Barnard v. Wabash R. Co.

• Decision Date: 29 December 1953
• Docket Number: No. 14874.,14874.
• Parties: BARNARD v. WABASH R. CO.
• Court: U.S. Court of Appeals — Eighth Circuit

208 F.2d 489 (1953)

BARNARD v. WABASH R. CO.

No. 14874.

United States Court of Appeals Eighth Circuit.

December 7, 1953.

Rehearing Denied December 29, 1953.

COPYRIGHT MATERIAL OMITTED

Sherman Landau, St. Louis, Mo., for appellant.

Oliver J. Miller, St. Louis, Mo. (Joseph H. Miller, Jacob M. Lashly, and Lashly, Lashly & Miller, St. Louis, Mo., on the brief), for appellee.

Before GARDNER, Chief Judge, and WOODROUGH and COLLET, Circuit Judges.

WOODROUGH, Circuit Judge.

This action for damages for false arrest and imprisonment was brought on behalf of Billy Barnard, a minor, residing in St. Louis, Missouri, by his mother and natural guardian, Evelyn Barnard, against defendant Wabash Railroad Company, a corporation organized under the laws of the State of Ohio. It was alleged in the complaint that plaintiff was falsely imprisoned by virtue of a false arrest at the hands of one Gabbert, a private watchman employed by defendant, and $50,000 actual damages and punitive damages in the amount of $50,000 were prayed for. Defendant answered by general denial and alleged that plaintiff was committing acts of trespass upon the private property of defendant, threatening danger to the free passage of trains and the safety of passengers thereon, and to plaintiff himself and his companions, and was detained by defendant's watchman Gabbert by virtue of his authority as an officer of the law, duly commissioned under Section 84.340 RSMo 1949, V.A.M.S. Upon the issues so joined, trial was had to a jury which rendered a verdict for defendant. Judgment of dismissal having been entered on said verdict and motion for new trial overruled, plaintiff perfected this appeal.

It appears that appellee maintains and operates a double line track through Forest Park, a public park in the City of St. Louis, under an easement of right of way granted by the City. The tracks lie in an excavation or depression about 15 feet deep and run in an "S" curve through the park. Alongside of the tracks a lead sheathed cable, used to communicate messages regarding appellee's train movements, hangs suspended from poles about six or seven feet above the ground. Approximately 800 feet west of Kingshighway, which is the eastern boundary of the park, and 1200 feet south of Lindell Boulevard, the northern boundary line, appellee has erected a footbridge over its tracks for the convenience and safety of pedestrians in the park. At about 3:30 P. M. on May 30, 1951 (Decoration Day), appellant Billy Barnard, 14, and a companion, Jimmy Manson, 16, approached this footbridge on their way home from the park. They decided to linger awhile in the shade under the bridge and proceeded down the embankment to the tracks. Appellant testified that after sitting in the shade and talking awhile Manson jumped up and "chinned" himself on the cable running alongside of the railroad tracks. When he dropped to the ground, appellant performed the same feat. Both then sat near the tracks and "flipped" pebbles at the cable. The next thing he knew a man, who he later learned was Claude I. Gabbert, was standing on the west embankment pointing a gun at him. Mr. Gabbert, a private watchman employed by defendant, who had been patrolling this right of way since 1920, denied that he at any time removed his gun from inside his shirt where he customarily carried it. He testified that his attention was attracted when he heard some boys shouting and saw the cable and pole swaying. On hurrying over to the footbridge Gabbert saw both of the boys hanging and swinging on the cable at the same time. It is admitted that appellant weighed 130 pounds and his companion 160 pounds at the time, and their combined weight exceeded the snow or ice weight the cable was designed to carry. It was also proved that such hanging and swinging on the cable could impair its efficiency for use for train movements. Gabbert testified that as he crossed the footbridge the cable stopped swaying and he heard rocks hitting the steel girders of the bridge, sounding like hammer blows, and that upon looking over the side of the bridge he saw the boys throwing rocks at the cable. He requested a stranger who was walking across the bridge to telephone the police department to send down a scout car and gave him the telephone number and a quarter for the purpose. He further testified that he went about two-thirds of the way down the embankment and asked the boys what they were doing. On their reply that they didn't think they were doing any harm, Gabbert showed them his badge as watchman of appellee company and told them they were under arrest and to come along with him. Appellant's testimony that Gabbert said he would shoot them in the back if they tried to run was flatly denied by Gabbert. Gabbert preceded appellant and his companion up the embankment and they walked to a spot some distance east of the footbridge where they waited five or ten minutes for a patrol car from the city police department. After proceeding some distance further, they met the patrol car and Gabbert told the officers to take appellant and Manson to the station and hold them for juvenile officers. The boys were placed in the cell block but were not booked nor charged with any offense. Police records at the 11th District Station show only that they were taken into custody. They had been turned over to the officers at about 3:45 P. M. and were released to their parents at 5:00 P. M. On the following morning appellant reported to the juvenile officer and received a lecture on the dangers of playing around the railroad tracks in the park. What final disposition of the case was made by the juvenile court does not appear in the record because under the law of Missouri such proceedings are cloaked with secrecy and cannot, with certain exceptions, be used as evidence in other cases.

