Atchison, T. & S. F. R. Co. v. Brown

• Decision Date: 06 March 1897
• Citation: 57 Kan. 785,48 P. 31
• Parties: ATCHISON, T. & S. F. R. CO. v. BROWN.
• Court: Kansas Supreme Court

48 P. 31

57 Kan. 785

ATCHISON, T. & S. F. R. CO. v. BROWN.

Supreme Court of Kansas

March 6, 1897

Syllabus

1. An order of court overruling the motion of a defendant for judgment in his favor, upon the special findings of the jury notwithstanding the general verdict, where such findings simply show nonliability to the plaintiff upon his part, is not a final order, and is reviewable only in the event of a judgment against him upon such general verdict in favor of the plaintiff.

2. A corporation is only liable to an action for malicious prosecution where the commencement or carrying on of such prosecution is within the line of employment or scope of authority of the agent instituting or conducting the same.

3. The advice of legal counsel as to the institution of a criminal proceeding, sought and acted upon in good faith, will absolve one from damages for malicious prosecution; but only where all the facts known to the informant, and all which can be learned by a diligent effort to acquire information, have been laid before such counsel.

Error from district court, Sedgwick county; C. Reed, Judge.

Action by Joseph Brown against the Atchison, Topeka & Santa Fé Railroad Company for malicious prosecution. From a judgment for plaintiff, defendant brings error. Reversed.

A. A Hurd and Fred W. Bentley, for plaintiff in error.

E. N. Smith and Aikman & Aikman, for defendant in error.

OPINION

DOSTER, C. J.

William Higgins was an employee of the Atchison, Topeka & Santa Fe Railroad Company. He was engaged in that branch of its service known as the "Claim Department," and his special duties were to investigate depredations committed against the railroad property, and, in the event of discovering evidences of guilt of any person, he was required to lay all facts which he had ascertained before the county attorney of the proper county, and act only under his direction and advice. He was not authorized to procure the arrest of any person upon his own judgment, and had no authority to investigate or report any crimes committed against the state of Kansas or the United States which did not constitute depredations against the property of the railroad company. The post office at Augusta, Butler county, was burglarized in 1885; and Mr. Higgins procured one H. T. Dodson, the sheriff of said county, to file a complaint with a justice of the peace against Joseph Brown, the defendant in error, charging him with the commission of the burglary in question. Upon a preliminary examination before the justice, Mr. Brown was discharged, for lack of probable cause to believe him guilty of the burglary, whereupon he brought suit against the railroad company for damages for malicious prosecution. The company defended upon the ground that Dodson, the complaining witness, was not its employee, and that it was in no wise responsible for his acts; that Mr. Higgins, in instigating the prosecution, was acting wholly outside the limits of his authority or employment; and also that both Higgins and Dodson stated all the facts of which they had knowledge to the county attorney, and, in instituting the prosecution, acted solely upon the advice and under the direction of such attorney. A trial of the case resulted in a general verdict for the plaintiff, and in certain special findings by the jury, in the form of interrogatories and answers. The railroad company moved the court below for judgment in its favor upon the special findings, notwithstanding the general verdict. This motion was overruled, and exceptions taken. It then moved for a new trial, but, pending the determination of its motion, asked to withdraw the same, which the court refused to allow. It then waived all errors occurring on the trial, excepting the refusal to render judgment in its favor on the special findings. The plaintiff, Brown, thereupon confessed the motion for a new trial, and the errors which the company had already waived, upon doing which the court, against the company’s objections, ordered a new trial of the cause. All this occurred in 1889. From this action of the court in refusing leave to withdraw the motion for a new trial, and in granting such new trial, proceedings in error were prosecuted, and the action of the court below in ordering a new trial reversed. Railroad Co. v. Brown, 51 Kan. 6, 32 P. 630. In 1893, after the reversal of the case, the plaintiff moved for judgment on the general verdict, which was granted; and from this judgment and the previous order, in 1889, overruling the defendant’s motion for judgment on the special findings, the present proceeding in error is founded.

The defendant in error objects to the consideration of the case upon the ground that the proceedings in error were instituted too late. The real question, he says, arises upon the refusal of the court to render judgment in the company’s favor upon the special findings; and as this order of refusal was made in 1889, four years before the filing of the petition in error therefrom, this proceeding cannot be entertained. The defendant in error is mistaken. The refusal to render judgment on the special findings was not a final order, or any kind of order from which a proceeding to reverse or vacate would lie until judgment had been rendered against the company. Until then the effect of the order of refusal was held in suspension, as it were. The negation of a right which can work no injury except through the perpetration of a subsequent affirmative act of wrong furnishes no ground of complaint. Non constat a judgment against the company might never be rendered. It must wait and see. Being defendant in the case, asking no affirmative relief, the special findings furnishing no basis for a claim of affirmative relief, to be let alone was sufficient for its purposes and rights. The principle is the same as...