Mt. Vernon & Marshall Hall Steamboat Co. v. McKenney

46 App. D.C. 99, 1917 U.S. App. LEXIS 2511

• Court: Court of Appeals for the D.C. Circuit
• Decided: February 5, 1917
• Docket: No. 2962
• Status: Published

Opinion

Mr. Chief Justice Shepard

delivered the opinion of the Court:

1. It was not error to refuse defendant’s request to withdraw the third count from the jury because it docs not appear from the evidence that plaintiff paid fare to the defendant as a passenger on the boat trip.

The evidence showed that defendant had contracted with one Goodwin to carry all passengers on tickets furnished by him for the excursion of June 25th to Marshall 11 all. He paid the defendant for the privilege. Plaintiff purchased some of these tickets for his family and was received as a passenger on the boat. This constituted him a passenger, and entitled him to protection as such.

2. It was not error to refuse the defendant’s prayer for an instruction to return a verdict for defendant on the whole testimony.

That plaintiff was a passenger was certain. There was conflict in the evidence in regard to his treatment. If he was maltreated by an officer of the defendant on the boat and humiliated, lie was entitled to at least compensatory damages, and it was for the jury to determine the fact and assess the damages.

Defendant further assigns for error the refusal of the court to instruid the jury under the first and third counts that there was no evidence of malice on the part of the defendant, and that a verdict should be returned for defendant.

There was no error. Plaintiff testified, and was supported by other witnesses, that lie was not disorderly on the occasion, and did not use profane language, and that he was assaulted without excuse, dragged down the stairs, imprisoned in a room in the hold, and then carried to the police station by order of the general manager and prosecuted for using profane language and for disorderly conduct, and that he had been discharged on hearing; that he had been humiliated in the presence of his neighbors, and otherwise maltreated.

The court could not assume as matter of law that plaintiff’s conduct was such that there was probable cause for bis arrest and prosecution for disorderly conduct. Whether the plaintiff had been guilty of disorderly conduct was a disputed question in the case, and was properly left to the determination of the jury.

The court instructed the jury that it was the duty of the plaintiff to conduct himself properly as a law-abiding citizen, not to engage in disorderly conduct, and not to use profane and obscene language, and that it was the duty of the company to carry him safely and. to treat him properly so long as he conducted himself properly, and not to interfere with his personal liberty. They were told to review the evidence and make up their minds as to what did happen; that until they could do that they could not apply the law to the case. He said plaintiff claims that he was conducting himself properly in the circumstances that had arisen; that the circumstances were unusual ; that his son. had obtained liquor at the bar on the boat, and had become intoxicated, and he feared he was about to go and get more liquor, or do something that he ought not to do; that he had been restraining him, in the exercise of his right and duty as a parent, by keeping him at his side, and that having left him for a moment, the young man sprang up and ran away, and that he had to act. promptly; that he felt it his duty to overtake him and restrain him and was acting honestly and as a reasonable man in .those circumstances. And that action was the occasion of an assault being made upon him by an officer of the boat. They were told, to review the evidence and ascertain how far the evidence tended to support the claim of the plaintiff. He then called attention to the fact that this testimony was contradicted in some particulars; and they were told to ascertain what the real facts were,—if the plaintiff exceeded the bounds of law and propriety in what he did before the officer came to him. In the circumstances in which he was placed, did he conduct himself in such a disorderly way that an officer of the boat, acting as a reasonable, cautious man in the circumstances, was' justified in believing that he was disorderly at the time, and that he required arrest or detention, at least for the time ? They were told that they might not be able to determine exactly what happened, but they must determine sufficiently what the facts, were to enable them to apply the rule of law, and to say whether the officer was then acting within his rights; whether he was acting as a reasonable man, properly regardful of the rights of the plaintiff in what he did then and there do. If he did no more than he was justified in doing, under this rule of law, then up to that point the plaintiff has failed to make out his ease. If he went beyond that right and duty, which he had under the law, then so far there has been a violation of the plaintiff’s right. It is claimed that in the beginning the officer only sought to detain him and used no excessive force to accomplish that end, but that then he met with resistance; that the plaintiff became profane, and it became necessary for him to use greater force. If that is true, and he used no more force than ivas necessary in the performance of his duty, acting reasonably in the circumstances, as they then appeared,—reasonably to him, as a man duly regardful of the rights of the plaintiff,—then the defendant is not liable for that part of his conduct. On the other hand, the plaintiff insists that it did not happen in that way at all; that when he, in his pursuit of his son, stumbled over the chairs and fell, and had risen, he was pounced upon by the1 officer and borne to the deck in spite of his attempt to explain the circumstances and how it happened that he was doing what he was doing, and that thereafter, without giving him a reasonable cbance to explain the situation and justify his conduct, be was hustled and hurried down the companionway to the lockup, or to the room that served as the lockup' for the time being.

