I concur in the opinion of Mr. Chief Justice HUDSPETH:
The one thing that stands out in bold relief in this case is the fact that plaintiff, a woman passenger on defendant's train, who had a ticket which gave her the right to remain thereon, was wrongfully ejected from the train; by reason of which she was damaged in the amount of three hundred dollars.
If she was removed from the train by defendant then it was liable for the damage done; if by officers, the responsibility lies there, whether actionable or not.
The question is whether the facts justify the judgment.
"* * * Upon the trial of any question of fact by the court, its decision must be given in writing and filed with the clerk in the cause, and in such decision the court shall find the facts and give its conclusions of law pertinent to the case, which must be stated separately * * *." Section 105-813, Comp.St. 1929.
The findings of fact made as required by this statute, are the facts upon which a case is determined in this court, unless one or more of such findings are set aside by us upon direct attack. State ex rel. Walker v. Hinkle, Com'r, 37 N.M. 444, 24 P.2d 286; Arias v. Springer et al., 42 N.M. 350, 78 P.2d 153; Supreme Court Rule 15, § 6.
The purpose and intent of the statute is that the district court shall prepare a decision consisting of findings of fact and conclusions of law stated separately, with each finding of fact and each conclusion of law separately paragraphed; and when so prepared, that it be filed in the case as a part of the record proper, and thereupon becomes the decision upon which the judgment thereafter to be entered, must find its support. The findings required are of those ultimate facts (if authorized by the evidence) which plaintiff must prove to establish his right to a judgment, and in the absence of any of which his case fails; and of those ultimate facts (if authorized by the evidence) which the defendant must prove to establish his defense, and in the absence of any of which his defense fails. Merrick v. Deering,30 N.M. 431, 236 P. 735.
It required no more than a page or two of typewriting to cover every ultimate fact and conclusion of law required by the statute to be made, to authorize the judgment entered in this case. Instead of following the purpose and intent of the statute, the district court adopted as findings of fact eighteen pages of typewriting, a mass of evidentiary facts, conclusions of fact and law, and statements on various subjects not necessary to a decision; with a few *Page 388 kernels of ultimate facts scattered through, which we must separate from the mass of chaff to arrive at the ultimate facts upon which the judgment is based. The statute requires the court, not counsel, to make the decision.
The division of the court is over the facts regarding the ejection of the women from defendant's train, and of their legal effect. These facts, as found by the court, are as follows:
The plaintiff and her sister purchased tickets from the defendant's agent at Albuquerque, entitling them to transportation on defendant's train from that station to El Paso, Texas, and return. They entered defendant's train in Albuquerque and started on their journey to El Paso. The conductor received their tickets for such transportation. At the station of Belen, en route to El Paso, the defendant's conductor requested the plaintiff and her sister to leave the train and ordered their suitcases removed therefrom, without informing them why they were required to leave the train, though they inquired of him the reason therefor. Acting upon the request of the conductor, and against their will, they left the train with him and he placed them in the custody of H.L. Rickard, an employee of the defendant but who at the time was acting as a peace officer and not as an agent of the defendant.
The findings of the court are attacked, but the foregoing is substantially supported by the testimony of plaintiff and her sister. We are not permitted to set aside findings made by the trial court if substantially supported, though against the apparent weight of the testimony.
The plaintiff testified:
"The conductor took our tickets, which were round-trip tickets, punched them and returned them to us. At Belen the conductor came along and commenced to take the tickets off the window and my sister asked `What is wrong? Do we change here?' And he told us, `No,' that we were to get off there. My sister asked again if anything was wrong, and he refused to tell us. With him was another man that I suppose was a special agent. The conductor called the porter to come and get our bags and he got our bags and they put us off the train and the train left and the special agent took our bags and we started towards the station. They did not explain anything to us. Only the conductor spoke to us on the train."
The plaintiff's sister testified:
"When we got to Belen the conductor told us we had to get off. I asked if we got off there, or did we have to change. They did not give us an answer. The minute we got off the train left. We went into the station and the officer stood guard over us."
This testimony shows that defendant's special agent (who was a deputy sheriff) was present, but did not speak to the women; that the conductor alone put them off the train. This testimony also substantially supports the findings to the effect *Page 389 that the conductor alone ejected these women from the train, and that the peace officer took no part in it. The testimony is conflicting, but the court believed the women's story, and not that of the train officials, or its agent, the deputy sheriff. We are bound by the court's findings.
It is suggested that defendant's conductor "merely cooperated with officer Rickard in ejecting plaintiff from the train." This is based upon an opinion filed in the case by the district court, prior to the making of his findings of fact and conclusions of law in the case. The statement is in substance that the court would find that the special officer Rickard "assisted" in ejecting the plaintiff from the train; and again, that the defendant's conductor "assisted" in ejecting plaintiff from the train. No part of the opinion of the district court is "findings of fact," as contemplated by section 105-813, N.M.Comp.St. supra.
