Mulligan v. . N.Y. R.B.R. Co. , 129 N.Y. 506 ( 1892 )

The plaintiff recovered damages in this case upon an allegation that he was unlawfully arrested and imprisoned by the defendant. The legal question involved relates to the responsibility of the defendant for the conduct of a ticket agent under the following circumstances: On the 10th of July, 1888, the plaintiff and a companion went to the defendant's station at the corner of Atlantic avenue and Vesta street, Brooklyn, and procured from the ticket agent there two excursion tickets to Rockaway Beach. The plaintiff handed to the agent a new five dollar bill in payment for the tickets and received from him the tickets and the change. A very short time before the plaintiff and his friend appeared at the station and purchased the ticket a detective connected with the Brooklyn police force came to the station and left with the agent the following paper:

"Look out for three men passing $5 counterfeit bills, Garfield picture. One 35 years, blue coat, black slouch hat, small dark mustache. One 40 years, dark alapaca coat, black pants, slouch hat; the other 35 years, blue suit, black slouch hat, full red whiskers, looks like Italian." When the plaintiff and his companion came to the station the ticket agent supposed they were two of the parties described in the notice left with him by the detective. The agent's statement as to what took place between himself and the detective before the plaintiff appeared at the station and his action in consequence down to the time of the arrest is not contradicted. The agent was told by the detective that if any of these men referred to in the paper put in an appearance to have the officers arrest them. He says that the two men walked up to the window of the ticket office and the plaintiff took a grand new five dollar bill from his pocket and asked for two tickets for Rockaway Beach and return. What the agent then did is perhaps best expressed in his own language.

He says: "I took the money from him and gave him the two tickets; didn't let on anything at the time; took the bill and left it one side, because it looked `queer.' After the two went outside a messenger boy came in; I took the bill up before the messenger came; took a pin and pulled to find the two parallel silk threads that run through the bill, it appears, in all these kind of bills that are made with the distributor fibre through, it is like a pencil mark, red and blue, and when I picked at it I could not see anything in it, and as I have no instructions to arrest anybody, I took the bill and when the messenger boy came in I told him to take the bill, go up to the Howard House and see if he could find Detective McNeany. If he did, to give him the bill and tell him that the men who had the bill were here at the station. I told him that if he didn't find him to give it to the ticket agent at the Howard House, the detective said something about giving him the bill and to ask him if that was the bill. I sent the bill away by this boy, the same bill that I received. Afterwards Officer Kenney and the messenger boy came in. The bill was not returned to me. I never had the bill after I gave it to the messenger boy." It seems that in consequence of the action of the agent that the police arrived in a short time after the ticket had been purchased and while the plaintiff and his companion were sitting on a bench outside and as the plaintiff claims the agent pointed him out to the police and directed them to arrest him.

He was arrested and brought to the police court, when it appearing that the bill was good he was discharged. The transaction immediately preceding the arrest is thus described by the plaintiff:

"I went in and handed him in a five dollar bill to the ticket agent, asked him for two return tickets for Rockaway; he took the bill and looked at me; I thought that it was some young man that might have known me, he was going so slow, going to make the change and give me the tickets; and walked back in the rear of the office, there was an operator, a lady sitting there; he had some conversation with her and in another corner was a boy, in another corner of the room; he came back to me and looked at me again, I says, you ought to be in a little more hurry than that, he didn't say a word but handed me out the change and my return tickets — the change of the five dollar bill, which I think was four thirty, or whatever it was. Then we walked out on the platform, down on the Atlantic Avenue side and sat on the bench of the station platform for ten or fifteen minutes, waiting for the train to come up. It is a regular platform, I think there is a porch over it. I did not have to pass through a gate to go to it."

After the plaintiff was pointed out to the police by the agent, he was brought into the ticket office, and the agent then charged him with having passed to him a five dollar counterfeit bill, which the plaintiff denied, but gave to the agent another bill in its place. The agent denied that he gave any direction to the police to make the arrest, and there was some question on the trial as to whether the bill that was actually passed by the plaintiff was the bill produced before the police magistrate, and found by him to be good, but these questions must be regarded as settled in the plaintiff's favor by the verdict of the jury.

Assuming, as we must, that the agent directed the arrest, and that the plaintiff had committed no offense that justified it, the question still remains whether the agent was acting in the line of his duty, so as to make the defendant responsible for his acts. It is quite clear from the evidence that the agent was first put upon his guard and in fact set in motion, not by any direction from the defendant, but by the police. When he took the bill he knew, or at least believed it to be a counterfeit, but notwithstanding this, he gave the plaintiff defendant's property for it, whereas it was his duty, considering him merely as the agent of the defendant, to refuse it. He did not take the bill in the course of his business as agent, but for the purpose of entrapping persons that he believed to be engaged in the commission of crime. This may have been laudable enough on his part as a citizen, or as a person aiding the police, but he was not acting in the line of his duty as defendant's agent. If he had been cheated or imposed upon by the plaintiff, or if he honestly believed he had been, and then attempted to recover what he had, or supposed he had, lost by the arrest of the plaintiff, it might then be said that he was engaged in the protection of the property and interest of the defendant, and, therefore, acting within the line of his duty. But here a ticket agent of a railroad deliberately takes from a person, applying to purchase a ticket, what he believes to be a counterfeit five dollar bill, not, of course, in good faith, or in the regular and ordinary course of his business, but for the purpose of aiding the police in the detection of criminals, and then immediately directs the arrest of the person from whom he took the bill, such an act on his part is not binding on his principal. If he was in fact acting within the scope, and in the line, of his duty, he would have refused to receive what he believed to be counterfeit money for the property of his principal, and would have refused to part with such property, except upon receipt of what, at least, he believed to be good money. The defendant, as a citizen, might with perfect propriety render to the police such services as he could in procuring the detection and arrest of persons engaged in passing counterfeit money, but it does not follow that all his acts in that respect are binding on the defendant. The charge, therefore, that the defendant procured the plaintiff to be arrested without cause, was not made out, as the act of the ticket agent in this respect cannot be attributed to them.

The remaining question is whether it was shown that the defendant is liable for a breach of its contract with the plaintiff as a passenger, or for neglect of any duty it owed to him, growing out of the relation of passenger and carrier. The law is settled that a common carrier, by its contract of transportation, undertakes to protect the passenger against any injury arising from the negligence or willful misconduct of its servants while engaged in performing a duty which the carrier owes to him. (Stewart v. B. C.R.R. Co., 90 N.Y. 588.)

Upon the facts disclosed by the record, it is very difficult to bring this case within that principle. All we know with respect to the duties of the agent is that he sold tickets at the station from a place behind a window in the waiting-room. It does not appear that he had any charge of the place where the plaintiff was when arrested, or that the plaintiff was, within the meaning of the decisions, in his custody or under his protection, or that the ticket agent was entrusted by the defendant with any powers or duties with respect to the execution of contracts for the transportation of passengers. Upon the facts disclosed at the trial, it would be quite difficult, if not impossible, to classify the act of the agent, in pointing out the plaintiff to the police and directing his arrest, as negligence or willful misconduct. There can be no doubt that a conductor, or like agent of a carrier of passengers, who has them in his charge and under his care, may violate the duty which he owes to them by directing an arrest without cause, for which his principal may be held liable, but sufficient was not shown in this case to bring it within that rule.

The judgment should be reversed and a new trial granted, costs to abide the event.