
    FREDERICK ERVIN v. PATRICK J. BURKE AND ROBERT HARDING.
    Submitted March 21, 1912
    Decided June 18, 1912.
    A conductor of a street railway car may lawfully eject a passenger who refuses to pay his fare; the fact .that the passenger was a city policeman whom the company under a city ordinance was required to carry free of charge did not justify him in arresting the conductor for putting him off the car.
    On demurrer to plea.
    Before Gtjmmerb, Chief Justice, and Justices Garrison ■■and Swayzb.
    Eor the demurrant, Frank Bergen.
    
    Pot the defendant, Charles C. Hommann.
    
   The opinion of the court was delivered by

Garrison, J.

The declaration avers that the plaintiff while engaged in his duty as a conductor of a street railway ear was assaulted by the defendants, Burke and Harding, dragged from his car and imprisoned. A special plea filed by the defendant Plarding alleges that he was at the time of the alleged ■assault a city policeman on duty and while lawfully riding on the car in question was forcibly ejected for refusal to pay the fi-vc cents fare demanded of him by the plaintiff and that he thereupon took the plaintiff into custody in order to convey him before the city recorder. To this plea the plaintiff has demurred.

Upon the facts of the declaration that are uncontradicted and those of the plea 'that are admitted the question presented by this demurrer is whether a conductor of a street car may lawfully be arrested without a warrant for the ejectment óf a passenger, who was in fact a policeman, for refusal to pay Ms fare.

We think not.

Assuming that the defendant by force of certain city ordinances under which the street railway company had constructed its line was entitled to free transportation, and that lie has-an action against such company based upon the breach of such contract or duty, whichever it may be, that circumstance did not render his ejectment for refusal to pay a fare an unlawful act of the conductor.

Controversies of this nature are not to be settled in a wrangle between a passenger and the conductor over the payment oí a fare, nor is the latter the agent selected by the company to determine its legal rights and duties or to represent it in controversies in which they come in question. The matter is set entirely at rest by the decision of the Court of Errors and Appeals in the case of Shelton v. Erie Railroad Co., 44 Vroom 558, where speaking of the agency of the conductor in this respect it was said, “it is all comprised in his duty to collect a fare from every passenger or to eject him from ihe train.” As between the plaintiff and the defendant the plaintiff was in the right in ejecting the defendant, and the defendant, for anything set up in his plea, was in the wrong in arresting the plaintiff. We do not dwell upon the fact that the defendant was not in uniform or did not tell the conductor that he was a policeman or that lie was on duty, deeming these circumstances to be unimportant in view of the broad rule as to tlie carriage of passengers laid down by the case cited. The right of a policeman to arrest without warrant for a breach of the peace committed in his presence has, of course, no rational application to a case where the policeman himself provoked the breach and was in the wrong and the man he arrested was in the right.

Judgment on demurrer is given for the plaintiff.  