For the purposes of this appeal it is undisputed that appellant was taken into custody and temporarily deprived of his liberty, so that an actual arrest was effected.

Appellant has assigned a large number of errors in the giving and refusing of instructions and in the admission and exclusion of testimony, and especially he contends that the court erred in refusing his request for peremptory instruction in his favor on the ground that the arrest was unlawful because Gabbert had no authority to make an arrest.

The trial court charged the jury, "* * * on said occasion Gabbert was a private watchman, by commission from the St. Louis Board of Police Commissioners, and as such had the power to arrest under said commission." Appellant contends that this was an erroneous statement of the law and that, under the law of Missouri, the authority of a private watchman to make an arrest is equal to, but no greater than, that of private citizens generally.

Admittedly there is no state statute specifically providing that private watchmen shall have the same power to arrest as police officers and other law enforcement officials. Nor have we been able to find a court decision so holding. Neither is there controlling decision that the duly licensed watchman does not have such power. The trial court's charge was based upon its interpretation of two sections of the Missouri statute. Section 84.340 RSMo 1949, V.A.M.S., provides:

"The police commissioner of the said cities shall have power to regulate and license all private watchmen, private detectives and private policemen, serving or acting as such in said cities, and no person shall act as such private watchman, private detective or private policeman in said cities without first having obtained the written license of the president or acting president of said police commissions of the said cities, under pain of being guilty of a misdemeanor (7712)."

Section 84.330 RSMo 1949, V.A.M.S., further provides:

"The members of the police force of the cities covered by sections 84.010 to 84.340, organized and appointed by the police commissioners of said cities, are hereby declared to be officers of the said cities, under the charter and ordinances thereof, and also to be officers of the state of Missouri, and shall be so deemed and taken in all courts having jurisdiction of offenses against the laws of this state or the ordinances of said cities (7711)."

The trial court construed these sections to mean that this private watchman, licensed and appointed by the Board of Police Commissioners, had the power to make the arrest on defendant's right-of-way. Appellant, on the other hand, argues that Section 84.340 was enacted only to give the Board of Police Commissioners means by which to regulate the activities of private watchmen and that the appointment of members of the police force under Section 84.330 does not contemplate nor include private watchmen. Further, that Section 84.100 RSMo 1949, V.A.M.S., limits the number of policemen for the city of St. Louis and does not include private watchmen. And finally, that the sole purpose of the license granted under Section 84.340 is to clothe the private watchman with immunity from arrest for carrying a gun.

In the absence of controlling authority on this point, we must decline to hold that the charge given by the court below was an erroneous statement of the law. As this court has said many times, "The considered opinion of a trial judge as to a question of local law may properly be accorded great weight by this court. It will not adopt a view contrary to that of the trial judge unless convinced of error. * * * All that this court reasonably can be expected to do in reviewing cases governed by state law is to see that the determination of the trial court is not induced by a clear misconception or misapplication of the law." Russell v. Turner, 8 Cir., 1945, 148 F.2d 562, 564. See also Northern Liquid Gas Co. v. Hildreth, 8 Cir., 180 F.2d 330; Nolley v. Chicago, M. St. P. & P. R. Co., 8 Cir., 183 F.2d 566; National Bellas Hess, Inc., v. Kalis, 8 Cir., 191 F.2d 739. In Buder v. Becker, 8 Cir., 1950, 185 F.2d 311...