Manning v. Atchison, T. & S. F. Ry. Co. , 42 N.M. 381 ( 1938 )

The plaintiff recovered damages from the defendant in the sum of $350.00 for wrongful ejection from the latter's train at Belen, New Mexico, upon which she was traveling as a paid passenger from Albuquerque, New Mexico, to El Paso, Texas.

A man complained to the Albuquerque police that two negro women had stolen $50.00 from his pocket. It was later learned that two negro women had boarded a train at Albuquerque with tickets for El Paso, Texas. A Jane Doe warrant was issued and the night captain of police communicated with the agent or special officer of the defendant at Belen, New Mexico. He gave a description of the women and requested that the pickpockets, if found on the train, be detained. Instead of the pickpockets the plaintiff, a resident of Albuquerque for fourteen years, and lately graduated from the high school, and her sister, respectable colored women of good reputation, in no way connected with the alleged offense, were taken off the train at Belen. The testimony is in sharp conflict. Appellee claims that the conductor ejected her and her sister from the train without giving them any reason for so doing or telling them that they were charged with a crime. The conductor, on the other hand, testified as follows:

"A. When I took up the tickets from all the passengers as I came along I came to these two women that were passengers on the train in the chair car and I asked for their tickets and they gave me their tickets; * * * When we got to Belen the train stopped there and I was on the platform of the car, the front end where we discharge passengers, and my porter was at the bottom of the step when the passengers that were getting off at Belen came out onto the platform. I started to step off behind them and the special officer stepped in front of me and he had a paper in his hand and he said: ``I have a message from the Albuquerque Police Department.' * * * He was an officer of the railroad company and I knew him because he had his cap on that said ``Station Agent,' or ``Station Master,' but of course he had to show me some authority for going in there and removing a passenger. When he said, ``I have a message from the Albuquerque Police Department to take two colored women off your train with tickets for El Paso, and have you those women on your train'? then I said to him, ``I have two colored passengers, women, on the train and they have tickets from Albuquerque to El Paso and return, and I will point out my passengers to you if you will come inside with me.' Which he did. And I said to the two girls, women passengers, ``This officer wants to see your tickets,' and after I said that I walked out of the car. I didn't speak one word to these women outside of that, nor to any other person. I didn't say anything to the officer only just that because I had other duties to perform there, and I walked out of the car to attend to those other duties."

If the conductor had known that the special officer was a deputy sheriff, and was acting as such, his conduct, if as delineated, would have been exemplary. Brunswick W.R. Co. v. Ponder, 117 Ga. 63, 43 S.E. 430, 60 L.R.A. 713, 97 Am. St. Rep. 152; Owens v. Wilmington, Etc., R.R. Co., 126 N.C. 139,35 S.E. 259, 78 Am. St. Rep. 642; Beasley v. Hines, 143 Ark. 54,219 S.W. 757, 15 A.L.R. 864 and anno. 885; Louisville N.R. Co. v. Byrley, 152 Ky. 35, 153 S.W. 36, Ann.Cas. 1915B, 240 and note; Chesapeake O.R. Co. v. Pack, 192 Ky. 74, 232 S.W. 36; note 15 A.L.R. 886; Thompkins v. Missouri, K. T. Ry. Co., 8 Cir.,211 F. 391, 52 L.R.A., N.S., 791; Clark v. Norfolk W.R. Co., 84 W. Va. 526, 100 S.E. 480, 7 A.L.R. 117; Gassenheimer v. W. Ry. of Ala., 175 Ala. 319, 57 So. 718, 40 L.R.A., N.S., 998 and notes; Mayfield v. St. Louis, I.M. S.R. Co., 97 Ark. 24, 133 S.W. 168, 32 L.R.A., N.S., 525; 10 Am.Jur. 272; 4 R.C.L. 1181. At page 1193 of 4 R.C.L., § 617, it is stated:

"Where an arrest is sought to be made on a train by persons known to the crew to be officers of the law, and there is nothing to put them on notice that it is irregular, the carrier is not liable for failure of the trainmen to interfere and prevent it, or because of unnecessary violence to which the officers subject the passenger in making it, where the carrier's servants do not assist in such arrest. The duty imposed does not obligate either the carrier or its servants to offer active resistance to the officer of the law, or to inquire into the authority under which he assumes to act."

