Bond v. Wabash R. Co.

• Decision Date: 11 December 1962
• Docket Number: No. 1,No. 49030,49030,1
• Parties: Kenneth BOND, Appellant, v. WABASH RAILROAD COMPANY, a Corporation, Respondent
• Court: Missouri Supreme Court

Page 1

363 S.W.2d 1

Kenneth BOND, Appellant, v. WABASH RAILROAD COMPANY, a Corporation, Respondent.

No. 49030.

Supreme Court of Missouri, Division No. 1.

Dec. 11, 1962.

Marvin G. Marshall and Sherman Landau, St. Louis, for appellant.

Fordyce, Mayne, Hartman, Renard & Stribling, Alphonso H. Voorhees, St. Louis, for respondent.

HOUSER, Commissioner.

Action in two counts for false imprisonment and malicious prosecution. Plaintiff prayed for $25,000 actual and $25,000 punitive damages in each count. This is the fourth of a series of suits of this nature reaching appellate courts, filed by various boys against Wabash Railroad, Claude I. Gabbert and John E. Murphy. See Barnard v. Wabash R. Co., 8 Cir., 208 F.2d 489; Frank v. Wabash R. Co., Mo.Sup., 295 S.W.2d 16; Manson v. Wabash R. Co., Mo.Sup., 338 S.W.2d 54. Following the suggestion of the deaths of the individual defendants the case proceeded to trial against the corporate defendant, resulting in a directed verdict for the railroad on the court for malicious prosecution and a jury verdict for the railroad on the count for false imprisonment. Plaintiff appealed from the ensuing judgment for defendant.

On May 30, 1951, after swimming at Forest Park Highlands in St. Louis and after watching a game at the baseball diamond, plaintiff and three other boys started walking home across Forest Park. Their route took them across the private right of way of the railroad, which maintained a double set of tracks through a 15-20 foot cut which runs across the northeast portion of the park. A footbridge was erected over the tracks for pedestrian traffic. Plaintiff was familiar with the park and knew the footbridge was meant for people to walk on. Instead of traveling over the footbridge provided for the purpose of crossing over the railroads right of way, or traveling over Kingshighway, which runs above the railroad right of way, plaintiff and the three boys walked onto the railroad right of way, down the embankment to the railroad tracks, and across the tracks. John Murphy and Claude Gabbert, special agents for the railroad, licensed as private watchmen, were standing on a footbridge in Forest Park some 385 feet distant from the point where the boys crossed the right of way. The boys were in full view of the special agents. The boys crossed the railroad property and got halfway up the embankment on the other side of the tracks when they observed a train approaching. As the train got to a point opposite where the boys were standing, plaintiff and the other boys all commenced throwing rocks at the train, and continued to do so until the train had passed. The boys then walked from the right of way into the park area. Murphy and Gabbert proceeded after the boys and arrested them at a point 400 feet or more from the railroad right of way. Murphy did not say anything to the boys about trespassing at the time he arrested them. He asked them why they had thrown stones, and all four admitted having thrown the stones. The special agents took the boys to a police station and informed the officer at the desk, Desk Corporal O'Day, what had occurred; that they were juveniles and that they were charged with trespassing. O'Day told Murphy to make a report to the juvenile officer and turn the children over to their parents, with instructions to return the next day. Plaintiff was detained 40 or 45 minutes while waiting for his parents. When the boys returned the next day the juvenile officer talked to them and to their parents and explained the dangers of playing on and around railroad property and of throwing rocks at the trains.

Plaintiff and his companions testified that they crossed the tracks and right of way of the defendant, but denied that either plaintiff or any of them threw rocks at the train. They claimed to have simply waved at the passing train, and denied having admitted that they threw rocks at the train.

At the time in question there was in force and effect Section 79, Chap. 46, Revised Code of the City of St. Louis (1948), which makes it unlawful for any person without lawful authority, or without the express or implied consent of the owner, to enter any improved real estate, lot or parcel of ground in the city. Persons violating the ordinance are deemed guilty of a misdemeanor.

Plaintiff's appeal raises ten points, which we have grouped into six separate headings.

