Frank v. Wabash R. Co., 45320

• Citation: 295 S.W.2d 16
• Decision Date: 08 October 1956
• Docket Number: No. 45320,No. 2,45320,2
• Parties: Richard FRANK, a Minor, by Harry Frank, his Father and Natural Guardian, Appellant, v. WABASH RAILROAD COMPANY, a Corporation, and Raymond M. Gillispie, Respondents
• Court: United States State Supreme Court of Missouri

Page 16

295 S.W.2d 16

Richard FRANK, a Minor, by Harry Frank, his Father and Natural Guardian, Appellant, v. WABASH RAILROAD COMPANY, a Corporation, and Raymond M.

Gillispie, Respondents.

No. 45320.

Supreme Court of Missouri, Division No. 2.

Oct. 8, 1956.

Motion for Rehearing or for Transfer to Court en Banc Denied

Nov. 12, 1956.

Hullverson & Richardson, St. Louis, for appellant.

Ely & Ely, Robert C. Ely, Alphonso H. Voorhees, St. Louis, for respondents.

STOCKARD, Commissioner.

This is an action seeking $25,000 actual and $25,000 punitive damages for false arrest and imprisonment brought on behalf of Richard Frank, a minor, by his father and natural guardian, against the Wabash Railroad Company (hereafter called 'Wabash') and Raymond M. Gillispie, a private watchman of Wabash licensed as such by the City of St. Louis. John E. Murphy was also named as defendant by plaintiff but there was a voluntary dismissal as to him at the close of all the evidence.

It was alleged that plaintiff was imprisoned as the result of what is commonly termed a false arrest at the hands of Gillispie. Defendants denied generally the essential allegations of the petition and alleged that plaintiff and four companions of his were detained by Gillispie because they were committing acts of trespass in violation of a city ordinance, declared to constitute a misdemeanor, and because they were interfering with the safe operation of a Wabash train and endangering the passengers riding thereon by throwing sticks and rocks at the against the train, also declared to be a misdemeanor by Section 560.325 RSMo 1949, V.A.M.S.

Trial was had to a jury which rendered a verdict for defendants. After judgment on said verdict, and after motion for a new trial was overruled, plaintiff perfected this appeal.

We first must necessarily dispose of a motion by respondents to dismiss this appeal for the reason that appellant's brief fails to comply with Supreme Court Rule 1.08, 42 V.A.M.S., in that it does not contain 'A fair and concise statement of the facts without argument' and includes 'Irrelevant facts and testimony'. After reading carefully all of the testimony we are constrained to say that the motion is not entirely without merit. However, the violations are not such as to warrant dismissal of the appeal. The motion is overruled.

At the place where the arrest took place the Wabash maintains and operates double railroad tracks which lie in an excavation or depression. Prior to the incident leading up to the arrest in this case, Wabash had received several reports that boys were throwing rocks at trains near its Delmar station in St. Louis. On two occasions windows were broken in trains, apparently as the result of thrown rocks, and in one case a passenger had received injuries from the broken glass. By reason of this Wabash had sent Gillispie to the area of the Delmar station to look for persons throwing rocks at its trains. On the afternoon of April 17, 1951, plaintiff and four companions went to an area referred to as 'Albrecht's Lot' which belonged to the City of St. Louis and adjoined Wabash's tracks. Although denied by the boys who testified, including plaintiff, there was substantial evidence from which a jury could find that the boys were running back and forth across the tracks, and that a short time before a train was due to arrive at the nearby Delmar station they were told by an employee of Wabash that they had better get off the tracks but they did not do so, and also that they threw sticks and rocks at a Wabash passenger train as it passed, some of which hit the train.

Gillispie testified that he saw the boys throw sticks and rocks at the train, and that when they climbed up the embankment forming the slanting side of the excavation for the tracks he took them into custody. The boys went with Gillispie at his request to the Delmar station where he called Murphy, his superior, and he then called the city police who took the boys to the 12th District Police Station. After the boys were questioned by the police and 'talked to' by Murphy they were taken to their homes.

