the plaintiff out of the cars at the time and place, and in the manner disclosed by the evidence, and that consequently the plaintiff was entitled to a verdict as a matter of law, without submitting to the jury the question of the propriety or impropriety of the defendant’s conduct in ejecting him from the cars under all the circumstances of the case.

The defendant’s brief statement set forth that he was conductor upon the railroad, that the plaintiff was a passenger, and refused to pay the lawful and established fare, wherefore he gently and without unnecessary force' removed the plaintiff from the car at a suitable time and place, and under proper and suitable circumstances. If the defendant had filed a special plea instead of this brief statement, it must have resulted in an issue to the jury upon the question whether unnecessary force was used by the defendant in removing the plaintiff from the cars, at a suitable time and place, and under proper and suitable circumstances ; in other words, whether the defendant had exceeded the authority vested in him and the duty imposed upon him by the statute. The rights of the parties and the course of the trial were not affected by the form of the pleadings. There is no doubt the brief statement set forth a sufficient justification ; if not, that question should have been raised by a motion to reject it. As no such motion was made, the only question upon the pleadings was simply whether the defendant had proved his justification as he had alleged it, or whether in ejecting the plaintiff he had exceeded the authority with which he was clothed ; and that surely it was for the jury and not the court to pass upon. It was a pure question of fact, such as it is peculiarly the province of a jury to decide.

To balance evidence, weigh probabilities, determine the credibility of witnesses, and draw inferences and conclusions from circumstances proved, belong to the jury. The province of the court is limited to the determination of the competency or incompetency of the evidence, from which the jury may or may not make the requisite inferences of fact. Pray v. Burbank, 11 N. H. 290.

If the court assume the truth of facts, or, what is the same thing, that a certain result is established by them, without submitting them to the jury, and peremptorily instruct the jury that upon those facts the plaintiff is entitled to recover, it is error. Duvall v. Farmers' Bank, 7 Gill & Johnson 44; Ragan v. Gaither, 11 Gill & Johnson 472.

In the present case the court seem not only to have assumed that the facts proved were true, but that they established a certain conclusion, to wit, that the defendant had exceeded the authority vested in him, under the circumstances disclosed. This seems to have been clearly wrong.

In trespass for assault and battery, violence can be justified where the safety of the defendant’s person was endangered by the plaintiff’s own assault. But every assault will not justify a battery, and it is matter of evidence whether the assault was proportionate to the battery. 1 Stephens’ Nisi Prius 216; Cockcroft v. Smith, 2 Salk. 642; Dance v. Lucy, 1 Sid. 246.

If the plaintiff’s own assault be pleaded, and the evidence will establish that the defendant’s battery was excessive, the plaintiff may, under de injuria, and without a special replication or new assignment, give in evidence the excess. 1 Chitty’s Plead. 627; Curtis v. Carson, 2 N. H. 539.

So, also, where the plea is moderate castigavit. Hannen v. Edes, 15 Mass. 347, or, molliter manus imposuit. Bennett v. Appleton, 25 Wendell 371.

Under the plea of moderate chastisement, the defendant must produce evidence of misbehavior on the part of the plaintiff, sufficient to justify the correction given, and show by evidence that the correction was reasonable and moderate. 2 Greenl. Ev., sec. 97; 1 Saunders’ Pl. & Ev. 107, and authorities.

So, under the plea of molliter manus imposuit, it must appear by evidence that no more force was employed than the exigency reasonably demanded. 2 Greenl. Ev., sec. 98.

In all these cases the question is for the jury to determine. In Imason v. Cope, 5 C. & P. 193, which was trespass for an assault and battery by the defendant, who was one of the marshals of London, and undertook to justify on the ground that it was his duty to keep clear the passage which the plaintiff at the time of the assault was obstructing, Tindal, C. J., in summing up to the jury, remarked : “ If the defendant was at the time acting in the performance of his duty, undoubtedly any act he did, in the fair execution of that duty, might have been justified by him on the present occasion. The question you have to consider is, whether the course he took with respect to this plaintiff was not an excess of the duty he had to perform, and of the authority he then bore with him. Because, if it was, you are then bound to give the plaintiff a fair compensation in damages for any injury occasioned in that manner. Undoubtedly the defendant would be justified in using a moderate degree of pressure to remove a person opposing those for whom he was bound in the discharge of his duty to make a passage. Or, if any resistance occurred, then a more violent degree of pressure might be used. But it does not appear that any resistance was offered, beyond what the necessity of the case rendered absolutely necessary. Therefore, you have to say whether a blow which appears to have been struck instantly, without any attempt to remove the plaintiff by other means, was or was not an excess of the authority which the defendant exercised at the moment.”

This case, as presented in the evidence and summed up by the learned chief justice, would seem,.to have presented a much stronger occasion for the instructions now under consideration, than the one before us ; yet the question of the excess pf authority was distinctly submitted to the jury, although the result could not have been doubtful.

In Eyre v. Noisworthy, 4 C. & P. 502, which was trespass brought by a waterman who had wrongfully attached his boat to the defendant’s ship by a rope, against the captain of the ship, who had thrown a stone against him to make him let go the rope, the defendant filed two special pleas, justifying the throwing of the stone, as absolutely necessary to cause the boat to be cut off, and because the object could be effected in no other mode. The same learned chief justice, in closing his charge to the jury, said, “The points for your consideration are these: First, are you satisfied, that, in its natural and necessary consequence, the throwing of a stone tends to loosen and disannex a rope ? If you are not, then you will find for the plaintiff. And, secondly, if you think that there was any other practicable mode by which the effect could have been produced, in that case you will find your verdict for the plaintiff.”

So also in Sampson v. Smith, 15 Mass. 366, where the jury were instructed that if they believed from the evidence the punishment inflicted by a shipmaster was cruel and vindictive, they should find for the plaintiff, although he had rendered himself liable to punishment, which the defendant had the right to inflict. The true rule on this subject, to be deduced from all the authorities, would seem to be, that whenever the justification of any act, alleged to be wron'gful and injurious, is based on the exercise of authority, whether that authority be incident to the official character and duty of the party exercising it, or arise from the misconduct of the opposite party and the necessities of the case, the question of the excess of such authority is to be determined by the jury, upon the evidence submitted for their consideration, and not by the court.

Applying this rule to the case before us, we are clearly of opinion that the jury should have been instructed to say, upon all the evidence presented before them, whether the defendant did his duty under his authority as a conductor under the statute, in ejecting the plaintiff from the cars at the time and place, and in the manner he was shown to have done it. Instead of this, as they were instructed that the plaintiff was entitled to their verdict as a matter of law, leaving only the amount of damages to be determined by them, the verdict must be set aside and a New trial granted.