Comments by the court. Defendant placed Mr. Curran, a juvenile officer on the stand. On cross-examination plaintiff's counsel asked a hypothetical question as to the effect on plaintiff's mental well being of having to reveal the arrest in question in answering questions in applications for employment and in entering the navy. The question assumed that plaintiff did not in fact throw any rocks at the train. In sustaining defendant's objection to the question the court commented, 'It assumes he didn't do it, and the testimony here is that he admitted he did do it.' (As indicated, plaintiff and his witnesses had testified negatively, while defendant's witnesses had testified positively, as to the rock throwing.) The court's comment inferentially ignored plaintiff's testimony and was improper, as the court immediately recognized when, upon objection by plaintiff's counsel the court sustained the objection, and upon request by plaintiff's counsel that the remarks be stricked and the jury instructed to disregard, the court said 'Ladies and Gentlemen of the jury, Mr. Marshall made an objection to the remarks I made, and just don't take them into consideration when you bring in your verdict.' Plaintiff asked for no other or further relief. We cannot say that the effect of the improper remark was not dissipated by the prompt corrective action taken by the court.

In his brief on appeal plaintiff further objects to the court's comment that Mr. Curran was 'one of the good' juvenile officers attached to the juvenile court, but that question was not preserved for appellate review in plaintiff's motion for new trial. Sup.Ct. Rule 83.13(a), V.A.M.R.

Admission of evidence. Defendant's watchman Murphy made a written report to defendant, Exhibit J, stating: 'These boys were observed by Lt. Gabbert and myself to throw rocks at Wabash train No. 9 proceeding west.' Plaintiff objects that J was hearsay, self-serving and incompetent; that Murphy was possessed of a motive to misrepresent. The fact that these boys threw rocks as Wabash Train No. 9 was testified to by Murphy and Gabbert. J introduced no new fact into the case; did not relate to any facts which were not established by other competent testimony; was cumulative merely, and therefore not prejudicial, Kelly v. Terminal Railroad Ass'n of St. Louis, Mo.Sup., 315 S.W.2d 699, 703; Covey v. Van Bibber, Mo.App., 311 S.W.2d 112, 116-117; Oglesby v. St. Louis Public Service Co., Mo.App., 338 S.W.2d 357, 364, even if improperly admitted, a question not necessary to be decided.

Other employees made written hearsay reports of other incidents which occurred over a period of more than a year preceding the time in question, involving the throwing of rocks, stones, bricks, etc. at train windows, one of which injured a passenger named Salvador Zepeda; and the shooting of BB guns against car windows, breaking them. The objection is that the reports were not firsthand but were hearsay upon hearsay, and as such inadmissible. The reports were introduced not as evidence of the truth of the facts asserted therein, but to show the reason why defendant's employees were 'on their guard,' as the trial court expressed it, and as evidence of the 'good faith' in which defendant was acting in arresting this plaintiff. The hearsay rule has no application where the extrajudicial utterance or writing is offered "not as an assertion to evidence the matter asserted, but without reference to the truth of the matter asserted * * *." Wigmore on Evidence, Sec. 1766, quoted in Mash v. Missouri Pac. R. Co., Mo.Sup., 341 S.W.2d 822, 827. And as stated by the federal court of appeals in Barnard v. Wabash Railroad Co., supra, 208 F.2d, l. c. 496, this evidence was not prejudicial because 'evidence tending to show defendant's motive and purpose in doing the acts alleged is admissible in mitigation of damages.' Plaintiff had prayed for punitive damages, and evidence of frequent reports of depredations of a similar character occurring along this section of tracks was material to show that Murphy and the other watchman acted reasonably and without malice in making the arrest in question.

The admission of the trespass ordinance is contested on four grounds. First, plaintiff says that under the juvenile laws this 12-year-old boy was not subject to a charge of committing a crime. The ordinance was admitted in this civil action, not for the purpose of determining whether plaintiff was guilty of a 'crime,' but whether there was probable cause for his arrest. Barnard v. Wabash R. Co., supra, 208 F.2d, l. c. 495. Second, plaintiff maintains that the ordinance was invalid because not in harmony with the state law on the subject. The ordinance has not been declared invalid, so far as we are informed, and had not been so declared at the time of the arrest. In such case we need not rule on the validity of the ordinance because the watchman had the right to rely upon its validity until such time as it might be declared invalid. Manson v. Wabash R. Co., supra, 338 S.W.2d, l. c. 59. Third and fourth, plaintiff claims that defendant did not plead that it arrested plaintiff for trespassing, and that the trespass was not asserted as a ground for the arrest at the time plaintiff was arrested. Paragraphs 11-17, both inclusive, of the answer relate to trespassers on the railroad right of way endangering the safety of passengers and interfering with trains; charge plaintiff with being a trespasser; charge plaintiff with having thrown stones, sticks and missiles at a Wabash train at that place, thus interfering with the safe...