It was admitted by the defendants that Gillispie took plaintiff into custody without a warrant. Plaintiff contends that the trial court erred in denying his motion for a directed verdict as to liability because Gillispie, as a matter of law, had no authority greater than that of a private citizen, who (with certain exceptions not here applicable) is not privileged to arrest another without a warrant for the commission of a misdemeanor. For the 'unusual situations' in which a plaintiff may be entitled to a directed verdict as to liability see Cunningham v. Reagan, Mo.Sup., 273 S.W.2d 174; Rogers v. Thompson, 364 Mo. 605, 265 S.W.2d 282; Williamson v. Wabash Railroad Company, 355 Mo. 248, 196 S.W.2d 129.

Section 84.340 and 84.330 (all statutory references are to RSMo 1949, V.A.M.S.) respectively are as follows:

'84.340. Board of police--power to regulate private detectives, etc. (St. Louis).-- 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 commissioners of the said cities, under pain of being guilty of a misdemeanor.'

'84.330. Police force members are officers of state (St. Louis).-- 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.'

Wabash contends, and as evidenced by the instructions given it was the position of the trial court, that these two sections and the license as a private watchman issued to Gillispie by the Board of Police Commissioners of the City of St. Louis, authorized him to arrest plaintiff under the circumstances of this case. We have found no opinion of the appellate courts of this state directly in point, however the contention of Wabash is in accord with the ruling of the trial court in a similar case in the United States District Court for the Eastern District of Missouri. See Barnard v. Wabash R. Co., 208 F.2d 489.

Because of the methods of operation and type and nature of the equipment, acts of malicious mischief, when done in relation to or against railroad property, could have disastrous consequences to the members of the public riding on the railroad and to the railroad property. In order to protect their property and the public it is necessary that railroads employ private watchmen or policemen, and in order that those persons so employed can effectively perform the duties assigned to them it is not uncommon for them to be given authority pertaining to arrests greater than that of private individuals. As stated in National Labor Relations Board v. Jones & Laughlin Steel Corporation, 331 U.S. 416, 429, 67 S.Ct. 1274, 1281, 91 L.Ed. 1575, 1583, 'It is a common practice in this country for private watchmen or guards to be vested with the powers of policemen, sheriffs or peace officers to protect the private property of their private employers.' This procedure affords a method of obtaining the extra and essential police protection by those companies requiring it without the cost being placed upon the public generally. For examples where persons employed by railroads were invested with police powers, see Thornton v. Missouri Pacific R. Co., 42 Mo.App. 58; Cincinnati, New Orleans and Texas Pacific Railway Company v Cundiff, 166 Ky. 594, 179 S.W. 615, Ann.Cas.1916C 513; McKain v. Baltimore & Ohio Railroad Company, 65 W.Va. 233, 64 S.E. 18, 23 L.R.A.,N.S., 289, 131 Am.St.Rep. 964, 17 Ann.Cas. 634; Taylor v. New York & Long Branch Railroad Company, 80 N.J.L. 282, 78 A. 169, 39 L.R.A.,N.S., 122; Deck v. Baltimore & Ohio Railroad Company, 100 Md. 168, 59 A. 650; Sharp v. Erie Railroad Company, 184 N.Y. 100, 76 N.E. 923. See also the collection of cases pertaining to the liability of a railroad for the acts of a special police officer in 10 Negligence and Compensation Cases, at page 295; 39 L.R.A.,N.S., at page 122; and 17 Ann.Cas. at page 638. In some of the above referred-to cases the railroad was held liable for the acts of the special police officer because he exceeded his authority or for some other reason, but these cases demonstrate the wide-spread and accepted practice of the employment by railroads of persons who are vested with limited police powers in order to provide without expense to the public the required and necessary police protection of railroad property.

For the reason that there was substantial evidence that in the presence of Gillispie plaintiff and his companions threw sticks and rocks at a passing Wabash passenger train, conduct declared to be a misdemeanor by Section 560.325, the issue is this case is narrowed to the question of whether Gillispie possessed the authority of a police officer to arrest plaintiff for the commission of a misdemeanor in his presence.

At the time of the arrest, Gillispie held a valid license as a private watchman issued to him by the Board of Police Commissioners of the City of St. Louis. Appellant contends that Section 84.330 can have no application to Section 84.340, but the position we take makes unnecessary a determination of this question. Section 84.340 authorizes the City of St. Louis to license private watchmen and to regulate the private watchmen so licensed. The purpose of a license is to grant to the licensee a special privilege or authority not...