It was stated in Brothers v. United States, 250 U.S. 88,39 S. Ct. 426, 428, 63 L. Ed. 859:
"Upon the argument here, appellant quoted somewhat amply from the evidence taken before the Court of Claims. For the purposes of our review the findings of that court are to be treated like the verdict of a jury, and we are not at liberty to refer to the evidence any more than to the opinion, for the purpose of eking out, controlling, or modifying their scope."
The statute provides for the making of findings of fact and conclusions of law as a decision of the court in a single document, and filing it as a part of the record proper. Martin et al. v. Hot Springs, 33 N.M. 396, 268 P. 568. The district court is not required to write or file an opinion, and if filed it is no part of the record proper. We are not permitted to eke out findings by resort to the opinion of the district court. Brothers v. United States, supra; Riebel v. Mueller et ux., 177 Minn. 602,225 N.W. 924, 66 A.L.R. 1.
It is suggested that the following fragmentary statements found among the allegations in plaintiff's complaint, should supplement the findings of fact; that it will establish that the officers of the law, and not defendant's conductor, ejected the plaintiff from the train. These fragmentary statements are as follows:
"* * * and said defendant's Conductor proceeded with plaintiff and her sister to the walk immediately outside the train at Belen, New Mexico, and placed the plaintiff and her sister in the custody of H.L. Rickard, who was also an agent and employee of the defendant and who was on the train when the Conductor ordered the plaintiff and her sister to leave the defendant's train; that the said H.L. Rickard also cooperated with the defendant's Conductor at the time the plaintiff and her sister were ordered by the said defendant's Conductor to depart from said defendant's passenger train; * * *."
"* * * said defendant's agent, H.L. Rickard, and said defendant's ticket agent at Belen cooperated in all things with said defendant's conductor in the removal of *Page 390 plaintiff from said defendant's passenger train. * * *"
"That after the removal of the plaintiff from said defendant's railway train by said defendant's conductor and in which removal the said defendant's agent and employee, H.L. Rickard, and said defendant's ticket agent at Belen cooperated with said defendant's railway conductor, the plaintiff was held in the custody of H.L. Rickard. * * *"
"* * * said H.L. Rickard, and the ticket agent of defendant at its station in Belen, New Mexico, caused the plaintiff to be removed from said train. * * *"
If in fact the findings of the court are to be supplemented by statements in plaintiff's complaint regarding her ejectment from the train, the plaintiff is entitled to have all the allegations on the same subject added to the findings.
The segregation of that portion of the allegations on this subject in the complaint that aids defendant's case, is totally unfair.
I find in paragraph 7 of the complaint, a part of which has been quoted, the following:
"* * * the Conductor of said defendant's passenger train, being the authorized agent of the defendant and in charge of said train, ordered the plaintiff and her sister to leave the train, and the defendant's Conductor made the plaintiff and her sister leave the train at Belen, New Mexico; that the defendant's Conductor and agent did not inform the plaintiff and her sister why he ordered them to depart from the defendant's train, although plaintiff and her sister both asked the defendant's said conductor why they were put off the defendant's train at Belen, New Mexico; * * * and said defendant's Conductor proceeded with plaintiff and her sister to the walk immediately outside the train at Belen, New Mexico, and placed the plaintiff and her sister in the custody of H.L. Rickard, who was also an agent and employee of the defendant and who was on the train when the Conductor ordered the plaintiff and her sister to leave the defendant's train; * * *."
The specific assistance rendered by Rickard is not alleged.
Nor is there any statement in the testimony of plaintiff and her sister (upon which the district judge based his findings) that indicates Rickard took part in ejecting them from the train, but to the contrary both women testified that it was the act of the conductor alone. The allegation regarding Rickard "assisting" the conductor may have had reference to Rickard's receiving the plaintiff and her sister at the door of the car and placing them under arrest.
It is not contemplated by the statute that the decision of the court should be augmented by the allegations in the pleadings. It has been held that allegations of ultimate facts in a pleading, which by answer or reply, the opposite party admits, or does not deny, has the force and effect of facts found. Mygatt et al. v. Coe, 124 N.Y. 212, *Page 391 25 N.E. 611, 11 L.R.A. 646. We need not here determine whether this holding is consistent with our statute, which requires that findings of fact and conclusions of law be made as the decision of the court, and filed as a part of the record proper; as the defendant here specifically denied all of the allegations which we have quoted.
It cannot have been intended that the defendant should have the benefit of the allegations of fact in the plaintiff's complaint, which in his answer he asserts are false.
The district court may take notice of admissions of the parties, either in the pleadings, or by counsel in the progress of the trial of the case, in making his decision, and may incorporate such admissions in the findings; but this is because they are admitted facts.
But giving the defendant the benefit of the facts alleged, yet construing the findings thus enlarged in support of the judgment, as we must, (Guaranty Banking Corp. v. Western Ice Bottling Works, 28 N.M. 19, 205 P. 728; Board of Trustees of Town of Torrean Land Grant v. Garcia, 32 N.M. 124, 252 P. 478) I conclude that the effect of the finding is that defendant's conductor was the one who removed the plaintiff and her sister from the train.
