[36]*36Opinion op the Court by
William Rogers Clay, Commissioner.
Reversing.
Alleging that he was wrongfully and unlawfully accused of drinking intoxicating liquor, and assaulted' and arrested, while a passenger on defendant’s passenger train, plaintiff, John Byrley, brought this action against the defendant, Louisville & Nashville Railroad Company, to recover damages. The jury returned a verdict in his favor for $500. The railroad company appeals.
The facts, briefly stated, are as follows:
During the month -of April, 1911, plaintiff obtained a ticket from Middlesboro, Kentucky, to Barbourville, Kentucky, and took passage on one of defendant’s passenger trains a,t Middlesboro. When the train reached Pineville, Messrs. John C. White and Carlo Lyttle entered the train. Plaintiff turned over one of the seats, and the three sat down together. In a short time a stranger, who seems to have known plaintiff, sat down by plaintiff. Plaintiff saw a bottle of whiskey in the stranger’s pocket, and pulled it out and shook it. He then returned the bottle ito the stranger, who asked each one of those present to take a drink. Plaintiff declined^ and so did Messrs. White & Lyttle. Finally Mr. Lyttle consented to and did take a drink. The stranger then pressed the bottle to his lips, but whether he drank any or not does not appear. Just then a man occupying a seat four or five seats behind the party came running forward with his hand on his right pocket. What then took place is detailed by plaintiff in the following language:
“Yes sir, ¡and he isays, ‘you all consider yourselves under arrest;’ and I said, ‘what have we done;’ and so did Mr. Lyttle; and he says, ‘you have all been drinking ion this train,’ and Mr. Lyttle said, ‘gentlemen is that a violation of the law,’ and he says, ‘yes, sir,’ in a vigorous mean way. I could not speak it like he did. Mr. Lyttle says, ‘I am a lawyer, and read law, and have been practicing law a long time and I have never seen that in the statute.’ He says, ‘if I get the conductor will you surrender?’ I says ‘yes sir, we are law-abiding men, if you will get the conductor and he says it’s a violation.’ He started for the conductor and when he got to the door the conductor was coming in, and he remarked to the conductor, ‘I have these men all arrested for drinking;’ and the conductor says, ‘ that it is all he can do-, gentlemen, he has a perfect [37]*37right to arrest you ’ 'And I says, ‘all right, we submit;’ we went to- trying to fill a bond. I offered bim any kind of a bailable bond, and be says no, he was going to take us to Corbin and put us in the lockup, and if we failed to pay or replevy he would work us on the streets, and that meant that he would not give us a trial before 9 or 10 o’clock the next day. I -says, ‘partner if this crime is committed take ns to- Barbourville. If we have to go to jail we had rather go to Barbourville where we -are known, and we had rather stand a trial there than anywhere else, and it don’t iseem right for you to- take us away from Knox -County to W-hitley 'County; ’ and he said he was going to take u-s .right on; some -of them agreed to put up the money and ask me how much it would be and he said $10. Mr. Lyttle got out a cheek book to pay fo-r ns, and I had money for myself and Mr. White, and he would not take a check andhe remarked‘it’s $15.00.’ I -said ‘Mr. Lyttle, you give him your -check;’ he refused to take Mr. Lyttle’s check; -and when he did that I -says, ‘I will put up the money for us thr-e-e and this gentleman can take care of him-se-lf. I -didn’t know .anything -about the -stranger; and he raised it up to $15.00, iand Mr. Lyttle says, ‘I am an -old man -and by hell you are treating us- wrong;’ 'and he says, ‘it is -$5 for costs.’ I gave him. a $20.00 bill, the tu-S'Sel started at Plat Lick and by that time we were at Artemus, he went on and got the change and came back, and he loped me for mine -and I says, ‘I have not drank a drop and have not touched it, and I can prove by ever man on this train I haven’t drank any, have not drunk a drop, ¡and I don’t know why y-ou are pulling us, and Mr. White has not drank either. ’ He says ‘I will release you’ iand th-e train blowed for Barbourville, about that time. He turned me l-o-ose just as th-e train -stopped here at Barbourville.”
