Mr.

[8] The eighteenth, nineteenth, and twen-formaldehyde in that fluid was less than 42 tieth exceptions were taken to the refusal of per cent., and therefore the jury should disthe court to allow Mr. Tongue, the agent of regard all evidence as to the effect upon the defendant who wrote the policy, to say wheth- organs of the body of a fluid containing a er he would have written it if he had then larger percentage. There was no evidence known of the condition of Mr. Wood's or- of the percentage in the fluid used. gans as had been testified to in this case. Becker, the undertaker, did not state the Counsel for appellants have cited no authori- percentage, but said its main property was ty for these exceptions, and have stated no formaldehyde. Dr. Cone said: "I do not satisfactory reason why they should be sus- know what per cent. the embalmer used." tained. If he had been allowed to answer, Mr. Becker was then recalled, and said the his reply, whatever it might be, could not fluid was a proprietary article, and the perhave aided the jury in reaching their ver- centage of ingredients was a secret. "Just dict. If he had replied in the affirmative, what the percentage of formaldehyde is we it would have been impossible to believe him, do not know." That prayer therefore could and, if in the negative, it would have added not have been properly granted. nothing to their assurance that he would not have written the policy with such knowledge. In no aspect of the case could his reply have influenced the verdict.

What we have said in reference to the sixth, seventh, eighth, and ninth exceptions disposes of the point made that no counsel fee should have been allowed, as that point rests upon the contention that the renewal receipt, and not the policy, was, the cause of action, and that, under the practice act, the former should have been filed with the declaration.

The defendant's remaining rejected prayers, the eleventh, thirteenth, sixteenth, and seventeenth, and his modified eighteenth prayer, will be set out by the reporter.

[9] The eleventh prayer was not objectionable in form or principle, but the sixth and seventh granted prayers embraced everything contained in the eleventh. The sixth instructed the jury that the burden was on the plaintiff to establish by a preponderance of testimony that the accident, independently of all other causes, produced the death, which is but another mode of instructing that there was no presumption to that effect, apart from affirmative proof, and the seventh fully covered the other branch of the eleventh prayer, as to the effect of disease as a contributory cause of death.

[10] The vice of the thirteenth prayer is that it allowed the jury to give their verdict for defendant if they found the warranties mentioned therein to be untrue, without also finding that they were material.

[11] It is only in exceptional cases that the question of materiality can be withdrawn from the jury, as where the evidence is uncontradicted, or such that but one inference can be drawn from it. Md. Casualty Co. v. Gehrmann, 96 Md. 651, 54 Atl. 678; Bankers' Life Ins. Co. v. Miller, 100 Md. 1, 59 Atl. 162. In all other cases that question is for the jury as properly provided in defendant's fourteenth granted prayer.

[12] The eighteenth prayer, which, as granted, instructed the jury that there was no evidence legally sufficient to show that the embalming fluid which was injected into the body of Mr. Wood affected any organs or parts of the body in such a way as to cause contraction or shrinking, was modified before it was granted by striking out the concluding words, viz., "or to interfere in the slightest degree with an accurate post mortem examination of the physical condition of said organs or other physical parts of the body."

The only suggestion in the record of any effect produced by the embalming fluid was that it might have contracted the specimens of the arteries taken out at the autopsy. Upon this point the instruction was full and positive, and we can discover no possible injury to defendant by reason of the above modification.

Finding no error in any of the rulings of the court, the judgment will be affirmed. Judgment affirmed, the appellant to pay the costs above and below.

(116 Md. 441)

NEW YORK, P. & N. R. CO. v. WALDRON. (Court of Appeals of Maryland. Nov. 25, 1911.)

1. FALSE IMPRISONMENT (§ 39*)—EVIDENCE— QUESTION FOR JURY.

In an action by a passenger against a carrier for causing his arrest and imprisonment as a witness in a proceeding against another passenger for disorderly conduct, evidence held to require the submission of the question of false arrest and imprisonment to the jury.

