Tolchester Beach Improvement Co. v. Scharnagl , 105 Md. 199 ( 1907 )

This is an action for trespass for assault, false arrest and imprisonment. The declaration alleges that on the 10th of July, 1905, the plaintiff, Joseph Scharnagl, purchased a ticket from Baltimore to Tolchester and return, and became a passenger on the defendant's steamboat Louise; that at said time the defendant was a common carrier of passengers and navigated the Patapsco River and Chesapeake Bay between the city of Baltimore and Tolchester in Kent County; that while a passenger on said steamboat en route to Tolchester the plaintiff was violently seized and arrested by a servant aud agent of the defendant, and taken from the cabin of said steamboat and confined in a lockup on said steamboat; that the said plaintiff when arrested as aforesaid was demeaning himself quietly and orderly with the other ladies and gentlemen who were of his party, and upon inquiry made of said servant, as he was being taken from the cabin to the lockup, why he was arrested, the only answer given him was that it was all right; that the plaintiff, after being placed in said lockup and kept there for sometime was released, and then informed that a mistake had been made and he was not the person intended to be arrested; that his arrest aforesaid was witnessed by a large number of passengers who were on said steamboat, and by said arrest and confinement in said lockup he was greatly mortified and humiliated and suffered great mental pain and anguish, and was otherwise damaged.

The defendant pleaded the general issue, and the case was tried upon the joinder of issue upon that plea, and resulted in a judgment for the plaintiff, from which this appeal was taken. One exception only — that to the ruling of the Court upon the prayers — is presented by the record.

It is not disputed that at the time of the commission of the wrongs complained of, the defendant was a common carrier, and that the plaintiff was a passenger for hire aboard its steamboat Louise as stated in the declaration. The relation of passenger and carrier being shown to exist between the appellant company and Joseph Scharnagl, the law imposed upon the carrier a primary duty to protect him during the existence of that relation, and if he were unjustifiably assaulted or arrested, or imprisoned whilst that relation continued by the servants or agents of the carrier, while acting within the scope of their duty, the carrier would be liable. This proposition is so firmly settled in this State and elsewhere that it seems needless to quote authorities to support it. In B. O.R.R. Co. v. Cain, 81 Md. 105, which was an action for false imprisonment wherein it appeared that the plaintiff was arrested and imprisoned whilst a passenger by order of the defendant's conductor this Court, speaking through JUDGE McSHERRY, said: "If the plaintiff had been guilty of no breach of the peace, his arrest at the instance of the conductor was unlawful, and having been made in the defendant's depot whilst the plaintiff, a passenger, was still entitled to be protected against assaults and injuries by the defendant's own employees, if wrongfully made by or at the request of the defendant's own servants whilst they were in and about the performance of their prescribed duties, the master would be liable." In Central Railway Company v.Peacock, 69 Md. 262, the Court said: "The Supreme Court of the United States, in New Jersey Steamboat Company v. Brockett,121 U.S. 645, decided unequivocally that the carrier of passengers must protect his passengers from the violence of the carrier's employees, as also from that of other passengers; but there is nothing in the decision in conflict with the doctrine that to render the carrier liable the employee must be at the time acting in the employment of the railroad, and within the line of his duty, and the decision assumes that the party is a passenger when injured; for that was the fact in the case." The statement of the law by this Court is in harmony with direct decisions in other jurisdictions. Indianapolis R. Co. v.Cooper, 33 N.E. 219; Duggan v. B. O.R.R. Co., 59 Pa. 248.

Scharnagl being a passenger for hire, and the defendant's duty towards him being established, we will now inquire whether there is found in the record evidence tending to prove the allegations of assault, arrest and imprisonment found in the declaration. Upon this branch of the case the testimony, as usual, is conflicting, but with the weight and credibility of the evidence this Court has nothing to do, those matters being committed by the law to the sole and exclusive judgment of the jury. The question which this Court is called upon to decide is this: Assuming the evidence offered by the plaintiff to be true, is it legally sufficient to support the averments of thenarr? The appellee, Joseph Scharnagl, testified that he was a resident of Baltimore City, that at the time of the institution of the suit was twenty years of age; that on the afternoon of the 10th of July, 1905, he purchased a ticket at the office of the defendant company on Light street in Baltimore City for a trip by the defendant's steamboat Louise to Tolchester; that after getting his tickets he went aboard the boat; that after the boat had gotten a little distance past Fort McHenry on its way to Tolchester the wrongs complained of were committed, and are thus described by the appellee in his testimony: "Just about abreast of Fort McHenry, as I was standing with this company of mine listening to a party playing on the piano, and a few other company, but not of mine, singing, and I was standing there thinking of nothing, when here comes this officer up and grabs me by the neck and wrist, and as he takes me to the steps, I says, what's the trouble, and he says, never mind what's the trouble, you come with me. He goes down on the deck below, and that is where these witnesses were standing; they don't see me put in the lock-up; it was a dark place, and he unlocked the door and throws me in as if I was a dog. I was in there fifteen or twenty minutes. I don't know whether the officer went out or not, but he came back and unlocked the door, and as he unlocked it he grabbed hold of me. He stood there and looked at me, and he said: Ain't you the gentleman I put off this boat for being drunk this morning? And I said, you must be mistaken; and he said, don't contradict me that way; let me see your ticket; and I showed him the ticket, and then he released me, and I went up on deck; and as I was on deck every now and then I could hear a person say, ``there goes the young gentleman that was put in the lock-up.' How would any body else like to be done that way." (Record, 4).

This testimony as to the assault and arrest is corroborated by four witnesses who were present, and, if true, a most unwarranted and humiliating outrage was committed upon the the plaintiff. The evidence shows that this maltreatment was inflicted upon the plaintiff by John Freeburger, and in order to hold the appellant liable for his act, the plaintiff was bound to prove, under the principles stated, to the satisfaction of the jury, first, that Freeburger was an employee of the defendant, and secondly, that he was acting within the scope of his duty as such employee.

The testimony shows that Freeburger occupied a dual capacity on the boat. He was commissioned by the Governor as a policeman, under sec. 403, Art. 23, Code, 1904, for the protection of the appellant's property, and for the preservation of peace and good order on its premises. He was recommended to the Governor for appointment by the appellant, his compensation was paid by it, and he was dischargeable by it in the manner pointed out by sec. 407 of that Article. He undertook the enforcement of all rules, orders and regulations of the appellant among the passengers on the boat, and as special officer he enforced all orders, rules and regulations that the company might promulgate and communicate to him, connected with the proper deportment of passengers. This state of facts was amply sufficient to have taken the case to the jury upon the question as to whether he was acting at the time as an employee of the appellant, and within the scope of his employment. Tolchester Beach Co. v. Steinmier, 72 Md. 317;Deck v. B. O.R.R. Co., 100 Md. 168; B. O.R.R. Co. v.Deck, 102 Md. 669.

The first, second and third prayers of the plaintiff, which will be set out in the report of the case, are based upon correct legal principles, and submitted the case fairly to the jury. The defendant's first, second and third prayers sought to withdraw the case from the consideration of the jury, and were properly refused. There was no evidence to support the hypothesis of the defendant's fourth prayer, and for this and other reasons it was rightly rejected. The defendant's fifth, sixth, seventh, eighth and ninth prayers, which were granted, put its defense fully before the jury. The fifth prayer was most favorable to the defendant, and announced a principle which we are not to be understood as approving. Finding no reversible error in the rulings, the judgment will be affirmed.

Judgment affirmed with costs to the appellee.