Atchison

• Decision Date: 10 December 1887
• Citation: 37 Kan. 773,15 P. 877
• Court: Kansas Supreme Court
• Parties: THE ATCHISON, TOPEKA & SANTA FE RAILROAD COMPANY v. LEON WATSON

15 P. 877

37 Kan. 773

THE ATCHISON, TOPEKA & SANTA FE RAILROAD COMPANY v. LEON WATSON

Supreme Court of Kansas

December 10, 1887

[Copyrighted Material Omitted][Copyrighted Material Omitted][Copyrighted Material Omitted]

Error from Shawnee Superior Court.

ACTION to recover damages for a malicious prosecution, brought against The A. T. & S. F. Rld. Co. and William Higgins in the superior court of Shawnee county.Leon Watson, the plaintiff below, was arrested at Topeka, on the 15th day of April, 1884, on complaint sworn to by William Higgins, an agent and employe of the railroad company, charging Watson with unlawfully, feloniously and willfully displacing a switch connected with the line of the railroad at Osage City, Osage county.Watson was taken to Osage county, and confined in the county jail from April 16 to May 3, 1884.The proceedings were dismissed by the county attorney of Osage county without a hearing, and the railroad company paid the costs.The defendant railroad company filed its answer, in which it alleged that the arrest was made strictly at the suggestion and request of the board of railroad commissioners.A copy of the correspondence between the railroad company and the board of railroad commissioners is attached to the pleadings, and is as follows:

"TOPEKA, KANSAS, September 17, 1883.

"Railroad Commissioners, Topeka, Kansas--GENTLEMEN: On September 1, an accident occurred on this road at Osage City, caused by a brakeman by the name of Watson carelessly and negligently throwing the switch.Watson has escaped.If desired on your part, we will endeavor to effect a capture, and turn him over to be dealt with according to law.An early reply will greatly oblige.This accident resulted in the fireman losing a leg, and severely bruising the engineer.

C. M. FOULKS, Claim Agent."

"TOPEKA, KANSAS, Sept. 21, 1883.

"C. C. Wheeler, Esq., General Manager A. T. & S. F. Rld., Topeka, Kan.--DEAR SIR: We are in receipt of a letter from C. M. Foulks, claim agent of your road, covering account of an accident on your road at Osage City, on the 1st inst., caused by brakeman Watson negligently throwing the switch in front of an approaching train, occasioning severe injuries to the fireman and engineer; and further advising us that if desired on our part an endeavor will be made to effect a capture of the brakeman, who has escaped, to be turned over to us to be dealt with according to law.Accidents of a similar nature have heretofore occurred quite recently on your line from the same cause, and in view of this fact we think it would have a salutary effect to capture the absconding brakeman if possible, and turn him over to the proper authorities to be held accountable for his conduct.The courts in Osage county have jurisdiction of the matter.Yours truly,

BOARD OF RAILROAD COMMISSIONERS."

Trial at the November Term, 1885.The court instructed the jury as follows:

"1.This action was brought originally as an action for false imprisonment and malicious prosecution.But the plaintiff has dismissed so much of his petition as relates to the supposed false imprisonment, and the plaintiff now bases his right of recovery only on the ground of malicious prosecution as alleged in his petition.It is admitted by the defendant Higgins that he made the complaint alleged in plaintiff's petition, and the original of which complaint was read to you in evidence, and it is admitted by the defendant the Atchison,

Topeka & Santa Fe Railroad Company, that it authorized, approved, and sanctioned the making of said complaint by said Higgins.The offense charged in said complaint against Leon Watson, the plaintiff in this action, is a crime of felony under the laws of this state; and if you believe from the evidence that defendants made said complaint, and caused the plaintiff to be arrested and prosecuted on said complaint, through malice, and without probable cause or reasonable grounds for so doing, and that such action or prosecution was finally ended before the commencement of this suit, then plaintiff is entitled to recover in this action.

