Baltimore, Chesapeake & Atlantic Railway Co. v. Ennalls

Boyd, C. J., delivered the opinion of the Court. The declaration filed by the appellee against the appellant, contains counts for malicious prosecution, false imprisonment, assault and battery and assault. The principal question in the case is whether the appellant is liable for an arrest of the appellee, made by Herman E. Fischer, on one of its piers in the city of Baltimore. The plaintiff, who was working at Sparrow’s Point, purchased some groceries to send to his wife at Cambridge, Md. He testified that he took them in a basket to a pier of the de ⁷⁸ fendant, where he went to the company’s office and said he had a basket to ship to his wife at Cambridge, and was told it would have to be covered.

He then went on a Cambridge steamer which was at the pier and inquired of the cook, whom he knew, whether he would deliver the groceries to his family. The cook told him he would have to get a cover for the basket and that if he went on the wharf he might find something. He went on the wharf and was a few steps from the gang-board, trying to find a cover, when Fischer stopped him, put his hands on him and said “you stole those groceries.” He replied that he had bought them, and did not steal them, and said he could so show Fischer, but the latter replied “never mind about that, you stole them, this is the B., C. & A. sugar.” The plaintiff attempted to explain, took a paper out of his pocket to show h¿ had bought the goods but Fisher declined to look at it and turned him over to the city police. He was taken to the police station where he satisfied the captain that he had purchased the groceries and was discharged.

There can be no doubt that the arrest was wholly unjustifiable, and the only question is whether the defendant is responsible for the action of Fischer. He was at the time a policeman “for the protection of the B., C. & A. and M. D. & V. Railway Companies, and for the preservation of peace and good order on the premises of the said company in this State” —having been appointed by the Governor under the provisions of what is now sec. 402 of Art. 23 of the Code, which authorizes him to commission such persons as the corporations therein named (including railroad and steamboat companies) may designate, to act as policemen for the purposes above stated. It was decided in Tolchester Co. v. Steinmeier, 72 Md. 313 , that the company was not bound by such a policeman’s acts simply because he was appointed by the Governor at its designation, nomination or request, and his salary was paid by it, and it was held that the company was not liable in that case for assault, and false imprisonment. While much that is said in that opinion is applicable to the facts of this case, there are some material distinctions between ⁷⁹ the two cases.

There the policeman’s acts complained of were not done on the premises of the company, and it was said that, “It cannot be contended that it was done in the preservation of the property of the company. The superintendent of the company ordered the policeman to arrest the plaintiff because he pushed him into the water, and not for the protection of the company or its property. It was not shown by the plaintiff what the powers of the superintendent were, but it was proven by the defendant that he had no authority to order an arrest and bind the company for the consequence of it. It was also held that the policeman was acting as a State’s officer and his act in no way enured to the benefit of the company.

In this case Fischer, when called by the plaintiff, testified that the company paid his salary, that he arrested the appellee on the premises of the appellant, “That as a police among his duties is the duty to keep order on the piers and to note people on the wharf that have no business there; that he enforced the orders” of the defendant and the rules laid down by it, “as far as he understood them.” On cross-examination he was asked, “Your only duties with the Baltimore, Chesapeake and Atlantic Railway Company are as special police officer?” to which he replied, “I will give it this way: My duty takes me from Pier 2 down to Pier g and as I go along and see any thing disorderly on the wharves I take note of it, if I see any pilfering I try to break it up;” and again, when the above question was repeated, he said, “Well, it is to make arrests and keep order.” Fischer was afterwards called in chief by the defendant and gave his account of the arrest. He said he “took hold of him and put him under arrest; that Ennalls said to him three times ‘let go of me’ and witness said T want you to go to the superintendent’s office.’ Witness has hold of him — leading him that way, when he met Mi*. Joynes, general superintendent of the B., C. and A. Railway Company, coming from his office, and beckoned to him. Mr. Joynes came and asked him where he got the goods, and he said he got them down at Steelton, and we looked at each ⁸⁰ other, and of course witness looked at him and said ‘what must I do,’ and he said ‘put him under arrest’ and witness then beckoned to Officer Tennyson and he came over and took charge of him.” He said on cross-examination that he “had to report to General Superintendent Joynes every day what was done that day; that the report would be sent in the next morning at eight o’clock; that he made these reports under the orders of the general manager; that these reports would go to. the general manager; that the general manager gave him orders; that he would receive such orders occasionally, not often.” It is manifest that both Fischer and the general superintendent were acting under the theory that the appellee had stolen the groceries from the appellant and was in the act of carrying them away.

As we have seen above Fischer said to him when he offered to show him a paper which he had in his pocket “never mind about that, you stole them, this is the B., C. & A. sugar.” There was some sugar in the basket but whether he referred to that, or used the word “sugar” as a slang expression, is not shown, but he undoubtedly arrested the appellee on the assumption that he had stolen the groceries from the appellant’s steamer, appealed to the general superintendent of the company to know what he must do and when the superintendent told him to put him under arrest, he then and there turned him over to the city police. There ought not to be any question about the appellant being responsible for such action of Fischer, aithough he was commissioned by the State, if a corporation can be held in such a suit for anything short of express precedent authority or subsequent ratification. It was not intended to hol’d in Steinmeier’s case that a corporation could not be responsible for an arrest made by a policeman commissioned by the Governor under this statute. On