
    Isaac Krulevitz vs. Eastern Railroad Company.
    Essex.
    Nov. 4, 1885.
    Jan. 11, 1886.
    Field & Devens, JJ., absent. Gardner, J., did not sit.
    If a passenger on a railroad is prosecuted, on a complaint by the conductor, for fraudulently evading his fare, and is acquitted, in an action by him against the railroad corporation for malicious prosecution, the honest and reasonable belief of the conductor in making the complaint is a necessary element in determining whether he acted without probable cause and maliciously.
    Tort, in two counts. The first count was for an assault and false imprisonment, and the" second count was for malicious prosecution. Trial in the Superior Court, before Crardner, J., who reported the case for the determination of this court, in substance as follows:
    The plaintiff offered to prove the following facts. On July 5, 1884, the plaintiff, who, in the pursuit of his business, had frequent occasion to go from Lawrence to Salem, bought at Lawrence a ticket of the defendant corporation, which read, “ Lawrence to Salem and return,” for which he paid one dollar, the price of a ticket from Lawrence to Salem or from Salem to Lawrence being sixty-five cents. On this ticket he rode over the defendant's road from Lawrence to Salem on that day, but, being detained there by his business until after the train for Lawrence had gone, he returned to Lawrence by another route. On July 7, he again entered the defendant’s train at Lawrence, intending to go, as before, to Salem. Before starting he had paid away all the money which he then had, under the honest belief that the ticket which he had was good to carry him to Salem, where he expected to collect a large sum of money ; and he did not intend to evade the payment of the fare. When the conductor, to whom he was personally known, asked him for his ticket, he offered him the ticket above described; but the conductor refused to accept it for his fare, stating that it was not good in that direction, and demanded of the plaintiff payment of his fare. The plaintiff stated his belief that the ticket was good, and the facts above related showing why he had no money. He also said that it was necessary for him to get to Salem that morning; that he expected there to receive money; that he would pay him the fare on his return at night; and that he might keep the ticket as security. Other passengers stated, in the hearing of the conductor, that he had carried them on return tickets like this one, and he made no denial. But the conductor refused to accept the plaintiff’s offer, and called him opprobrious names, which he repeated at times until the train reached Salem. In the mean time, the conductor had telegraphed to Salem to the police there, and, on the arrival of the train at Salem, several police officers at once entered the train, before the plaintiff had left it, arrested the plaintiff, and removed him to the police station in Salem, the conductor having pointed him out as the person to be arrested for having evaded his fare. The conductor followed to the police station, where be signed and swore to a complaint charging the plaintiff with fraudulently evading his fare by then and there leaving a certain car of said company in which he, the said Krulevitz, was then and there a passenger, without having paid said fare. On this complaint the plaintiff was confined in the police station for the space of twelve hours, when he procured bail. About two weeks afterwards, the complaint was tried, the conductor appearing as a witness against the plaintiff, who was acquitted.
    The conductor had been in the habit of taking round trip tickets in cases like this. He was acting under the orders and rules of the defendant in making the arrest, complaint, and prosecution. It was not contended that the conductor used unnecessary force in making said arrest or imprisonment, nor that the plaintiff was in fault, except by not paying his fare when demanded. No other contract for fare was made, or relied on by the plaintiff, except in offering said ticket.
    Upon this offer of proof, the defendant asked the judge to rule that the action could not be maintained. The judge so ruled, and ordered a verdict for the defendant. If this ruling and order were right, judgment was to be entered on the verdict ; otherwise, the verdict is to be set aside, and a new trial granted.
    
      E. J. Sherman £ C. U. Bell, for the plaintiff.
    
      E. L. Evans, for the defendant,
    cited Cheney v. Boston & Maine Railroad, 11 Met. 121; Boston & Lowell Railroad v. Proctor, 1 Allen, 267 ; Coleman v. New York & New Haven Railroad, 
      106 Mass. 160; Shedd v. Troy & Boston Railroad, 40 Vt. 88; Johnson v. Concord Railroad, 46 N. H. 213; Keeley v. Boston & Maine Railroad, 67 Maine, 163 ; State v. Campbell, 3 Vroom, 309.
   C. Allen, J.

The defendant’s counsel contends that the

ticket did not entitle the plaintiff to be carried the second time from Lawrence to Salem ; and the cases cited by him well support this proposition. The plaintiff, indeed, no longer controverts it; but now insists that he may nevertheless prevail by proving that the conductor acted without probable cause and maliciously, and that there was sufficient evidence for the jury on these points; and in this we agree with him. Ripley v. McBarron, 125 Mass. 272. Want of probable cause and malice on the part of the conductor, if established, may be imputed to the corporation. Reed v. Home Savings Bank, 130 Mass. 443. But the report does not show whether the conductor believed or disbelieved the plaintiff’s story, or whether he was acting in good faith in causing the arrest and making the complaint. His honest and reasonable belief is a necessary element in determining the questions of probable cause and malice, and, since this is not found in his favor, there must be a new trial. Good v. French, 115 Mass. 201, 203. Bacon v. Towne, 4 Cush. 217, 239.

New trial granted.  