Whether a railway company is responsible for the trespass of its special officer, wearing the garb of a railway employee, who removes an innocent passenger from a train without disclosing the purpose, and later, in the capacity of deputy sheriff, arrests the passenger, we are not called upon to decide, since the court found that the conductor was alone responsible for the removal of plaintiff.

The findings are that, without making inquiry or investigation as to the identity of the parties, the conductor requested the plaintiff and her sister to leave the train at Belen; that they asked why they were being put off, but were not informed, and that they were removed from the train against their respective wills. The court also found:

"That when said plaintiff and her sister left said defendant's train pursuant to the request of defendant's conductor, the said conductor placed the said plaintiff and her sister in the custody of H.L. Rickard who was an agent and employee of said defendant.

"That said defendant by its agent wrongfully and unlawfully ejected and imprisoned said plaintiff and her sister when no criminal charge whatever had been made against the said plaintiff and her sister.

"That the failure of the defendant's conductor of the defendant's train and the special officer of the defendant who had the plaintiff and her sister in charge after their said removal from defendant's train to interrogate the plaintiff and her sister as to who they were, their names and their places of residence, was an act of gross injustice on the part of the defendant's conductor and on the part of defendant's officer, H.L. Rickard, and exhibits gross negligence on the part of the said defendant's conductor and said defendant's officer and agent.

"That the descriptions which were given by officer, Russell C. Charlton, to the defendant's ticket agent at Belen, New Mexico, was not observed by the defendant's ticket agent at Belen, New Mexico, as the plaintiff and her sister who were unlawfully restrained at Belen, New Mexico, did not fulfill the descriptions that officer, Russell C. Charlton, communicated to the defendant's agent at Belen, New Mexico, and that there was not even a faint resemblance to the plaintiff and her said sister."

The Jane Doe warrant (the validity of which may well be questioned, 6 C.J.S., Arrest, p. 578 § 4; 5 C.J., p. 394; 4 Am.Jur., p. 9) was issued in another county and was not in the hands of the deputy sheriff at Belen. His only authority was a message from the police department of Albuquerque containing the description of the two negro women pickpockets for whom the warrant was issued. Appellant cites 2 R.C.L., p. 450, par. 6, which states:

"Probable Cause for Arrest of Suspected Person. In cases in which an arrest without a warrant may be made by a police officer or private individual, of a person suspected of having committed a felony, the person making the arrest may act either upon facts within his own knowledge or on those communicated to him by a responsible person. He has no authority, however, to arrest on the mere belief that a person has been guilty of an offense, if such belief has no foundation in fact or sufficient circumstances on which to rest, or if he unreasonably acts at the request of a third person who himself has a mere suspicion of the guilt of the one who is arrested. To afford a justification there must be not only a real belief and reasonable grounds for it, but where there is an opportunity to make inquiry proper investigation as to the facts should be made, and an officer is not warranted in relying upon circumstances deemed by him suspicious, when the means are at hand of either verifying or dissipating those suspicions without risk, and he neglects to avail himself of those means. * * *"

The court found that there was no investigation made and there evidently was no care or discrimination exercised, since the Albuquerque police officer reported to his superior as follows:

"I called ticket agent at Belen and read him the description of the women and told him if the women on the train answered the description closely to take them off. * * These women do not answer the description that I gave the ticket agent. * * * There is not even a faint resemblance between the two women they held and the description I gave them. * * *"

It is the duty of an officer before making an arrest without a warrant not only to make a careful investigation as to the identity of the accused, but to give the party notice. 6 C.J.S., Arrest, p. 602, § 6, states the rule as follows:

"It is, ordinarily, incumbent on an officer, seeking to make an arrest, without a warrant, to inform the accused of his authority or official character, of his intention to arrest him, and of the offense for which he is being arrested. * * The reasons for so doing are as great, if not greater, than where there is a warrant. * * * An officer must make a reasonable disclosure, adapted to the circumstances, of his character and purpose; but, as a general rule, the notice is sufficient when it is such as to inform a reasonable man of the authority and purpose of the one making the arrest, and the reason thereof. Circumstances, without express words, may afford sufficient notice."

