
    Andrew J. Toomey, App’lt, v. The Delaware, Lackawanna & Western Railroad Co., Resp’t.
    
      (New York Superior Court, General Term,
    
    
      Filed January 3, 1893.)
    
    Malicious prosecution—Damages.
    Plaintiff, while riding on defendant’s train in the state of New Jersey, got into a dispute with the conductor over his ticket, and at Hoboken the latter caused his arrest under a statute of such state which authorizes the arrest and detention of any person who attempts to travel in a railroad car without having paid his fare. Plaintiff was brought before the recorder and discharged within a few fninutes. In an action for damages for malicious prosecution, the jury found for plaintiff, assessing his damages at six cents. Held, that a new trial upon the ground of inadequate damages would be denied.
    Appeal by the plaintiff from a judgment entered on a verdict in his favor, upon the ground of inadequate damages, and from an order denying a motion for a new trial.
    
      Robert Sewell, for app’lt; Hamilton Odell, for resp’t.
   McAdam, J.

On September 27, 1890, the plaintiff purchased an excursion ticket over defendant’s road from Barclay street, Hew York, to Orange, Hew Jersey. The ticket was in two colors, the white end running from Hew York to Orange, and the red end from Orange to Hew York. The plaintiff left the train at Brick Church, before reaching Orange, and some hours later took a train at Brick Church to return to Hew York. The assistant conductor of the incoming train asked the plaintiff for his ticket, and the plaintiff handed him a red ticket, which was punched and returned to him. Before reaching Hoboken, plaintiff was asked to surrender his ticket and offered the conductor a white ticket, which had been punched with punch not in use on that train. The conductor refused to accept the ticket, and a dispute followed, of which conflicting versions are given by the different witnesses. A statute of Hew Jersey authorizes the arrest and detention of any 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 u 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.”

When the train reached Hoboken there was another wrangle. The conductor tried to convince the plaintiff and his friends that thay were mistaken in saying that the white ticket with the 41 spade ” punch mark had been punched on his train ; but. there was an indisposition to listen. The defendant’s night despatcher called a police officer and requested him to take the plaintiff in custody. The plaintiff was taken to the police station, a distance of from 500 to 700 feet, where he and his two friends were arraigned before the captain of police, and after a delay of about five minutes were taken before the recorder of Hoboken in the same building.

Ho written or sworn complaint was made. Ho oath was administered to the conductor or to the defendants.

After hearing the conductor’s statement the parties were discharged for reasons that were stated by the recorder in his testimony.

The whole affair, from the time the train reached Hoboken, was ■over in half an hour or less.

The charge made before the recorder was that of violating the state statute before referred to, and the plaintiff was discharged upon the ground that there was no dishonest intention on his part, simply a mistake in getting off one train and going on .another.

It will be observed that the arrest was by virtue of an express ■statute, and the trial judge, therefore, properly sent the questions ■of malice and want of probable cause to the jury, and they found for the plaintiff, assessing his damages at six cents.

There is no precise rule by which damages are to be measured in a case of this character. Much is left to the good sense and discretion of the jury, and the damages when fixed by them in •actions of tort are rarely disturbed, unless so manifestly excessive or inadequate as to indicate bias or predjuce on the part of the jury.

It was evident throughout the trial that the trouble had its origin in an honest mistake, of which the plaintiff was the responsible author; that neither party intended to injure the other, and that what was done from beginning to end was through honest motives and as a consequence of an innocent but unfortunate error.

In such a case it would indeed be difficult to say that the jury were absolutely bound to give substantial damages, and that a verdict for nominal damages only proved either bias or prejudice on the part of the jury. The result shows that the peculiar circumstances of the case 'had much to do with the amount of the verdict, and that it evidences the conscientious’ conclusions of twelve good, and lawful men from the vicinage.

Wavle v. Wavle, 9 Hun, 125, was an action of slander. The verdict was for six cents. A new trial -was granted by the trial court on the ground that the damages 'were insufficient. On appeal the order granting a new trial was reversed, the court saying: “ The amount of damages to which plaintiff is entitled was not fixed, definite or certain, nor was it capable of being made so by any process of computation. The damages were w.holly in the discretion of the jury, and not controlled as to amount by any evidence given upon the trial. The appearance, character and conduct of the parties and witnesses, the probabilities surrounding the transaction, the nature of the slander, and the injury done, all constituted elements to be considered by the jury. This has been done with the result seen. Whether such verdict is the result of a compromise of differences among jurors, or whether it expresses the judgment of each juror, we cannot tell. Such results in such cases are within the experience of every judge. Ordinarily, such verdicts are deemed expressions of the jury that each party is more or less in fault, and that neither shall profit thereby. In cases like slander, libel and malicious prosecution it is well to have an end of litigation as early as possible. Such actions generally involve more of passion than of principle or actual damage. So, when such a case has been once fairly tried and considered by a jury, its decision ought, generally, to be conclusive and final. * " * In the absence of any evidence of dishonesty or misconduct on the part of the jury, we think its verdict ought to stand.”

The verdict certainly vindicates the plaintiff, as far as vindication was necessary. It did not attempt to assess the value of his character, which, in the general sense of the term, was not on trial; but it, in effect, held that, though filled with honest intentions, the plaintiff had made a mistake, which he failed to make the defendant’s conductor properly understand and believe, and the latter, in consequence, was permitted to act upon appearances, and, having done so without malice or evil intent, the jury were essentially the judges ofjihe amount of compensation which the defendant ought to pay, under the circumstances; and there being no merit in the exceptions, the judgment and order appealed from must be affirmed, with costs.

Gildersleeve, J.

In my opinion the evidence showed the damages to be substantial and not nominal. Had I been a juror, I should have been in favor of awarding something more than nominal damages. I agree, however, that the measure of damages was entirely within the discretion of the jury. The evidence does not fix, with certainty, any sum below which the jury would not be warranted in going in making an award.

To the authorities on this point, cited by my learned associate, may be added Henderson v. McReynolds, 38 St. Rep., 734.

The jury acted within its province, and its verdict should not be disturbed for the reason that the court entertains an opinion not in accord with that of the jury on the question of damages.

I cannot agree with, my learned associate when he says: “ It was evident throughout the trial that the trouble had its origin in an honest mistake of which the plaintiff was the responsible author.”

Under the evidence the jury were justified in placing the responsibility of the acts that were the inception of the trouble with either party. The evidence leads me to believe they originated with the defendant’s servants. ■

I agree in the result reached by my learned associate.

The judgment and order appealed from should be affirmed, with costs.  