
    (4 Misc. Rep. 392.)
    TOOMEY v. DELAWARE, L. & W. R. CO.
    (Superior Court of New York City, General Term.
    July 3, 1893.)
    1. Malicious Prosecution—Instructions—Malice.
    In an action against a railroad, company for causing plaintiff’s arrest on the ground that he was attempting to ride on defendant’s train with intent to avoid payment of his fare, defendant requested a charge that “if there was probable cause for making the complaint against the plaintiff, yet if," in making it, the conductor did not act with a malicious purpose, or with actual malice, towards the plaintiff, the defendant is entitled to a verdict.” Held, that it was a substantial compliance with the request to give the charge with the word “actual” stricken out, the jury not having been instructed as to the distinction between legal and actual malice.
    2 Same—Damages.
    In an action for malicious prosecution for causing the arrest of plaintiff, an elderly man, on the ground that he was attempting to ride on defendant’s railroad train with the intent of not paying his fare, and putting him on trial at a place where he could not procure bail, the court properly charged that if the jury found for plaintiff they must award substantial damages.
    3. Same—Arrest to Compel Payment oe Debt.
    Malice is established where it is shown that the defendant in an action for malicious prosecution made the criminal charge complained of to enforce payment of a debt.
    Appeal from jury term.
    Action by Michael Toomey against the Delaware, Lackawanna & Western Railroad Company for causing plaintiff’s arrest on the ground that he was attempting to ride on defendant’s road without paying his fare, and with intent to avoid payment thereof. From a judgment entered on a verdict in favor of plaintiff, and from an order denying a motion for a new trial, defendant appeals.
    Affirmed.
    Argued before FREEDMAH and McADAM, JJ.
    Hamilton Odell, for appellant.
    Wolff & Hodge, for respondent.
   McADAM, J.

On September 27, 1890, the plaintiff, in company with his son, Andrew J. Toomey, and a friend, Mr. Peppard, made a journey on the defendant’s road to Orange. Upon their return trip a dispute arose as to whether the tickets offered to the conductor entitled them to travel on his car. The dispute continued until the train reached Hoboken, and there the trio were arrested under color of a Hew Jersey statute which authorizes the apprehension of ány person who attempts to travel in a carriage of any railroad company without having paid his fare, and with intent to avoid payment thereof. The offender forfeits to the company a sum not exceeding five dollars, which "fine” may be imposed "by any justice of the peace before whom such person shall be brought on complaint made on oath or affirmation, and after a summary hearing of the facts and circumstances.” The magistrate discharged the plaintiff and his companions, whereupon they brought separate suits against the defendant to recover damages for causing their arrest, and setting on foot the criminal prosecution aforesaid. The trials resulted in verdicts for the plaintiffs, but for different amounts, Andrew J. Toomey, the son, recovered six cents, which recovery the court at general term sustained (21 N. Y. Supp. 448) upon the ground that the question as to the amount of damages, substantial or nominal, was without objection left to the good judgment of the jury, and there was no legal reason which required the court to disturb their finding. The present appeal is from a judgment of $500 recovered by the father, an elderly gentleman, who claims to have keenly felt the indignity of his arrest, and suffered considerably from it. The fact that the son recovered six cents does not prove that the father should have been similarly dealt with, nor does the fact that the jury awarded the latter $500 prove that the verdict in the son’s favor was too small. The jury in each case separately fixed the amount. The damages to be awarded in cases of this character must, in the nature of things, be left largely to the experience and sound judgment of a jury, and they naturally vary with the age and condition in life of the injured parties, and the impression created on the minds of the jury. In Wood’s Mayne on Damages, (1st Amer. Ed., § 47,) the author, speaking of the measure of such damages, says:

“Where the person or character is injured it is difficult, if not quite impossible, to fix any limit, and the verdict is generally a resultant of the opposing forces of the counsel on either side, tempered by such moderating remarks as the judge may think the occasion requires.”

The verdict does not bear the evidence of bias or prejudice, and,, though substantial, is still reasonably moderate in amount, and one we are indisposed either to criticise unfavorably or disturb. The court ought not to interfere with the assessment of damages-by a jury, further than to see that they have not abused the trust reposed in them, or violated some settled rule of law.

The exceptions taken relate wholly to the charge, and -the requests- and refusal to charge:

1. The defendant requested the court to charge that "if there was probable cause for making the complaint against the plaintiff, yet if, in making it, the conductor did not act with a malicious purpose, or with actual malice, towards the plaintiff, the defendant is; entitled to a verdict.” The court charged the request, striking out the word "actual.” The request, after all was substantially charged, and the jury were intelligently told that, if there was no malicious, purpose or malice on the part of the conductor towards the plaintiff, he could not recover. The word omitted did not detract from the force of the request made, for the jury had not been instructed in the technical distinction between legal and actual malice, and: as applied to this case, in the form submitted, there was none. Malice in fact is found by the jury; malice in law, by the-court; and that submitted to them was necessarily of the former character, for the court made no finding, and gave no binding instructions, as to malice in law.