Plaintiff further says that when they asked the officer’s authority the -officer said he was .a railroad detective, and if he -didn’t do this he would lose his job. This evidence was -objected to, but the objection was overruled. Plaintiff also says that the officer talked to the crowd in a boisterous and .rough manner, and abused the members of the party. They did not surrender until he got the conductor. When the conductor came they surrendered at once. There were several people in the car at the time, and plaintiff was much humiliated by what took [38]*38place. The arrest took place at Plat Lick, in, Knox County. With the exception of Mr. Lyttle, none of the three in plaintiff’s party had taken a drink, and the arresting officer was repeatedly assured of this fact. The conductor, was very polite, and treated the party in a kind and courteous manner. The evidence of Messrs. White and Lyttle is substantially the same as that given !by plaintiff.
Chapter 18, Acts of 1910, provides as follows:
“1. That any person who shall, in or npon any railroad locomotive, passenger coach, interurban car, street car, or in or npon any vehicle commonly used fox the transportation of passengers, or in or npon any common carrier, or iin or about any railroad depot, station, ticket office, waiting’ room, or platform, drink any intoxicating liquor of any kind; or if any person shall be drunk or disorderly in or upon any railroad passenger Coach, interurban car, street railway, or in or upon any vehicle commonly usied for the transportation of passengers, or in or npon any common carrier, or in or about any railroad depot, station, ticket office;, waiting room, or platform, such person or persons shal be deemed to be guilty of a misdemeanor, and upon conviction thereof, shall be fined not less than ten ($10.00) dollars nor more than fifty ($50.00) dollars, ox imprisoned not less than ‘ten nor more than thirty days; or both so- fined and imprisoned in the discretion of the Court or jury: Provided, that the foregoing’ section shall not apply to any person drinking intoxicating liquors purchased by him in or upon any buffet or dining oar operated by a common carrier in this- Commonwealth.
“2. Any person violating the provisions of Section 1 of this act shall be tried in any Court of competent jurisdiction in the county where- the offense- shall have been committed.
“3. It shall he the duty of every railroad conductor of a ste-am, interurban or street railway, and station, depot, or ticket agent of said railway when he sees any person violating the provisions or any»of them of Section 1 of this Act, to- at once notify the nearest or most convenient sheriff, -constable; town marshal or policeman, of the county in which the offense is committed, giving him such description by name or otherwise as will enable the officer to identify the offender, as also giving him the offense, and it shall thereupon be the duty of the [39]*39officer so notified to arrest without delay any such person without any -other evidence- of his guilt and to- take- him before the nearest magistrate to be proae-e-de-d against in the manner provided by law.
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[36]*36Opinion op the Court by
William Rogers Clay, Commissioner.
Reversing.
Alleging that he was wrongfully and unlawfully accused of drinking intoxicating liquor, and assaulted' and arrested, while a passenger on defendant’s passenger train, plaintiff, John Byrley, brought this action against the defendant, Louisville & Nashville Railroad Company, to recover damages. The jury returned a verdict in his favor for $500. The railroad company appeals.
