concurring.
I desire on my own behalf to attempt to emphasize one or two points that seem to me to be very important in the case, and I do it because these are the points upon which the court has been divided in its opinions.
As indicated by my associate who has just spoken, there was an effort made to have Beatty testify as to his understanding of the capacity in which he acted on this occasion; that was denied by the court below, and we think correctly. But there was a series of requests to charged based apparently upon the same idea; that is to say, that the jury could, in some way, from the transactions, ascertain the opinion or idea of Beatty as to the capacity in which he acted, and that then they were to give that idea or opinion consideration, and that, under certain charges requested, if they had been given, it might have a controlling effect.
Now, we have concluded that although the evidence is not strong — is not entirely satisfactory — there is enough here to justify the jury in finding that Beatty was in fact acting at this time for the company (I do not mean in this particular transaction, but generally, at that period) in two capacities: first, as a policeman with all the authority of a. policeman in a city of the first class, so long as he exercised that authority with *376respect to the property of the railroad company, and in enforcing such rules as the railroad company may have laid down for the protection of itself, its property and the public, and that he was also acting as a sort of patrolman, perhaps a detective, in the preservation of order and in the protection of property for the railroad company, outside of and beyond, the scope of his duties and authority as a policeman.
It is with respect to his action in this last mentioned capacity that the plaintiff has undertaken to hold the railroad company liable. I say the evidence is not clear and satisfactory that he was employed by the railroad company to act and that he was acting in his private capacity, but we think there is enough to indicate that they recognized him as being in their service in the doing of those things; for instance, the driving of hoboes and undesirable and objectionable people away from the right-of-way, so that they might not commit trespasses or crimes on the company’s property or grounds.
If he had been permitted to testify to what was in his mind, or what he may have supposed when a witness was in his mind, when 'he was acting on this occasion, as to the capacity in which he was acting, he certainly would have been in a position of great advantage to one party to the suit, -.and of great disadvantage to the other party, to say the least of it. In this particular instance it was intended by the testimony offered, to prove that he was attempting to act, and supposed he was acting, and intended to act in the capacity of a policeman. If he had been of a different mind, for instance, if he were a witness unfriendly to the railroad company, he might conclude, upon reflection, that he was not acting as a policeman, but' that he was acting in the capacity of a private employe of the railroad company, and thereby put the railroad company at great disadvantage. Certainly he ought not, by his mere ipse dixit, or declaration of his supposition as to the capacity in which he was acting, either to fix the liability of the railroad company, or relieve or exonerate it. Yet what he might say as to the capacity in which he was acting, or supposed he was acting, would not be susceptible of denial, so there would be only one way of getting away from it, and that would be for the jury to- disbelieve it. Unless they disbelieved his unsupported statement, which could not be contra-*377dieted, his declaration upon the subject would be an absolute finality.
That may not always be a valid objection to evidence, but we think it should have a good deal of influence here, where, after the act, one undertakes to characterize his own act and fix the responsibility of himself or another by declaring what was in his mind as to the capacity in which he acted.
If the law were, as to such policeman, that the company should be responsible for his acts in excess of authority, or his wrongful acts as a policeman (as in the case of a railroad conductor) even if it were clear that his acts were entirely outside of the scope of the duties or authority of a policeman, if such evidence were competent, he might make the railroad company liable, or put it in great danger of being required to answer in damages by his simple declaration that, on the occasion, he understood that he was acting in the capacity of policeman.
We think that would be a very unsafe rule to adopt, and one that should not be adopted; and it follows that if he should not be allowed to testify as to his notion' of the capacity in which he was acting, it would not be proper to direct the jury to try to divine from the circumstances and then to consider what he may have had in his mind upon the subject.
We think the capacity in which he was acting must be determined by the acts that he did. If they were within the scope of the duties of a policeman, then it should be said that he was acting as a policeman, and even if he exceeded his authority in the performance of a policeman’s duty by the use of an excess of force or otherwise, under the law, the company would be exonerated from the consequences of his acts.
On the other hand, if his action was clearly outside of the scope of the duties or authority of a policeman, we think it should be found in that case, that he is not acting as a policeman, and it did not lie in his month to undertake to exonerate himself or the company by saying that the acts were acts that a policeman should do, or that he had it in his mind to act as a policeman on that occasion and therefore the company is not responsible.
On this occasion, as has been stated, he did not disclose that he was a policeman; he did not disclose it by the garb he wore — by any uniform; he did not disclose the badge of a policeman that *378he had upon his person; and when the plaintiff below, who evidently did not known him and did not know that he was a policeman, but had been ordered by him to “move on,” inquired of him who he was (not perhaps what his name was, for he was evidently seeking to ascertain by what authority Beatty undertook to interfere with him), Beatty refrained from telling him and did not disclose that he was a policeman, and then he proceeded to do acts which in our opinion were not within the scope of the duties of a policeman.
Beatty says that he went down there suspecting that this man was going to attempt to steal a ride on the train. The evidence in the case is pretty clear that when the altercation took place, and when, in the course of the altercation (according to the testimony of Fiebaeh), Beatty struck the first blow, the train had moved out, and there was no opportunity, for anybody to steal a ride upon it; and therefore at the time of doing the acts complained of, whatever Beatty’s suspicions may have been before — whatever his purpose may have been in moving down to that point — when he did the acts complained of, he could not have done them for the purpose of preventing Fiebaeh from stealing a ride .upon the train. If he was there for that purpose, if that could be fairly said, still in the opinion of a majority of the court it was not within the authority of a policeman to arrest a man upon mere suspicion that he contemplates a crime. There must be some overt act amounting to an attempt or preparation to commit a crime to authorize an arrest on view without warrant.
I can not find from this record that there was ever any attempt to make an arrest. What Beatty did when he became provoked that indicated a purpose to arrest, according to his testimony, was to grab at Fiebaeh, and then they clinched and had a fight. What Fiebaeh says Beatty did was to strike him and knock him down. Tie made no declaration and gave no command; he did not say, “I arrest you, come along with me,” or anything like that, at that time. Later on, and after the fight, there may have been something of that kind.
Now, I do not understand that, under the circumstances, he was authorized by law to arrest the man. ITe might have ordered bim off the premises by virtue of his authority as a representative of the railroad company, but not, as I can see, as a police*379man; lie might have ordered him off as a trespasser, and he should have disclosed why he did it, and his authority, especially after having thus been pressed for his authority. Then if the man persisted in remaining there, it is possible that in his other capacity as a policeman he might have arrested him for his refusal to obey the order, i. e., for continued trespass. Fiebach would not be subject to arrest because he was a trespasser, but because he refused to quit the premises when ordered to leave by one apparently authorized to give the order.
It seems to me, therefore, that Beatty, never having put himself in the position of a policeman where he had authority either to arrest this man for attempting to get upon the train -or to arrest him because he persisted in trespassing, it does not lie in his mouth to say on his own behalf, or on behalf of the railroad company, that he was acting in the capacity of a policeman, and that it would not have been proper for the jury to find under the instructions that he was, or might have been acting in that capacity because he supposed he was so acting, and that the company should be exonerated because he supposed he was acting in that capacity.
Neither do I think that the testimony tends to support the idea advanced in argument -that Beatty was not acting for the railroad company at all, but was .acting on his own account, and was guilty of assault and battery for which he alone should answer.
It seems clear to me from the evidence that Beatty was undertaking to order and drive Fiebach from the premises in the exercise of his authority as private patrolman and that the assault and battery was committed in an effort to enforce the order to leave as a sort of “knock down and drag out.”