[Ed. Note. For other cases, see False Imprisonment, Cent. Dig. §§ 116-118; Dec. Dig. $ 39.*]

2. FALSE IMPRISONMENT (§ 2*)-DEFINITION. False imprisonment is a wrong akin to that of assault and battery, and consists of imposing, by force or threats, unlawful restraint on a person's freedom of locomotion. It is the unlawful detention of a person against his

will.

The sixteenth, seventeenth, and eighteenth prayers all relate to the embalming fluid [Ed. Note. For other cases, see False Imused upon the body of Mr. Wood. The six-prisonment, Cent. Dig. § 1; Dec. Dig. § 2.* teenth asked an instruction that the uncon- For other definitions, see Words and Phrastradicted evidence showed the percentage of es, vol. 3, pp. 2657–2661; vol. 8, p. 7660.]

For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep'r Indexes

3. FALSE IMPRISONMENT (§ 7*)-DETENTION | commenced at the time he was taken into cusOF PERSON AS WITNESS.

Plaintiff, while a passenger on defendant's railroad train, witnessed disorderly conduct of another person, who was a stranger to him, in the car in which plaintiff was seated. Plaintiff was no party to the disorder, nor in any wise responsible therefor; but the conductor, after wiring for officers, directed them to hold plaintiff as a witness, and plaintiff was there upon taken from the train by the officers and required by the sheriff to give cash bail to secure his appearance as a witness at the trial, but on the succeeding day his security was returned to him, and he was permitted to go. Held that, since by Code Pub. Loc. Laws, art. 35, § 13, no one but a magistrate has authority to commit a witness to secure his attendance to testify as a witness, the sheriff's act at the instance of the conductor constituted false imprisonment.

[Ed. Note. For other cases, see False Imprisonment, Cent. Dig. §§ 5-61, 79; Dec. Dig. $ 7.*]

4. FALSE IMPRISONMENT (§ 15*)-ARREST OF

PASSENGER-AUTHORITY OF CONDUctor.

Where a carrier's conductor, acting in the course of his employment, ordered and procured the arrest of plaintiff, a passenger, as a witness against another passenger arrested for disorderly conduct, the carrier was liable for plaintiff's false imprisonment, though the conductor was not authorized to order plaintiff's arrest.

[Ed. Note. For other cases, see False Imprisonment, Cent. Dig. §§ 5-67; Dec. Dig. 8 15;* Master and Servant, Cent. Dig. § 1222.] 5. TRIAL (8 252*)-INSTRUCTIONS-APPLICABILITY TO EVIDENCE-VARIANCE.

Where a carrier's conductor wired ahead for an "officer" to meet a train to arrest a disorderly passenger, and plaintiff's first prayer assumed that there was no evidence that the conductor wired to have "officers" meet the train, the variance was unimportant and insufficient to render the prayer bad.

[Ed. Note. For other cases, see Trial, Cent. Dig. 88 505, 596-612; Dec. Dig. § 252.*] 6. FALSE IMPRISONMENT (§ 40*)-INJURY TO

PASSENGER "PERSONAL INJURY."

Where plaintiff sued for false imprisonment, in that he was arrested as a witness and taken by an officer from defendant's train, a prayer that it was the duty of the carrier to use all reasonable care to protect plaintiff from "personal injury" and insult was not objectionable as abstract, since the false arrest and imprisonment constituted a "personal injury"; such term being defined to include libel, slander, criminal conversation, seduction, malicious prosecution, assault and battery, false imprisonment, and other actionable injuries to the person (citing Words and Phrases, vol. 6, p. 5341).

tody.

[Ed. Note. For other cases, see False Imprisonment, Cent. Dig. § 100; Dec. Dig. § 27.*] 8. APPEAL AND ERROR (§ 223*) — QUESTION

NOT RAISED AT TRIAL-JUDGMENT.

An objection that a judgment was erroneously entered, in that interest was allowed from the date of the verdict, could not be reviewed when made for the first time on appeal.

[Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. $$ 1338-1342, 1344, 13461350; Dec. Dig. § 223.*]

Appeal from Circuit Court, Worcester County; Robley D. Jones and E. Stanley Toadvin, Judges.

Action by William Waldron against the New York, Philadelphia & Norfolk Railroad Company. Judgment for plaintiff, and defendant appeals. Affirmed.

