Balto. Ohio R. Co. v. Strube , 111 Md. 119 ( 1909 )

The gravamen of the action in this case is the alleged use of excessive force and violence upon the appellee by William J. McCarron, a special officer of the appellant, in connection with the appellee's arrest for trespassing upon the appellant's property and right of way. The judgment below was for $1,000 damages in favor of the plaintiff, and the defendant has appealed.

The substantial facts of the case as testified to by the witnesses for the plaintiff are as follows: On March 1, 1908, plaintiff with four companions was returning along the tracks of the Baltimore and Ohio Railroad Company from a visit to a gypsy camp in Baltimore County. When plaintiff and his campanions had crossed the Viaduct bridge which separates Baltimore County from Baltimore City, Mr. McCarron walked up behind the plaintiff, grabbed him back of the neck and said "you are under arrest, didn't I tell you to stay off this railroad?" To which the plaintiff replied: "Yes, I suppose you did, but that has been six months or so ago, and it kind of left my memory."

Plaintiff then desired to be taken to the Southwestern Police Station in Baltimore City, but McCarron said he should go to Mt. Winans Police Station in Baltimore County. McCarron then still holding the plaintiff by the collar with one hand, and without plaintiff making any resistance, struck plaintiff several blows about the face with the other; then dragged him across the track, knocked him down and beat him while he was down. That as a result of the assault, plaintiff was rendered unconscious, two of his front teeth were knocked out, his lips were cut and swollen to twice their normal size, his mouth was bleeding, his right ear was swollen, his hearing imparied, and his neck also was swollen and painful.

After the assault, plaintiff went with McCarron to the Mt. Winans Police Station where the charge was preferred against him of trespassing on the property of the appellant, to which charge he plead guilty and was fined $2.20 which was paid and plaintiff thereupon released.

The plaintiff also called McCarron as a witness, who testified that in March, 1908, he was employed by the B. O.R.R. as special officer, that he was assigned to duty on the Baltimore Division, that his duties were to look after the company's property and also the care of records and car seals, to see that all the merchandise cars had their seals on arrival; and also that he had power to arrest people as trespassers; that on March 1, 1908, he arrested Strube and charged him with trespassing on the property of the Baltimore and Ohio Railroad.

On cross-examination McCarron stated that his power to arrest came from his commission as special officer. The commission was then offered in evidence, but does not appear in the record.

The testimony of the defendant's witnesses, in so far as it conflicts with that introduced on behalf of the plaintiff, was substantially as follows: That after Strube and his companions had passed over the Viaduct bridge and had gone about fifteen feet within the limits of Baltimore City, McCarron came behind and calling to Strube, asked him if he had not warned him to stay off the railroad property, and further said: "If you come back here I am going to take you to the station house." To which Strube replied, "you can lock me up now if you are able."

Whereupon McCarron took hold of Strube by the collar to arrest him, Strube made several passes at the officer, in the effort to hit him, and then the officer, still holding to Strube with his right hand, struck him with his left hand. Strube "fell and kept his hands over his face like he was holding on to the cross ties." That it was not true that McCarron struck the plaintiff more than once, or that the plaintiff became unconscious, or that plaintiff did nothing to resist arrest, or that McCarron cursed the plaintiff, or that he struck the plaintiff while he was down.

On cross-examination, by the plaintiff's attorneys, McCarron testified as follows:

"Q. When he said, you can't take me in now, if you wanted to; that insulted you?

"A. Yes, sir.

"Q. You took him then?

"A. Yes, sir.

"Q. If he had not said that, you wouldn't have taken him in at all?

"A. No, sir; if he had gone on, no, sir.

"Q. You did it just to spite him?

"A. No, no.

"Q. Did you say anything to the other boys?

"A. He told me I might arrest him if I was able, and then I arested him.

"Q. You arrested him to show you were able?

"A. It looks that way."

We have given the substance of the testimony on both sides, at some length, so that the questions of law presented by the prayers may be clearly understood.

During the progress of the trial the following questions were asked of McCarron on cross-examination and allowed to be answered against the defendant's objection:

"Q. How often have you been convicted of assault in Baltimore City or Baltimore County?