See, also, 4 Am.Jur., p. 32, § 48. If the plaintiff had been given notice it is probable that the blunder would have been avoided. The porter of the train was an old acquaintance of plaintiff, and there were other colored friends on the train. She was only thirty miles from her home where her father was well known and was employed by one of the banks as janitor. He had a telephone in his residence and if the railroad employees had given any consideration whatever to the plaintiff they would have promptly discovered that plaintiff and her sister were not the women wanted. The only similarity pointed out by the witnesses for the railway company between the plaintiff and her sister, on the one hand, and the description of the pickpockets given by the police officer in his message, was that they were negroes.

It is obvious from the facts found by the court quoted above, which are supported by substantial evidence, that the conductor took in hand the matter of the removal from his train of the plaintiff and her sister upon receiving the communication from the special officer, and without inquiry as to identity or description of the parties wanted by Albuquerque officers, other than that they were negro women bound for El Paso, proceeded to eject the plaintiff and her sister. Appellant cites Anania v. Norfolk W. Ry. Co., 77 W. Va. 105, 87 S.E. 167, L.R.A. 1916C, 439; Burton v. N.Y. Cent. H.R.R. Co., 147 A.D. 557,132 N YS. 628, affirmed 210 N.Y. 567, 104 N.E. 1127, and other cases where the law officers forced passengers to alight from trains after they had been arrested. Here the conductor put the passengers off his train before the officer uttered a word to the passengers. This was positive misconduct toward the passengers. His only thought seems to have been to quickly rid his train of the women. That plaintiff's ejectment was wrongful and that the conductor trespassed upon her rights and breached the railway's contract safely to transport the plaintiff and to protect her against the misconduct of the company's employees clearly appears. The defendant is liable for the acts of its conductor under the circumstances of this case.

"A carrier is ordinarily liable for any acts of its employees committed within the scope of their general authority and resulting in the wrongful expulsion of a passenger. Thus, the conductor of a railroad train or street car in ejecting a passenger therefrom is acting within the scope of his general authority, and the carrier is liable for the manner in which he performs this duty. * * * § 1537. What constitutes Ejection. A passenger, whether right or wrong in a dispute with a conductor, is under no duty, either legal or moral, to remain on the train until the conductor resorts to force for the execution of his commands. He is regarded as having been ejected if he obeys a command to leave the train or vehicle of the carrier. If this is wrongful, a cause of action arises. * * *" 10 Am.Jur., p. 311, 312.

See, also, Gillingham v. Ohio River R.R. Co., 35 W. Va. 588,14 S.E. 243, 14 L.R.A. 798, 29 Am. St. Rep. 827; Texas Midland R. Co. v. Dean, 98 Tex. 517, 85 S.W. 1135, 70 L.R.A. 943; Moore v. Louisiana Arkansas Ry. Co., 99 Ark. 233, 137 S.W. 826, 34 L.R.A., N.S., 299; St. Louis, Iron Mountain So. Ry. Co. v. Tukey, 119 Ark. 28, 175 S.W. 403, L.R.A. 1915E, 320; Norfolk W.R. Co. v. Galliher, 89 Va. 639, 16 S.E. 935; Elliott v. Philadelphia Camden Ferry Co., 83 N.J.L. 625, 83 A. 899; George v. Norfolk W.R. Co. et al., 78 W. Va. 345, 88 S.E. 1036; Atchison, T. S.F. Ry. Co. v. Henry, 55 Kan. 715, 41 P. 952, 29 L.R.A. 465.

Other questions are argued, but in our view of the case it will not be necessary to consider them.

Finding no reversible error in the record, the judgment of the district court will be affirmed, and it is so ordered.