Argued before BOYD, C. J., and BRISCOE, PEARCE, BURKE, THOMAS, PATTISON, URNER, and STOCKBRIDGE, JJ.

Joshua W. Miles and Henry L. D. Stanford, for appellant. Ellegood, Freeny & Wailes and Hope H. Barroll, for appellee.

PATTISON, J. This is an action for false arrest and imprisonment brought by the appellee, William Waldron, against the appellant, the New York, Philadelphia & Norfolk Railroad Company. The case was tried before a jury upon issues joined on plea of not guilty, and the result was a verdict and judgment for the plaintiff, from which the defendant has appealed.

There are twelve bills of exceptions in the record; one relates to the ruling of the lower court on the prayers for instructions to the jury, and the other eleven to the rulings of the court upon questions of evidence.

The plaintiff offered three prayers, the defendant four. To the granting of the plaintiff's prayers, the defendant objected, “both generally and because there was no legally sufficient evidence to sustain them." All of the plaintiff's prayers were granted, while two of the defendant's prayers were granted and two rejected. To the ruling of the court in granting the plaintiff's prayers, and in the rejection of the defendant's third and fourth prayers the defendant excepted. The defendant's fourth prayer asks the court to instruct the jury that, under the pleading and evidence in the case, there was no evi[Ed. Note. For other cases, see False Im- dence legally sufficient to entitle the plainprisonment, Cent. Dig. § 119; Dec. Dig. § 40.*] tiff to recover; and by the other rejected 7. FALSE IMPRISONMENT (§ 27*)-EVIDENCE. prayer of the defendant (the third prayer) Where plaintiff, a passenger, at the instance of defendant's conductor, was taken the court was asked to instruct the jury into custody by a peace officer at 12 o'clock at "that there is no evidence legally sufficient night, in a strange town, that he might be to prove that any of the agents or officers of present to testify as a witness in proceedings the defendant corporation, the New York, against another passenger for disorderly conduct, evidence that plaintiff was taken to jail Philadelphia & Norfolk Railroad Company, and security demanded of him by the officers was ever authorized by said company to do under the direction of defendant's conductor, or commit any of the acts complained of by and that plaintiff deposited $50 with the offi- the plaintiff, or that the said defendant comcers as security for his appearance as a witness, was admissible in an action for false im- pany ever adopted or ratified said acts of prisonment, as plaintiff's unlawful detention said officers or agents, and the verdict of

the jury must therefore be for the defend- as a witness." The officers said to him, ant."

"Come with me," and he went. They went from the station to the jail. When they reached the jail, they entered and went so far as the corridor. Freeze was placed in a cell. The sheriff then asked him if he could give any bail, as there was no charge against him. The plaintiff replied that he knew no one in Princess Anne; that it was the first time he was ever in the town, but said he had some money, $75, "if that would do any good." He was told by the sheriff to put up $50 for his appearance when needed. He thus gave to the sheriff $50, for which the sheriff give to him a receipt, and he went to the hotel. This was about 1 o'clock Sunday morning; the hour for the arrival of the train at Princess Anne being about 12 o'clock at night. On Sunday morning, he again saw the sheriff, at which time the sheriff returned to him his money and re