"2.Notwithstanding the actual innocence of the plaintiff of the offense charged in said complaint, if you should so find from the evidence, and the further fact, if you should so find that defendants caused plaintiff to be arrested and prosecuted on such complaint from malicious or unworthy motives, and that plaintiff thereby sustained damages or injury in his reputation and person, he is without remedy therefor if defendants had just reason to believe, upon the facts and circumstances within their knowledge, that the plaintiff had committed the crime charged upon him.Probable cause is such state of facts and circumstances as would lead a man of ordinary caution and prudence, acting conscientiously, impartially, reasonably, and without prejudice, upon the facts and circumstances within his knowledge, and such reasonable representations, consistent with the guilt of the party accused, made to him by credible persons claiming to know the facts they represent, respecting the committing of such supposed offense, and honestly believed by him to be true, to believe that the person accused is guilty of the offense charged.

"3.Under the crimes act of this state, any person who shall willfully remove or displace any switch connected with the track of any railroad in this state is guilty of a crime punishable by imprisonment in the penitentiary.But a mere accidental or ignorant displacement of any such switch is not a crime, nor punishable as such, even if done through negligence or carelessness.

"4.A man has no right to put the criminal law in motion against another, and deprive him of his liberty, upon mere conjecture that he has been guilty of a crime.He cannot be allowed to put a false and unreasonable construction on the conduct of another, and then justify himself for causing an arrest by claiming that he acted upon appearances.

"5.Before the plaintiff can recover in this case the jury must be satisfied from the evidence introduced: First, that the prosecution was commenced by filing a complaint, and the issuance of a warrant thereon; second, that such complaint was made without probable cause therefor; third, that said complaint was filed and said warrant was procured maliciously, for the purpose of injuring the plaintiff; fourth, that the plaintiff was acquitted or discharged.

"6.The burden of proof rests on the plaintiff to establish, by a preponderance of testimony, every material fact charged in his petition and necessary to a recovery; and if in your opinion under the evidence he has failed to establish any one of such material facts, then your verdict must be for the defendants.

"7.The mere fact that the plaintiff was acquitted or discharged, or the further fact (if you shall believe from the evidence that is the fact) that the plaintiff was not guilty of the offense charged against him, will not authorize you to find a verdict for the plaintiff.You are not called upon to determine the plaintiff's guilt or innocence.The principal questions for your determination are, whether the prosecution against him was malicious and without probable cause.

"8.This action is prosecuted against both the railroad company and William Higgins.It is shown by the pleadings and by the testimony that said Higgins was the agent of the railroad company in instituting the prosecution complained of, and in carrying it on to its close.While such agency cannot release or excuse him from any wrongful or illegal act, if you shall find that his acts were wrongful or illegal, the fact of his agency as stated, as well as the acts of other agents as they may be proven, may be considered in determining the liability of the defendant railroad company.The defendant company, being a corporation, acts only by and through its officers, agents or servants.It is in law held responsible for the wrongful, unlawful and malicious acts of its officers, agents and servants, acting within the scope of their authority.Their acts in such cases are the acts of the company.In determining whether the defendant was actuated by malice or not in procuring the arrest and imprisonment of the plaintiff, you may take into consideration the acts of its agents, Foulks and Higgins, their opportunities to investigate and ascertain the connection of the plaintiff with the supposed offense charged against him, and any failure on their part, if any, to make the fullest investigation proper to be made before commencing judicial proceedings against the plaintiff.And if you shall believe that there was want of probable cause for procuring the arrest and imprisonment of the plaintiff, you are at liberty to infer the malice of the defendant for such want of probable cause, if the same be reasonably inferable therefrom.

"9.Malice, in its popular sense, means hatred, ill-will, or hostility to another, but in its legal sense it has a very different meaning.In law, malice means a wrongful and unlawful motive or purpose; the willful doing of an injurious act without lawful excuse; and it is in this sense that the word malice is used in these instructions, except so far as respects the question of exemplary damages, of which you will be advised presently.

"10.If you believe that the plaintiff was arrested and imprisoned by the defendants upon mere guess, or that the proceedings taken against him were commenced recklessly, and without exercising that care and caution necessary to justify a prudent man in commencing a criminal prosecution against another, then I instruct you that the arrest and imprisonment were without probable cause.

"11.If you shall find for the plaintiff in this action, you may find against either or both of the...