Opinion
No. 36105
Decided June 1, 1960.
Official police officers employed by railroad — Acts performed in official capacity — Acting in interest of and with authority of employer — Use of excessive force — Employer not liable, when.
APPEAL from the Court of Appeals for Hamilton County.
Plaintiff became a passenger on defendant's train at Cincinnati, having purchased a ticket to McRae, Georgia. Due to his intoxicated condition and abusive and disorderly conduct toward passengers and the train crew, the conductor requested police officers to remove him from the train at Knoxville, Tennessee. A special policeman of the city of Knoxville, employed by the defendant railroad at its passenger station at Knoxville, and a deputy sheriff of Knox County and other counties of Tennessee through which the defendant railroad runs, also employed by the defendant, removed plaintiff from the train. No charge was placed against him and he returned to Cincinnati by bus the next day.
Plaintiff instituted this action against the railroad company to recover for injuries alleged to have been received as a result of assault and battery alleged to have been administered to plaintiff by the police officers when removing him from the train. The petition contains three causes of action: (1) Assault and battery, (2) false imprisonment, and (3) breach of contract. At the close of plaintiff's case, the court sustained defendant's motion for a directed verdict on the third cause of action and to strike the allegations relative to punitive damages. Plaintiff's claimed injuries were a black eye and bloody nose which discomforted him for two weeks and worried him for several months.
The case was submitted to a jury on the first two causes of action. The jury returned a verdict for plaintiff for $5,000. Although the verdict was on the usual printed form, the jury inserted in longhand the words, "on cause of action No. 1," thus indicating that it was against the plaintiff in his claim for false imprisonment. Judgment was entered on the verdict.
The Court of Appeals, on appeal, found that the amount awarded by the jury as compensatory damages was excessive, it appearing to have been awarded under the influence of passion and prejudice, reversed the judgment of the trial court and remanded the cause for further proceedings.
The cause is in this court on the allowance of defendant's motion to certify the record. Plaintiff's cross-motion to certify was overruled.
Mr. Gurdon W. Wilson and Messrs. Hopkins Hopkins, for appellee.
Messrs. Dinsmore, Shohl, Dinsmore Todd, Mr. James O. Coates, Mr. Harris K. Weston and Mr. John G. Tomlin, for appellant.
The jury's ignoring of the false imprisonment count was in effect a verdict for defendant on that count and necessarily determined that the arresting police officers were acting in their official capacity in representing the state in making the arrest, and that the arrest was lawful, since only police officers can arrest for a misdemeanor without a warrant. The fact that the police officers were acting in the interest of their employer, the defendant railroad, or at its request or authorization did not render their acts any the less official.
A railroad company is not liable for the wrongful acts of such police officers while acting by virtue of their office, unless such wrongful acts occurred in the performance of an act which was outside the public duties of such a police officer and which was authorized or ratified by such company. New York, Chicago St. Louis Rd. Co. v. Fieback, 87 Ohio St. 254.
The judgment of the Court of Appeals is reversed, and final judgment is rendered for defendant.
Judgment reversed.
WEYGANDT, C.J., ZIMMERMAN, TAFT, MATTHIAS, BELL, HERBERT and PECK, JJ., concur.