Both parties were bound to act as reasonable men regardful of their duties respectively, which I have pointed out to you. On the one hand, it was the duty of the plaintiff to explain the situation so that the officer might not misinterpret Ms conduct; on the other hand, it was the duty of the officer to exercise reasonable patience and listen to his explanation, and' not take it for granted that he was violating the law. Which was to blame when judged by those rules and those tests ? There is a conflict in the evidence there as to what went on, hut there is where the line runs. Those are the duties respectively, and you must determine the fact so far as you can, from the testimony, in order to determine whether or not there was a breach of those duties on the one hand or on the other. . .

There is no doubt that the officer of the company had a right, and- it was his duty, acting reasonably and cautiously in the performance of it, to preserve order upon the boat; and it was the duty of the plaintiff to conduct himself peaceably and orderly. But, of course, you are to have regard for the circumstances, have regard for the circumstances in which the plaintiff was put, and also to have due regard for the circumstances as they then reasonably appeared to the officer himself. There may have been, to some extent, a misunderstanding; but who was to blame for it ? Which party, if either, failed to exercise the forbearance, the reason and good judgment, the honesty of purpose that was required in the circumstances? And where was the real fault ? There is no doubt that this detention was by the agents of the company, and if it was in violation of the law, as I have stated to you, then the company is responsible for it. It seems that the plaintiff was taken from the boat, and taken to the office of the defendant company, and there is a conflict as to what occurred there. The general manager was there, the one having authority over every employee upon the boat, the one having general control of the business of the company, as the evidence appears to show, and the evidence on the part of the plaintiff tends to show that he took the word of the boat’s officers, and insisted on the plaintiff being taken to the police station and that the matter should be proceeded with in the court. You have heard the evidence on the part of the defendant so far as it tends to contradict or qualify that claim of the plaintiff. If what followed was done by the authority and direction of the superintendent of the defendant company, why, of course, the defendant company was responsible for that. He was in charge, and it was his duty to deal with such matters.

The Court then instructed the jury under the first and third counts with regard to the malicious prosecution. That under these counts it was necessary for the plaintiff to show that the prosecution terminated in his favor, and that has been shown. If it had not ended in his favor, he could not have maintained any action for malicious prosecution; but, on the other hand, the determination of the question of fact by the police court is not to be treated by you as any evidence that it was properly determined. You have heard the whole case, and it is for you to try it anew as if it had not been tried in the police court, and the plaintiff is required to show that he is not guilty of the offense charged in the complaint, and that there was no reasonable or probable ground for a prosecution against him, and, furthermore, that the prosecution was instigated and prompted by malice. You are to determine whether the plaintiff was guilty or not guilty of the offense charged of disorderly conduct or of the use of profane or indecent language. If he was guilty of it, why, of course, he has no case against the defendant, but if he was not guilty of it, then the question arises, was the defendant company, through its officers, justified in its action ? That is, did it have reasonable and probable cause to believe that the plaintiff was guilty?

The company, through its agents, was bound to exercise the care and prudence of reasonable men, exercising such a duty as they were attempting to exercise, and you ought to consider the circumstances exactly as they were and as they reasonably appeared to the officer at the time, and then you ought to say whether, on those facts, there was a want of probable cause. It is necessary for the plaintiff to show that there was a want of probable cause. If he has shown that he was innocent, and that there was a want of probable cause for his arrest and prosecution by the defendant, then the next question arises, whether he was prosecuted by malice. The law is that malice may be inferred from the want of probable cause if the circumstances justify it. If there was such a want of probable cause that the jury infer therefrom the reasonable existence of malice, then that point is made out. Now, what we mean by malice in this connection, is that the defendant acted not from the public and proper motives that should actuate him in making an arrest and procuring a prosecution, but from hatred, personal ill will, spite, personal anger, a wish to injure the plaintiff, or a reckless disregard of the plaintiff's rights. Either one of those things would till the definition of malice as the law uses the term in connection with these eases.

If you find that the plaintiff was in fact innocent, and find there was no reasonable or probable grounds for the arrest and prosecution, then you are to consider all the circumstances that may tend to throw light on the question, whether the officers of the defendant company were prompted by malice against the plaintiff, by personal passion of any of the kinds I have spoken of, or reckless indifference and disregard of the rights'of the plaintiff. If you find all these points in favor of the plaintiff then he is entitled to a verdict upon the first and third counts, as well as upon the second.