[1] The plaintiff testified: That on Saturday, the 30th day of November, 1907, while holding a ticket entitling him to passage upon the defendant's steamer and over its road and its connecting roads from Norfolk to Philadelphia, he boarded its steamer at Norfolk, from whence he went to Cape Charles, at which point he entered the car of the defendant. That after taking a seat therein two young men, strangers to him, but whose names, as he afterwards learned, were McDorman and Freeze, entered the car, and after being seated a short while one of them took from his pocket a bottle of whisky. They drank from the bottle and then passed it to a number of others in the car, including the witness, who drank from it. The witness stated, however, that it was the first drink he had taken that day, and would not have taken that only they insist-leased him from the necessity of returning ed on it. McDorman and Freeze then sep- as a witness. He then went to the hotel and arated; McDorman taking a seat to himself, paid his bill, and from there he went to the with his head leaning up against the win- station, where he bought a ticket to Delmar, dow. While in this position, Freeze ap- paying therefore 65 cents. The conductor proached and struck him, breaking the win- had taken the coupon off that part of the dow glass. At this time, Truitt, the con- ticket that carried him to Delmar; the tickductor, was not in the car; but when he et was good from Delmar to Philadelphia. learned of the glass being broken he told S. Upshur Long, the sheriff of Somerset Freeze that he would have to pay for it, county referred to in plaintiff's testimony, on which he did. In his conversation with the behalf of the plaintiff, testified: "That he conductor, Freeze charged McDorman and received a message to go to what is called others in the car, including the plaintiff, the midnight train that night [the occawith stealing his money, and became boister- sion referred to in plaintiff's testimony], and ous and profane in his language. While the that he went there, as sheriff, somewhere plaintiff was sitting to himself, and after between 12 and 1 o'clock. That on his way the train had left one of the stations on the to the depot he met John H. Packard, at that road, Kellar's, as the witness thought, the time bailiff of Princess Anne, who was also conductor approached him and told him that going out to the depot; he having been askhe had intended to have Freeze arrested ed, as he stated, to go to the station for the at the station just passed, but that he same purpose for which the sheriff was gocould not find any officer, and that he had to ing. When they reached the depot, the contake him to Princess Anne; that he had ductor inquired if the sheriff or police were phoned up or wired to Princess Anne for the there, and upon being told that they were, sheriff to arrest him there. When the train they were invited by the conductor aboard the was near Princess Anne, the conductor told | train, and were shown "this fellow, Freeze, the plaintiff that he would have to have him as a witness, and wrote down his name and address in Philadelphia, which were given to him by the plaintiff, and was told by the plaintiff that he would come down at any time he would notify him. Later, and just as the train was slowing up for Princess Anne, the conductor said to the plaintiff, Packard, who at the time of the occasion "You have got to go with them," meaning referred to in the testimony, above stated, the officers who were to arrest Freeze, to was bailiff of Princess Anne, and at the time which the plaintiff replied, "Are you going of the trial of the case below was in the to lock me up?" The conductor said: "Yes; employment of the defendant as fireman, teswe shall have to hold you as a witness." To tified, on behalf of the defendant, that after which the plaintiff replied: "All right; I will entering the car he and the conductor went have to go; that is all." When the train to the north end of it, and there the conducstopped at the station, the sheriff and, as he tor said: "That is the man there; this other supposed, his deputy came into the car, and was witness to the whole thing." He did as the deputy with Freeze approached the not remember that the conductor said more, plaintiff the conductor said: "You take this and from that he told the plaintiff to come man along as witness. There is no charge on, and the plaintiff went with him. He did against him; but we have got to have him not recall that the conductor said there

that he had a charge against"; also Waldron, the plaintiff, whom the conductor said he wanted to hold as a witness. Thereupon Waldron, the plaintiff, was taken to and in jail by Mr. Packard. That the plaintiff put up $50 as bail for his appearance as a witness when needed.

Oscar M. Jones, telegraph operator at the station, testified "that he received a message in reference to said occurrence from Conductor Truitt, and after phoning it uptown the message was destroyed; but to the best of his knowledge the message was, 'Have officer arrival of No. 50 at Princess Anne.'"

was no charge against the plaintiff, but re- | The conductor did not hear the officer tell membered that he told the plaintiff there the plaintiff to come along. That he made was no charge against him; that he was only the suggestion to Waldron to get off as a held as a witness. witness to protect him, as Freeze had threatened his life and accused him of robbing him. That he sympathized with Waldron and felt sorry for him and wanted to protect him. That Freeze was full of whisky. That Freeze was disorderly both in Virginia and in Maryland; kept up his disorderly conduct after leaving Peninsula Junction until he got to Princess Anne. Truitt was then asked by the defendant company: "Now, then, Mr. Truitt, you have stated that you were the conductor of the New York, Philadelphia & Norfolk Railroad Company, and you were the conductor at the time of the occurrence to which you have referred. Please state what, if any, authority you have ever had from the railroad company, or from any of its officers, to arrest or take into custody or cause to be arrested or taken into custody any passenger as a witness to any criminal occurrence or disorder occurring on your train?" Το which question the plaintiff objected, and, the court sustaining the objection, the witness was not permitted to answer. To this ruling of the court, the defendant excepted, and this forms the ninth bill of exceptions. We refer to this exception at this time, because it will be considered and discussed in connection with the ruling upon the defendant's rejected prayers.

