
    Joseph Samieloff, Respondent, v. New York and Queens County Railway Company, Appellant.
    First Department,
    December 20,1907.
    False imprisonment — malicious prosecution—when master not liable , for exemplary damage — erroneous charge.
    A master .is not liable in punitive damages for a false arrest and malicious prosecution instigated by his servant while acting within the line of his duty, unless the master authorized the act or affirmatively ratified it so as to make him particeps criminis of the servant’s acts.
    When there is- no evidence connecting the master with the servant’s acts, it is error to charge that the jury may give punitive damages,, for in such case . they are limited to compensatory damages.'
    
      (Per Ingraham and Houghton, JJ.): In such action the question of probable cause is one of law, and under the evidence the court should have ruled that the defendant had probable cause for the plaintiff’s arrest and prosecution.
    A conductor of a street car who leaves the vehicle and engages in a street fight is not acting in the course of his employment, and if he causes the arrest of one who also participated in the affray, the master is not liable.
    Appeal by the defendant, the New York and Queens County Railway Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York oh the 20th day of May, 1907, upon the verdict of a jury for $2,000, and also from an order entered in said clerk’s office on the 21st day of May, 1907, denying the defendant’s, motion for a new trial made upon the minutes.
    
      I. R. Oeland of counsel [ Van Vechten Veeder, attorney], for the appellant.
    
      Abraham H. Sarasohn, for the respondent.
   Clarke, J.:

This is an action to recover damages for false arrest and malicious prosecution. The plaintiff testified that he was a passenger on a car of the defendant and was making a trip to the cemetery to visit his wife’s grave; that as the car upon which 'lie was riding approached the cemetery he saw a disturbance or fight around a preceding car between the conductor and the motorman of that car and a number of passengers; that he took no part in the fracas but protested to the motorman upon his car and was told to “ shut up,” with an opprobrious epithet, or he would get his face smashed;’ that on the way back to the terminus at the Thirty-fourth street ferry he again protested, and received a similar reply; that he then told the motorman, “ You so fresh to me, when the car stops in 34th street near to the office or the ferry, then I will be a witness. 1 go in the office and tell everything what I saw what you do with these people; ” that when he got off the car at the ferry he was arrested upon the complaint of the conductor of the car around which the fight had raged, whose head was cut and bleeding; that he was locked up over night, held for the grand jury, was indicted,, tried by a petit jury and acquitted. The charge in that proceeding was that he had assaulted the conductor of the prior car with a stone. He produced no witnesses in regard to the occurrence at the cemetery.

The conductor upon whose complaint the plaintiff was arrested is dead, hut the company produced two employees and four apparently disinterested witnesses who were passengers, the substance of whdse testimony was that the plaintiff took part in the fight, threw a stone at the conductor, and was about to throw another when he was stopped by the conductor of his own car, and that he had a wrestle and struggle with that conductor and tore his coat. The jury found a verdict for the plaintiff and assessed the damages at $2,000.

In charging the jury the learned court said: Because of what plaintiff’s counsel urged on the question of exemplary or punitive damages, I charge you that unless the_ evidence satisfies you and persuades you, and not upon speculation or conjecture, that the defendant company had knowledge of any malicious act of the conductor, in the event that you should find that the conductor personally acted maliciously and with knowledge of defendant company, even then there can be no recovery by way of exemplary damages or punitive damages against the defendant company, because of the individual malice of the conductor, even though you find that the act -was within the scope of the conductor’s duty. The law only charges and makes a master responsible for the individual malicious act of a servant when the master actually authorized it, had knowledge of it, or affirmatively ratified it. All of these elements must be proven to your satisfaction by evidence, and not by speculation or conjecture, namely, that the defendant company authorized the individual malicious act, that the defendant company had knowledge of it, and * * * having knowledge of a malicious act of the conductor, that it expressly ratified it.”

Defendant excepted to the charge of the court'leaving to the jury at all the question of exemplary damages. The respondent admits that the question of exemplary damages should not have been left to the jury. He says in his brief: This exception is without merit, because as matter of fact the court did not leave to the jury any question of exemplary damages. The court simply stated an abstract principle of law favorable to the defendant, and a general exception to such an instruction is without purpose.” But from what the court said, it is quite evident that plaintiff’s counsel had very earnestly presented the question of exemplary damages and claimed to recover therefor in summing up the case to the jury, and it is quite evident' from the exception and the court’s reply to the exception, that it was leaving to the jury the question of exemplary damages. There is no evidence in the case, if the rules laid down by" the trial court are correct, to sustain the finding of malice on the part of the company such as to charge them with exemplary damages.

In Craven v. Bloomingdale (171 N. Y. 439) it was held that a master “ cannot be held liable for punitive or vindictive damages by reason of wanton, oppressive or malicious acts of the servant, unless there is proof to implicate him and make him particeps criminis of his servant’s acts; and in an action brought against a master for an illegal arrest caused by his servant, it is reversible error for the trial court, after instructing the jury as to the law of compensatory damages, to instruct them that they had also the power, if they thought proper, to award punitive or vindictive damages in addition to the amount fixed by them for compensatory damages, without further instructing them that such damages should not be awarded unless there was proof showing that the acts of the servant were wanton, oppressive or malicious and that the master was implicated with the servant therein, or had either expressly or impliedly authorized or ratified them.”

The learned court correctly charged the law, but as there was no evidence upon which the jury could have charged the alleged malicious acts of the servant upon the master, when the court’s attention was called by the exception to the fact that, he had left to the jury the question of exemplary damages he should have instructed them that compensatory damages were all that they could find. The considerable space given in the charge to the discussion of this question which was not properly before the jury had a tendency to confuse the issue and was harmful to the defendant.

The verdict is against the weight of the evidence, and, therefore, the judgment and order should be reversed and a new trial ordered, with costs to the appellant to abide the event.

Patterson, P. J., Ingraham, McLaughlin and Houghton, JJ., concurred.

Ingraham, J. (concurring):

I concur with Mr. Justice ClabkE ; I also think that plaintiff failed to show a want of probable cause for the charge made against him. The question of probable cause is a question óf law for the court and not for the jury,'and upon the facts that appeared without substantial contradiction — assuming that the defendant was responsible for the plaintiff’s arrest — it had probable cause to charge the plaintiff with being concerned in the assault upon the conductor of the first car.

I do not think that the defendant.was liable for the act of the conductor of the first car in charging the plaintiff with an assault. The alleged assault occurred in the public street after the conductor had left his car, and there was nothing to show that the conductor was, at the time of the assault, or when he made the charge, acting in the course of his employment or in the performance of any duty imposed upon him by the defendant. The mere fact that the counsel for the conductor before the magistrate was also counsel for the railroad company does not connect the railroad company with the prosecution so as to make it liable therefor.

On both these points I think the plaintiff failed' to prove facts sufficient to sustain his action and that the complaint should have been dismissed..

Houghton, J., concurred.

Judgment and order reversed, new trial ordered, costs to appellant to abide event.  