2. The trial judge charged, at plaintiff’s request, “that the uncontroverted evidence is that the damage was substantial, and not nominal.” The defendant urges with earnestness its exception to this part of the charge, in view of the finding of nominal damages in the action by the plaintiff’s son, and the affirmance ■of that judgment by the general term. Ho such request was made in the action by the son, and the entire question of damages, nominal or substantial, was, without objection, left to the jury for their determination; and under such circumstances the general term was indisposed to interfere with a result which might have been guarded against, and perhaps obviated, by a specific request to charge that substantial damages must be awarded if they found for the plaintiff. The question, however, was squarely presented on the present trial, and the judge presiding met it with the direction that if they found for the plaintiff they must award substantial damages. We. find no error in the instruction. Field, Dam. § 687; 3 Suth. Dam. 703. Taking an elderly man into custody, and marching him through a crowded thoroughfare, in charge of an officer, depriving him of his liberty, away from friends and facilities for bail, putting him on trial, causing fear and suspense, are acts sufficient to call for substantial rather than the mere nominal damages sometimes awarded for a mere technical trespass or wrongdoing.

.3. The trial judge charged, at plaintiff’s request, “that Burritt, the conductor, was chargeable with Slater’s knowledge that the plaintiff had delivered unpunched tickets to him.” Slator was the assistant conductor, aiding Burritt in collecting tickets. A delivery to Slator was therefore tantamount to a delivery to.Burritt, and the act was so regarded and intended. Under the circumstances the charge was right. It was the duty of the. one' to keep the other informed as to the collections made, that demands might not be made twice of the same passenger, and the implication of knowledge comes from the duty imposed of communicating it.

4. The defendant’s counsel requested the court to charge that “the plaintiff, when applied to by the conductor, was bound to produce a proper and valid ticket as evidence of his right to ride upon the train, or pay his fare.” Such a regulation is certainly reasonable, and for noncompliance therewith an offending passenger may be excluded from the car. Hibbard v. Railroad Co., 15 N. Y. 455; Townsend v. Railroad Co., 56 N. Y, at page 300; Homiston v. Railroad Co., (Super. N. Y.) 22 N. Y. Supp. 738. Ho such right was exercised here. On the contrary, the plaintiff was allowed to complete his journey, and was then arrested for stealing a ride. The trial judge replied to the request in these words;

“If he could do so, he was. If he had had a ticket, and lost it, it was a subject of explanation. It was his duty either to produce a proper ticket or pay his fare, or make some reasonable explanation why he didn’t do it”

While the rule is that, as between conductor and passenger, the ticket is the only evidence of the passenger’s right to be carried, (2 Wood, By. Law, § 350; Thomp. Carr. p. 337, § 3,) and explanations are not always to be taken, yet exceptions thereto will be found in several well-considered cases, in which it was held that the passenger has the right to make any explanations that will assist in determining his rights, (Pennsylvania Co. v. Bray, 125 Ind. 229, 25 N. E. Rep. 439; Railroad Co. v. Conley, [Ind. App.] 32 N. E. Rep. 96; Railroad Co. v. Fix, 88 Ind. 381.) In Eailroad Co. v. Bray, supra, the passenger had purchased a round-trip ticket, and the conductor had retained the return coupon on the going trip by mistake, and the passenger did not discover the mistake until he presented to the conductor, on his return trip, the going coupon, that he had retained, instead of the return coupon. .The court held that under such circumstances the passenger had a right to be carried on his return trip, on presenting the going coupon, with proper explanation. See, also, Railroad Co. v. Holdridge, 118 Ind. 281, 20 N. E. Rep. 837. The charge, in view of the facts and the cases cited, was a proper answer to the request, for it left the jury free to determine whether the plaintiff really had the proper ticket, and how he had disposed of it, and whether, in view of the explanations given, the conductor acted with or without' probable cause—in good faith, or from malicious motives—in causing the plaintiff’s arrest after the journey was completed.

5. The plaintiff’s counsel requested the court to charge “that if Burritt [the conductor] made the charge of a criminal com-, plaint for the sole purpose of collecting a debt, and to prove him-, self right, they must find malice.” This was correct. Lynch v. Railroad Co., 90 N. Y. 77, 85. The arrest was justifiable only on the theory that the conductor, in putting the plaintiff into custody, was bringing him to justice pursuant to the 27ew Jersey statute before referred to, and for the purpose of being dealt with according to its provisions.

The five exceptions discussed are all that were urged on the argument against the judgment, and for the reasons stated we hold them to be without merit. The defendant was clearly liable to an action for the acts of the conductor, (Rounds v. Railroad Co., 64 N. Y. 129, 134; Mott v. Ice Co., 73 N. Y. 543, 547; Lynch v. Railroad Co., 90 N. Y. 77, 86,) and, the damages not being excessive, the judgment and order appealed from must be affirmed, with costs.

FEEEDMA27, J.

I concur, but desire to add that, although the jury were directed to give substantial damages in case they found for the plaintiff, they were, by another part of the charge, expressly confined to giving compensatory damages only.  