In our opinion, the court below committed no error in rejecting the third and fourth prayers of the defendant.

[2] There is in this case evidence, sufficient to go to the jury, tending to show a false arrest and imprisonment of the plaintiff, procured by the servant of the defendant, under circumstances that render the defendant liable therefor to the plaintiff. "False

William G. Truitt, offered by the defendant, testified: That on the 30th day of November, 1907, he was and had been for 26 years conductor on defendant's road. That he remembered the occasion when, on the said 30th day of November, 1907, there was a disorderly passenger, Freeze, on his train. That he first learned of the misbehavior or misconduct of this passenger when at or near Nassawadox, a station about 19 miles above Cape Charles. That at the time of the assault made by Freeze on McDorman he was in the Jim Crow car. That when he returned to the car in which Freeze was seated he was pointed out to him by the brakeman. He spoke to Freeze of his misconduct, and told him that he would have to put him off the train, and that he would also have to pay for the window glass, which he did. He accused many of those in the car of robbing him, but finally quieted down. Later, however, he charged the plaintiff with robbing him, about which time he (the conductor) sent a message from Hallwood to the operator at Princess Anne, in which he said, "Please have officer at train on arrival of No. 50." Freeze continued his disorderly conduct until he got near to Kings Creek, Md., among other things, threatening the life of the plaintiff and accusing the plaintiff of robbing him. Finally he said to the plain-imprisonment is a wrong akin to the wrong tiff, "My friend, I am going to have that fellow taken off at Princess Anne, and I would suggest that you get off there as a witness." Plaintiff did not say whether he would or would not get off. When the train arrived at Princess Anne, the conductor stepped to the door and asked if the officer was there, and Mr. Long and Mr. Packard stepped forward. With them, he entered the car and said, "Gentlemen, here is the man," and walked back to where Freeze was, and further said, "Here is the man who raised all this disturbance, and here is another man who I have suggested to get off and appear as a witness." That he did not say to the sheriff (referring to Waldron), "Take this man off," or: "Take this man along as a witness. I have no charge against him." denied saying, "Yes, we shall have to hold you as a witness," to Waldron's asking him, "Are you going to lock me up?" He also denied having any conversation with the plaintiff in which he asked plaintiff about his address. That he did not know the man's

He

of assault and battery, and consists in imposing, by force or threat, an unlawful restraint upon a man's freedom of locomotion." Cooley on Torts, 196; Gillingham v. Ohio R. R. Co., 35 W. Va. 595, 14 S. E. 243, 14 L. R. A. 798, 29 Am. St. Rep. 827. And, as was said in Kirk & Son v. Garrett, 84 Md. 409, 35 Atl. 1092, "False imprisonment consists in the unlawful detention of one against his will." "It is the unlawful restraint of a man's liberty by imprisonment, or by words and array of force." Tomlin v. Hildreth, 65 N. J. Law, 438, 47 Atl. 649.

[3] The plaintiff, with others, while a passenger upon the train of the defendant, witnessed the disorder produced by the misconduct of another passenger, a stranger to him, in the car in which the plaintiff was seated. The plaintiff was in no way a party to the disorder; nor was he in any wise responsible therefor. The conductor, after deciding to prosecute the party creating the disorder, obtained from the plaintiff his name and address, so that he could communicate with

prosecution of the offender. The plaintiff ex- | porarily in restraint of his liberty a person pressed his willingness to appear as a wit- as a witness to testify against an accused ness when wanted and notified; but, notwith-person such authority or power does not exstanding this readiness and willingness on ist in this case. The nature and character his part to attend the trial and testify against the accused when needed, he was told by the conductor that he would be held as a witness, and to secure his attendance he would be "locked up," and when the train arrived at Princess Anne the plaintiff was pointed out by the conductor to the officers who were there to meet the train upon its arrival, pursuant to the order wired by the conductor to the agent at that station, and the officers were told by the conductor to hold him as a witness to testify against the disorderly passenger. The officers took him and carried him to jail, at which place he was asked by them, or one of them, if he could give bail for his appearance as a witness when his presence should be needed at the trial of the disorderly passenger. Upon being told that he could not, as he was a stranger in the town and knew no one, he was then released upon his depositing with one of the officers $50 to secure his appearance as a witness at such trial.