The facts, briefly stated, are as follows:
During the month -of April, 1911, plaintiff obtained a ticket from Middlesboro, Kentucky, to Barbourville, Kentucky, and took passage on one of defendant’s passenger trains a,t Middlesboro. When the train reached Pineville, Messrs. John C. White and Carlo Lyttle entered the train. Plaintiff turned over one of the seats, and the three sat down together. In a short time a stranger, who seems to have known plaintiff, sat down by plaintiff. Plaintiff saw a bottle of whiskey in the stranger’s pocket, and pulled it out and shook it. He then returned the bottle ito the stranger, who asked each one of those present to take a drink. Plaintiff declined^ and so did Messrs. White & Lyttle. Finally Mr. Lyttle consented to and did take a drink. The stranger then pressed the bottle to his lips, but whether he drank any or not does not appear. Just then a man occupying a seat four or five seats behind the party came running forward with his hand on his right pocket. What then took place is detailed by plaintiff in the following language:
“Yes sir, ¡and he isays, ‘you all consider yourselves under arrest;’ and I said, ‘what have we done;’ and so did Mr. Lyttle; and he says, ‘you have all been drinking ion this train,’ and Mr. Lyttle said, ‘gentlemen is that a violation of the law,’ and he says, ‘yes, sir,’ in a vigorous mean way. I could not speak it like he did. Mr. Lyttle says, ‘I am a lawyer, and read law, and have been practicing law a long time and I have never seen that in the statute.’ He says, ‘if I get the conductor will you surrender?’ I says ‘yes sir, we are law-abiding men, if you will get the conductor and he says it’s a violation.’ He started for the conductor and when he got to the door the conductor was coming in, and he remarked to the conductor, ‘I have these men all arrested for drinking;’ and the conductor says, ‘ that it is all he can do-, gentlemen, he has a perfect [37]*37right to arrest you ’ 'And I says, ‘all right, we submit;’ we went to- trying to fill a bond. I offered bim any kind of a bailable bond, and be says no, he was going to take us to Corbin and put us in the lockup, and if we failed to pay or replevy he would work us on the streets, and that meant that he would not give us a trial before 9 or 10 o’clock the next day. I -says, ‘partner if this crime is committed take ns to- Barbourville. If we have to go to jail we had rather go to Barbourville where we -are known, and we had rather stand a trial there than anywhere else, and it don’t iseem right for you to- take us away from Knox -County to W-hitley 'County; ’ and he said he was going to take u-s .right on; some -of them agreed to put up the money and ask me how much it would be and he said $10. Mr. Lyttle got out a cheek book to pay fo-r ns, and I had money for myself and Mr. White, and he would not take a check andhe remarked‘it’s $15.00.’ I -said ‘Mr. Lyttle, you give him your -check;’ he refused to take Mr. Lyttle’s check; -and when he did that I -says, ‘I will put up the money for us thr-e-e and this gentleman can take care of him-se-lf. I -didn’t know .anything -about the -stranger; and he raised it up to $15.00, iand Mr. Lyttle says, ‘I am an -old man -and by hell you are treating us- wrong;’ 'and he says, ‘it is -$5 for costs.’ I gave him. a $20.00 bill, the tu-S'Sel started at Plat Lick and by that time we were at Artemus, he went on and got the change and came back, and he loped me for mine -and I says, ‘I have not drank a drop and have not touched it, and I can prove by ever man on this train I haven’t drank any, have not drunk a drop, ¡and I don’t know why y-ou are pulling us, and Mr. White has not drank either. ’ He says ‘I will release you’ iand th-e train blowed for Barbourville, about that time. He turned me l-o-ose just as th-e train -stopped here at Barbourville.”
Plaintiff further says that when they asked the officer’s authority the -officer said he was .a railroad detective, and if he -didn’t do this he would lose his job. This evidence was -objected to, but the objection was overruled. Plaintiff also says that the officer talked to the crowd in a boisterous and .rough manner, and abused the members of the party. They did not surrender until he got the conductor. When the conductor came they surrendered at once. There were several people in the car at the time, and plaintiff was much humiliated by what took [38]*38place. The arrest took place at Plat Lick, in, Knox County. With the exception of Mr. Lyttle, none of the three in plaintiff’s party had taken a drink, and the arresting officer was repeatedly assured of this fact. The conductor, was very polite, and treated the party in a kind and courteous manner. The evidence of Messrs. White and Lyttle is substantially the same as that given !by plaintiff.