"A. I was arrested once when I was sixteen years old at a dance in Cowen's Hall, up here, and the man got fighting and I was arrested.

"Q. You were arrested and convicted at the Southwestern Police Station for this assault upon Strube, were you not?

"A. Yes, sir."

Separate exceptions were taken to the rulings of the trial Court as to both of these questions, but as they both involve, in part, the same principle of law, they will be considered together.

The ground upon which this evidence is sought to be justified is that it "goes to the credibility of the witness." More properly speaking it may be said to affect the weight of the witness' testimony in this case. Indeed the first question seems to have been framed with a view to eliciting information concerning the witness' general disposition for fighting. But in either aspect we think the question was admissible under the circumstances.

The issue was whether McCarron had made an unjustifiable assault upon the plaintiff. The plaintiff's testimony tended to prove that the assault was not justified. McCarron's tended to prove that it was. If the answer to the first question had shown that McCarron had been convicted of a number of assaults it would have reflected upon the weight of his testimony as the justification for the assault in this case. The answer however was of such a negative character as to be of little value either for or against the plaintiff and even if error it would have been harmless error.

The second question objected to, is admissible for the same reason as the first. The answer affects the weight of McCarron's testimony as to the character of the assault, and therefore in a sense his credibility as a witness. The case of Mattingly v.Montgomery, 106 Md. 461, is directly in point. The cases cited by appellant in support of its contention that such evidence is not admissible are not apposite.

Such evidence would not be admissible in chief for the purpose of proving the fact of the assault, but the questions are proper upon cross-examination of the person charged with committing the assault.

The third exception found in the record relates to the prayers. The principal points of the defendant's contention in regard to these are (1) that in making the arrest, McCarron acted as a commissioned officer of the State of Maryland, and not as an employee of the defendant, but if this first proposition be unsound, then (2) as soon as the arrest was completed, McCarron lost his dual capacity of officer and agent, ceased to be an employee of defendant and became only an officer of the State of Maryland, and that therefore defendant is not liable for theassault.

As to the first proposition, the commission spoken of is not in the record, and we are uninformed as to what authority it conferred upon McCarron, but assuming that it was a commission issued by the Governor under section 403 of Article 23 of the Code, we yet cannot yield our assent to such a proposition.

McCarron testified that he was in the employ of the defendant at the time of the arrest, that his duties were to look after the company's property, and that he had power to arrest trespassers.

We must assume that the plaintiff in walking along the right of way of the defendant company, was violating the law, for when taken before a Justice of the Peace, he plead guilty to the charge of "trespassing on the property of the Baltimore and Ohio Railroad."

The Court could not say as a matter of law that in making the arrest, McCarron was not acting within the scope of his employment as special officer of the defendant, or that he was then acting solely under his commission as an officer of the State of Maryland.

Such a question was one proper to be submitted to the jury under all the evidence in the case. As was said by this Court inDeck's Case, 102 Md. 669, at page 677, "the question whether the special officer or detective was acting within the scope of his employment as an employe of the company at the time of the commission of the act complained of, was a question for the jury to pass upon under all the facts and circumstances of the case."

Neither could the Court declare, under the evidence in the case that if the assault was made after "the arrest was actually completed" then the plaintiff was not entitled to recover.

An arrest is the seizing of a person and detaining him in the custody of the law. 1 Bouvier Law Dict., 166. An officer authorized to make an arrest may use necessary force. Ibid.

In this case both the arrest and the assault occurred on the railroad tracks of the defendant as part of one and the same transaction, apparently within the space of a very few moments of time, and it would not do under such circumstances for the Court to say or submit to the jury to say, that immediately after putting his hands on Strube and saying "I am going to put you under arrest," that thereafter McCarron ceased to be an employee of the defendant and became merely an officer of the State.

If McCarron was acting within the scope of his employment in making the arrest, the defendant would be responsible even if McCarron acted maliciously or wilfully in committing the assault, because the whole occurrence was but one transaction.

If McCarron was not acting within the scope of his employment in making the arrest, then of course the defendant would not be liable.

In this case the arrest and the assault must be treated as so merged together into one transaction as to be scarcely separable for practical purposes, even though theoretically they could possibly be regarded as distinct acts.