This court, in the case of Hall v. Somerset County, 82 Md. 620, 34 Atl. 771, 32 L. R. A. 449, 51 Am. St. Rep. 484, quoted approvingly from Lord Hale, 2 H. P. C. 282, in which that author, in enumerating the compulsory methods by which witnesses can be brought in to testify, states that "the more ordinary and more effectual means (employed for such purposes), the justices or coroner that take the examination of the person accused, and the information of the witnesses, may at that time, or at any time after, and before the trial, bind over the witnesses to appear at the sessions, and in case of their refusal either to come or to be bound over, may commit them for their contempt on such refusal." This court in that case (Hall v. Somerset County) further stated that section 13 of article 35 of the Code, which provides for the payment of fees for witnesses committed to prison upon their failure to find security for their appearance to testify against the accused, "clearly recognizes the power of a magistrate to commit a witness, in order that his attendance to testify against a person accused of crime may be secured, after the witness fails to give such reasonable security for his appearance as may be demanded of him." This statute, however, which provides for the payment of fees of imprisoned witnesses, refers only to such as are committed by magistrates. Therefore the recognition therein found of the right to imprison witnesses upon their failure to find security for their appearance to testify against a person accused of crime can extend no further than the right of the magistrate to commit in such cases.

But, whatever may be the power and authority, if any, of an officer under extreme conditions and circumstances to hold tem

of the offense and the conditions and circumstances thereof and the relations existing between the parties do not warrant the arrest and imprisonment of the plaintiff, procured, as it was, by the servant of the defendant, in order to secure his attendance as a witness at the trial of the accused party. "The illegality of the arrest and the unlawfulness of the detention are indispensable elements in this form of action." Kirk & Son v. Garrett, supra. In our opinion, these indispensable elements are found to exist in this case. But, by the defendant's rejected third prayer, the court below was asked to instruct the jury that there was no legally sufficient evidence that the conductor, servant of the defendant company, was ever authorized by the defendant to commit the acts complained of, or that such acts were ever adopted or ratified by the defendant company.

[4] We will now consider the ruling of the court in refusing to grant this instruction. The plaintiff having purchased a ticket from the defendant company entitling him to transportation from Norfolk, Va., over the lines of the defendant and its connecting lines, to the city of Philadelphia, he became a passenger upon the car of the defendant, and was such a passenger at the time of the acts complained of in this case. As a passenger, he was entitled to all the rights, privileges, and protection which the law accords to passengers, and subject to the duties and liabilities which the law imposes on a carrier for the safety and proper treatment of its passengers.

In the case of Stewart v. Brooklyn & Crosstown R. R. Co., 90 N. Y. 590, 43 Am. Rep. 185, the court there said: "The trial court dismissed the plaintiff's complaint, on the ground that the defendant's servant, in assaulting the plaintiff [a passenger in the car], was not acting within the scope of his employment, but attacked the plaintiff to gratify some wicked and malicious purpose of his own. Had the person assaulted been one to whom the defendant owed no duty, the dismissal of the plaintiff's complaint would probably have been correct; but the rule which applies in such a case has no application as between a common carrier and his passenger. In such a case, a different rule applies." And this court, in the case of Maryland & P. R. Co. v. Tucker, 115 Md. 43, 80 Atl. 688, filed February 3, 1911, said, in the case of Stewart v. Brooklyn & Crosstown R. R. Co., supra, "it was held that a carrier undertakes to protect his passengers, while being conveyed, against the misconduct of its own servants while engaged in executing the contract."

In the case of Haver v. Central R. R. Co., 62 N. J. 282, 41 Atl. 916, 43 L R. A. 84,