Boden v. St. Louis Transit Co.

BLAND, P. J. (after stating the facts). — The evidence, we think, shows that the conductor was averse to putting the plaintiff off the car by his own effort and sought out the police officer for the purpose of having him arrested and removed from the ear. If this is so, then he was acting in his capacity as conductor and called in the officer to do what he, as conductor, had a right to do, to-wit, eject plaintiff for refusing to pay fare. He was about his employer’s business and in putting plaintiff off the car was acting within the scope of his employment. But it is contended by the defend [700] ant that in causing the arrest and in prosecuting the plaintiff on the charge of disturbing the peace, he exceeded his authority, and he, not the defendant, is responsible for the prosecution, if malicious and without probable cause. In Randolph v. Railway, 18 Mo. App. 609, it was held that the whole power of railroad corporations “pro hac vice is vested in conductors (as to their relation to passengers).” In Grayson v. St. Louis Transit Company, 100 Mo. App. 1. c. 72, 71 S. W. 730, it was held that if a passenger should be guilty of a flagrant breach of the peace to the annoyance of the other passengers, the conductor would not oniy have the right, but it would be his duty, in the discharge of the obligation of a carrier to protect passengers from annoyance, insult and injury, to call an officer and cause the arrest of the offender. In Ruth v. St. Louis Transit Company, 98 Mo. App. 1, 71 S. W. 1055, the plaintiff and conductor had a dispute about the payment of fare. The conductor caused the arrest and prosecution of the plaintiff on a charge of disturbing the peace. The suit was against the company for malicious prosecution. It was held the conductor was acting within the scope of his authority when he caused the arrest of the plaintiff and preferred the criminal charge against him, and that his acts and proceedings against the plaintiff were the acts and proceedings of the company. In Farrell v. St. Louis Transit Company, 103 Mo. App. 454, 78 S. W. 312, the doctrine of the Grayson and Ruth cases was accepted as the law. In Cameron v. Express Company, 48 Mo. App. 99, Cameron, the owner of a package, took it from the office of the company without paying the transportation charges for which the company had a lien. In order - to collect the charges the agent of the company, without probable cause, had criminal proceedings instituted against Cameron who, after his acquittal, brought suit [701] against the express company for malicious prosecution. It was held that’the agent was acting within the scope of his authority in causing criminal proceedings to he instituted against plaintiff, and that the company was liable. We think these cases warrant us in holding that the conductor was acting within the scope of his authority when he caused the arrest of plaintiff, and if it was through his instigation that the charge of disturbing the peace was preferred against the plaintiff, the defendant is liable, if the evidence shows that the prosecution was without probable cause and was malicious. It is admitted on all sides that the prosecution was without probable cause. There is no evidence to indicate that the conductor entertained ill-will or feeling of malevolence toward plaintiff, nor that he caused (if he did cause) criminal proceeding to be brought against him for a feeling of revenge. We think the evidence shows that there were no grounds, whatever for the arrest, that it was made without the semblance of cause and in gross disregard of plaintiff’s rights; if so, then the jury was warranted in finding that the prosecution was malicious. Stubbs v. Mulholland, 168 Mo. 47, 67 S. W. 650. The complaint was signed by the chief of police. There is no evidence that the conductor had any communication whatever with, the chief of police and there is no evidence that he instructed or directed the officer who. made the arrest to prefer, or have preferred, any criminal charge against plaintiff, Plaintiff, however, testified that after he reached the end of his run and was relieved, he went back to the Four Courts and found the officer and was advised by him to return the next day to testify as a witness against the plaintiff, but that he told the officer it was not Ms intention to have the plaintiff arrested or prosecuted. We do not think this evidence is sufficient to show that the .criminal charges brought against the plaintiff was preferred by the conductor or at his instigation. It only shows that [702] he caused the arrest of plaintiff. The suit, however, is not for false arrest and there is a wide difference between such a suit, and one for malicious prosecution. To maintain the latter suit, it is essential to show that the defendant participated in the prosecution and that it was on his complaint the prosecution was begun. Boeger v. Langenberg, 97 Mo. 390, 11 S. W. 223; McCaskey v. Garrett, 91 Mo. App. 354. There is no evidence to show that the defendant’s legal department, or any officer of any other department, had any notice of the criminal charge brought against plaintiff or that it participated in any way whatever in his prosecution. The appearance of the conductor, as a witness against plaintiff, the day following his arrest, according to the undisputed testimony, was without the knowledge of defendant and was brought about on the suggestion or advice of the officer who made the arrest; this being so, the appearance of the conductor as a witness in the case was not at the instigation of defendant nor was he acting for or on the advice of the defendant. We think 'the evidence is insufficient to connect the defendant with the prosecution or to show that it participated in it in anyway whatever. For this reason we think there ¿vas a failure of proof on the second count of the petition and that the demurrer to the evidence on. that count should have been sustained. The judgment on the second count is reversed. All concur.