Chapter 18, Acts of 1910, provides as follows:
“1. That any person who shall, in or npon any railroad locomotive, passenger coach, interurban car, street car, or in or npon any vehicle commonly used fox the transportation of passengers, or in or npon any common carrier, or iin or about any railroad depot, station, ticket office, waiting’ room, or platform, drink any intoxicating liquor of any kind; or if any person shall be drunk or disorderly in or upon any railroad passenger Coach, interurban car, street railway, or in or upon any vehicle commonly usied for the transportation of passengers, or in or npon any common carrier, or in or about any railroad depot, station, ticket office;, waiting room, or platform, such person or persons shal be deemed to be guilty of a misdemeanor, and upon conviction thereof, shall be fined not less than ten ($10.00) dollars nor more than fifty ($50.00) dollars, ox imprisoned not less than ‘ten nor more than thirty days; or both so- fined and imprisoned in the discretion of the Court or jury: Provided, that the foregoing’ section shall not apply to any person drinking intoxicating liquors purchased by him in or upon any buffet or dining oar operated by a common carrier in this- Commonwealth.
“2. Any person violating the provisions of Section 1 of this act shall be tried in any Court of competent jurisdiction in the county where- the offense- shall have been committed.
“3. It shall he the duty of every railroad conductor of a ste-am, interurban or street railway, and station, depot, or ticket agent of said railway when he sees any person violating the provisions or any»of them of Section 1 of this Act, to- at once notify the nearest or most convenient sheriff, -constable; town marshal or policeman, of the county in which the offense is committed, giving him such description by name or otherwise as will enable the officer to identify the offender, as also giving him the offense, and it shall thereupon be the duty of the [39]*39officer so notified to arrest without delay any such person without any -other evidence- of his guilt and to- take- him before the nearest magistrate to be proae-e-de-d against in the manner provided by law. If any su-dh -officer shall willfully or negligently refuse to- make the arrest he shall be fined not lees than $10.00 nor more than $50.00 for each -offense and -it .shall b-e the- duty -o-f the conductor or agent giving to the officer the information upon which to make the arrest to prosecute- the -delinquent officer.”
It will he observed that the f-oregoing act makes it an -offense for any pers-on to- drink -any intoxicating liquor of any kind upon a passenger coach. In -case any one is guilty -of the offense it is made the duty of the conductor to at once notify the nearest and most convenient sheriff, -constable, town marshal or policeman of the county in which the offense is -committed, and- it then becomes the -duty of the officer so notified to make -the arrest.
The arrest was made by one J-ohn McCoy. No proof of -his -authority to make the .arrest was shown. On the contrary, it was .shown by the county -clerk of Knox County that McCoy w-a-s not a peace officer o-f that county, and the defendant admitted that McCoy had no authority to make the arrest.
Not only this, hut the evidence shows that plaintiff was not -guilty of the offense of drinking intoxicating liquors-. It therefore follows that hi-s arrest was- unlawful.
The plaintiff predicates his case -on the theory that the -arrest was made by McCoy and the conductor, who were agents and employees of the defendant. Defendant -insists that there was no competent proof of the fact that McCoy was its agent, and that it cannot be held liable because o-f the oonduet of the conductor in giving an erroneous interpretation of the 1-aw. It is well settled that the admission or declaration of -an agent cannot be given in evidence- against tibe principal, either to establish the fact o-f agency or to establish the extent of authority. Huffcut on Agency, Section 137; B. & O. S. W. R. R. Co. v. Clift, 142 Ky. 575, 134 S. W. 117; Peyton v. Woolen Mills Co., 122 Ky. 361. This being true, it was n-o-t competent to- prove McCoy’s -agency by his own declaration). Excluding M-s declaration, the -only -other circumstance tending to show hi-s agency is- the fact that the conductor said that he had a perfect right to make the -arrest. As this -statement may -have ap-plied with equal [40]*40foro© to .'any peace officer, whether an employee of the company or not, it follows that it is not sufficient to show that McCoy was an agent or employee of the company. There being no evidence, then, -that McCoy was an agent or 'employee of 'the defendant, or that in making the arrest he acted within the scope of his employment it was improper to authorize a finding of the jury in favor of plaintiff, based on the fact of such agency.