The court then instructed the jury that if they should find for the plaintiff he was entitled to recover fair compensation for the injuries sustained, and that they were to consider as elements of that damage any personal and physical injury that is shown to have been inflicted upon him. You are to consider all the circumstances in which the affair occurred,—the humiliation and disgrace, if you find that that existed, attendant upon the arrest and detention.

The court then further said: In cases of this character the jury have a right to go further, provided they find that the case is an outrageous one and such that an example ought to be made of the defendant in the public interest; if the conduct of the defendant, through its officers and agents in this case, ratified by the general manager of the company, was so high-handed and the offense such a reckless disregard of the rights of the plaintiff that it ought to be made an example of in the public interest, then you have a right to add to the compensatory damages a sum by way of smart money or exemplary damages; but you are not to add that unless you feel sure that the case comes within the description I have just given you, and you should be reasonable and temperate in the assessment of any damage in this case, or any other, and should be sure you are not yourselves actuated by any passion, or any hatred or prejudice, but only by your belief that the public good requires that an example should be made of the defendant.

The court also read to the jury the defendant’s second instruction, which was to the effect that if the jury believe from the evidence that the plaintiff, while a passenger on the steamboat Charles Macalester, used profane language and engaged in disorderly conduct, then they are instructed that the defendant had probable cause for charging the plaintiff in the police court of the District of Columbia, and their verdict should be for the defendant.

Prayer number 7 of defendant was also read, to the effect that in order to recover the plaintiff must establish by a preponderance of the evidence that he was not guilty of disorderly conduct or of using profane language upon the occasion complained of, and if you believe from the evidence that the conduct or language of the plaintiff was such as to create in the mind of a reasonable person the honest, reasonable, and probable belief that plaintiff was disorderly, or did use profane language, then your verdict should be for the defendant.

Also read prayer number 8 of defendant, to the effect that what is meant by probable cause is such a state of facts and circumstances as would lead a man of ordinary caution and prudence, acting- conscientiously, impartially, reasonably, and without prejudice upon the facts within his knowledge, to believe that the person accused is guilty.

And also prayer number 9 of the defendant, to the effect that the question of the presence or absence of probable cause does not depend upon the guilt or innocence of the accused, or upon the fact whether or not an offense has been committed. That a person making a criminal accusation may act upon appearances, and if the apparent facts are such that a discreet and prudent person would be led to the belief that an offense had been committed by the person charged, he will be justified, although it turns out that he was mistaken and the party accused was innocent.

Defendant’s tenth instruction was also read to the jury, to the effect that if you believe that the plaintiff was guilty of disorderly conduct or of using profane language that your verdict should be for the defendant, and it is not essential that you find that plaintiff was guilty of both offenses to constitute reasonable and probable cause for action on the part of defendant or its servant in causing the arrest.

Also prayer number 12 of defendant was read to the’ jury, to the effect, the jury are instructed that persons taking passage upon a steamship submit their persons to reasonable regulation and control of the officers of the steamship.

We see no objection that can be taken to the instruction of the court on this point. Probable cause for a criminal prosecution lies in the existence of such facts and circumstances as would create in the mind of an ordinarily cautious man, at the time, the belief that the accused was guilty of the crime charged. Mark v. Rich, 43 App. D. C. 182, 189.

The jury were correctly told that if the plaintiff at the time of his arrest was acting in a disorderly manner, and that if his conduct at the time was sufficient to cause an ordinarily prudent man to believe that he was disorderly, that such fact would furnish probable cause for his arrest and prosecution. Whether or not the facts existed which furnish probable cause was for the jury to determine. The Court determined the law of the case applicable to those facts. Spitzer v. Friedlander, 14 App. D. C. 556, 562; Brown v. Selfridge, 34 App. D. C. 242, 247; Mark v. Rich, supra.

4. Another error is assigned on the exclusion of the testimony of the witness Goodwin for the defendant.

He was asked if he communicated the fact of this occurrence to anybody before he left the boat, or about the time he left the boat, and he said he did. When asked to whom he communicated it he was unable to say, did not remember; he simply remembered that on going off the boat he spoke to some officer of the boat and said that there had been a man disorderly up there. The Court excluded the testimony.

There was no error in this exclusion. As the evidence was given, it amounted to mere hearsay. If the statement had been made to the officer who made the complaint, and particularly to the general manager, who authorized the prosecution, the testimony would have been proper for the consideration of the jury in determining the question whether or not there was probable cause for believing plaintiff bad been guilty of disorderly conduct; but it does not appear to whom the statement was made, or that it had any possible consideration or effect in determining whether there was probable ground for prosecution.

We have considered all questions raised on the argument, and have discussed such as it seemed to be necessary.

We find no error in the record, and the judgment is affirmed with costs. Affirmed.