The ground of the master's responsibility for the malicious torts of his servants or agents is this, that where one of two innocent persons must suffer for the wrong of a third, the loss must fall upon him who has enabled the third person to do the wrong.

McCarron was a special officer employed and paid by the appellant, and assigned to duty on the Baltimore Division of its right of way. His selection was the appellant's and the appellant must bear the responsibility of his acts, if done within the scope of his employment. As stated by JUDGE BOYD in the case ofConsolidated Ry. Co. v. Pierce, 89 Md. 503, if the servant was acting at the time in the course of his master's service, and for his benefit, within the scope of his employment, the mere fact that he acted unlawfully, wilfully or wantonly, does not necessarily show that he is no longer in his master's employ.

We think there was evidence in the case proper to be submitted to the jury as to whether McCarron when he arrested the plaintiff was acting within the scope of his employment or not.

We must hold therefore that defendant's first special exception was properly overruled, and the plaintiff's second prayer properly granted. The defendant's objection to this prayer, based on the instruction taken from Twilley's Case. 106 Md. 445, cannot be sustained, because that was a prayer offered by the defendant and presents a counter proposition to that contained in the plaintiff's second prayer.

It would have been entirely proper for the Court below to have granted a prayer concluding for the defendant, modelled after the one referred to in the Twilley's Case, supra, but no such prayer seems to have been offered, and as we have said we see no objection to the form of plaintiff's second prayer as granted.

We think, however, that the form of the plaintiff's third prayer as to the measure of damages is objectionable.

In the case of Smith v. P.W. B.R.R. Co., 87 Md. 52, this Court said, quoting from Quigley's Case, 21 How. 213, that, "whenever the injury complained of has been inflicted maliciously or wantonly and with circumstances of contumely or indignity, the jury are not limited to the ascertainment of simple compensation for the wrong committed against the aggrieved person. But the malice spoken of in this rule is not merely the doing of an unlawful or injurious act. The word implies that the act complained of was conceived in the spirit of mischief or of criminal indifference to civil obligations."

And in B. O. v. Barger, 80 Md. 34, the Court said: "Whilst the provocation of the plaintiff may not justify an assault, yet if it be of such character as would naturally arouse the anger and passion of men of ordinary temperament, and it is not too remote, it is admissible in mitigation of damages."

There is some evidence in this case to the effect that Strube provoked McCarron to arrest him by "bouncing out of the gang," and starting an altercation with the officer, and afterwards provoked the assault by resisting arrest, and while not meaning to say that the plaintiff is not entitled to something more than compensatory damages, if the jury find for plaintiff at all, yet we think the plaintiff's third prayer was not drawn with sufficient accuracy to properly submit the question of punitive damages to the jury.

For the reasons we have already assigned, the defendant's first, second, third and fourth prayers which seek to withdraw the case from the jury were properly refused.

We think the defendant's fifth and ninth prayers, which seek to separate the assault from the arrest, faulty, under the circumstances of this case, for the reason as we have already said that both the assault and the arrest constitute but one and the same transaction, occurring wholly on the premises and right of way of the defendant, within a very short space of time, and under the circumstances it would have been improper to instruct the jury to attempt, for the purpose of wholly exonerating the defendant, to distinguish between them.

The defendant's sixth prayer is objectionable, because it leaves out of consideration the question whether the altercation resulting in the assault, did or did not arise out of the performance by McCarron of his duty as employee of the defendant.

If Strube was at the time unlawfully trespassing on the premises of the defendant, and for so doing he rendered himself liable to arrest by the special officer acting within the scope of his employment, the fact that he brought about his arrest by an altercation with the officer, and then provoked the assault by resisting arrest, would not wholly exonerate the defendant from the consequences of the use of excessive force and violence by McCarron upon him, though such provocation might be considered in mitigation of punitive damages.

Defendant's seventh prayer having been granted, is not before us for review.

Defendant's first and second special exceptions were properly overruled because there was evidence legally sufficient to warrant submitting the case to the jury.

But for error in granting plaintiff's prayer as to the measure of damages, the judgment must be reversed.

Judgment reversed with costs, and a new trial awarded.