Plaintiff contends, however, that the case was properly submitted to the jury because 'the conductor acquiesced in the arrest made by McCoy, and therefore failed to exercise the (highest degree of care to protect plaintiff as a passenger. Whether or not this be true depends upon the particular facts and circumstances of the case. It is essential to the maintenance of the law that its processes -.should, be promptly executed and its officers allowed to proceed without interference, except in cases where such interference is plainly justified. When the arrest is by officers of the law, and is (apparently regular, and there is nothing to put the company on notice that the arrest is illegal, the company cannot be held liable for a failure to interfere with the officers and prevent the arrest. It -would be going too far to hold that the conductor of a railroad company should interfere with officers of the law 'and prevent an arrest merely because he did not know whether or not they were acting within their power and authority. We- think the correct rule is that a railroad company is not liable for a failure of tlie conductor to protect a passenger from unlawful arrest, unless the conductor knows, or the facts and circumstances known to him are such as to apprise a person of ordinary prudence, that the arrest is unlawful. Brunswick & Western Ry. Co. v. Ponder, 117 Ga. 63, 97 Am. St. Rep. 152, 60 L. R. A. 713; Hutchinson on Carriers, Section 987.
On the return of the case the plaintiff may amend his petition and assert a claim for damages for a failure on the part of the conductor to protect him from the- unlawful arrest, by making the allegations of his amended petition conform to the views herein expressed.
The instructions given by the trial court are not only ^erroneous- in submitting the question of the- company’s liability for the acts of its agent, McCoy, without proof of .agency, «but in submitting the further question of the liability, of the company for the acts of the conductor, [41]*41without qualifying the instruction .as above indicated. The instructions are also erroneous in submitting to the jury the question whether or not plaintiff was beaten >and bruised, in the absence of evidence .showing that he had been beaten and bruised.
If on another trial the evidence be .substantially the same, and there be additional evidence sufficient to submit to the jury the question of McCoy’s agency, and of his acting within the scope of his employment, and if there be further evidence tending to show that the conductor knew, or the facts and circumstances known to him were sufficient to- apprise a person of ordinary prudence that the arrest of plaintiff was unlawful, the court will instruct the jury in substance as follows:
1.McCoy had no right to arrest plaintiff, and if you believe from the evidence that on the occasion in question hie was the agent and employee of the defendant, and while acting within the scope of his- authority he arrested plaintiff, you will find for plaintiff; or
2. If you believe from the evidence that the oonduc-. tor knew, or the facts and circumstances known to him were sufficient to apprise a person of ordinary prudence, that the arrest of plaintiff, if there was an arrest, was unlawful, and that the conductor failed to exercise the highest degree of care to protect plaintiff from such arrest, if any, you will find for plaintiff.
3. Unless you believe from the evidence as set out in instruction No.. 1 or instruction No. 2, you will find for the defendant.
4. If you find’ for plaintiff under either instruction No. 1 or instruction No. 2, yon will award him such sum iu damages as you may believe from the evidence will properly compensate him for any mortification or humiliation of feeling he may have endured as the direct and proximate result of such arrest, if any; and if you find for plaintiff under instruction No. 1, and not under instruction No. 2, and further believe from the evidence that McCoy was. abusive or insulting to plaintiff, then yon may or may not, in your discretion, in addition to compensatory damages., allow plaintiff such further sum by way of punitive damages as you may believe from the evidence is right and proper, your finding in all, however, not to exceed the sum of $5,000, the amount claimed in the petition.
[42]*42Judgment reversed and cause remanded for new trial consistent with this opinion.