It is suggested that the real cause of plaintiff's removal from the train was the acts of officers of the law; that if the conductor had not removed them the officers would have done so; that it was less embarrassing to them for the conductor to do the wrongful act. The vice in this argument is the assumption that any one had the right to remove them from the train and thereby damage them. The act of removing them was a tort, and the one removing them was liable unless immune under the law. The officers of the law may have had protection in the warrant, but the defendant did not. Let me illustrate this thought: An innocent person has been convicted of murder and is on the scaffold to be hanged. The sheriff is possessed of a warrant authorizing him to take the defendant's life; but a good-intentioned neighbor, to prevent his suffering death by hanging, shoots and kills him. He would have been hanged anyway, but the neighbor is a murderer and liable to punishment as such, while the sheriff would have taken no risk in killing him. Another illustration: An officer has a warrant for the arrest of an innocent person, but an officious citizen desiring to save that person from embarrassment, forcibly takes him into custody in the presence of the officer, but without authority. He is liable for the arrest. The man would have been arrested in any event, but could have resisted under the circumstances stated, even to the extent of taking life, if necessary to protect his liberty.
The difference is, that the officer was possessed of authority to do the wrongful act and the conductor was not.
The authority of a conductor, regarding the arrest of passengers on trains, is not in *Page 392 dispute. He is not required to investigate the nature of the charge against the passenger, nor whether the charge is legal, nor if the warrant is fair on its face, nor whether the officer (if known to be one) is in fact in possession of a warrant. If the person seeking to arrest a passenger is an officer of the law, and is acting in good faith, the conductor may point out those whom he believes to be the persons sought; and in case of resistance may advise them that it is best to submit to arrest; all of which may be done by any citizen. He need not protest against his passengers being arrested if he believes the officers are acting in good faith, or even if he had no belief at all upon the subject. He could stand passively and not interfere and his company would not be liable. Of course this does not apply if he actually knows that the arrest is unlawful; he then should protect his passenger.
The line of demarcation is plain and clear and no official of the railway need make a mistake. That line is crossed when the conductor usurps the authority of the officer of the law, and arrests or removes, or causes the removal, of the passenger from the train. He is not vested with authority (unless deputized or called to the assistance of the officer making the arrest, and that does not appear in this case) to order the passenger to leave the train or cause him to do so. As between the passenger and the defendant company, the former cannot be removed by the company, though charged with crime, and liability attaches immediately if he is removed by its agent. The arrest and removal is the duty of the officer of the law, not the conductor.
It is not a question of whether the warrant issued was for these particular passengers; the question is whether the conductor removed, or caused their removal from the train.
It must be remembered that Rickard did not speak to the women, or take any part in their removal (if he was in fact on the train, according to the findings); that they were not told the purpose for which they were ordered to leave the train; that no one took part in the incident of their leaving the train except the conductor, according to the findings of the court. Then why can it be said that the defendant is not liable for the tort?
It is suggested that unless we emasculate the law, overturn rules long established, and supplement the findings of the court with unauthorized facts and inferences, instead of upholding the judgment, as long established rules of procedure require, railway companies will not assist in the apprehension of criminals who may be passengers on their trains. This would be assuming a lack of good citizenship that I know does not exist. But if in fact such result should follow, nevertheless railway companies are not to be held immune from the penalties of the law following their unlawful acts, because of such threat or suggestion.
Burton v. N.Y. Central R. Co., 147 A.D. 557,132 N.Y.S. 628, is not in point. *Page 393 There the conductor took no part in putting the passengers off the train. The extent to which he went was pointing them out and telling them that they had better go along with the officers without any trouble. This was mere advice, and no doubt good advice. If these women had been arrested by Rickard and had given trouble, such advice by the conductor would have been for the passengers' benefit, and would not in any manner have been taking part in the wrong done them. But no statement of similar import was made here. The conductor, without explanation, told the women to leave the train, ordered their baggage removed and the peace officer took no part in it. The Burton Case was not at all similar. The officers in that case were brutal and mean as the court found, and the conductor seeing this, advised them, "you had better go along without any trouble." There is a vast difference between giving good advice and putting people off the train.
The plaintiff had paid her railway fare and was rightfully on the defendant's train. Her ticket was evidence of the right to transportation from Albuquerque to El Paso, Texas, by virtue of a contract with defendant. Dickinson v. Bryant, 69 Okla. 297,172 P. 432, L.R.A. 1918E, 978; New York, L.E. W.R. Co. v. Winter's Adm'r, 143 U.S. 60, 12 S. Ct. 356, 36 L. Ed. 71. It was not necessary to create a liability against the defendant, that the conductor resort to force in ejecting the plaintiff. She is regarded as having been ejected when she obeyed the conductor's command to leave the train. Georgia Railroad Banking Co. v. Eskew, 86 Ga. 641, 12 S.E. 1061, 22 Am. St. Rep. 490; Reasor v. Paducah I. Ferry Co., 152 Ky. 220, 153 S.W. 222, 43 L.R.A., N.S., 820 and annotations.
I concur in affirming the judgment of the district court.