Gillett v. Missouri Valley R.R. Co.

• Decision Date: 28 February 1874
• Citation: 55 Mo. 315
• Parties: THOMAS S. GILLETT, Appellant, v. THE MISSOURI VALLEY RAILROAD COMPANY, Respondent.
• Court: Missouri Supreme Court

55 Mo. 315

THOMAS S. GILLETT, Appellant,

v.THE MISSOURI VALLEY RAILROAD COMPANY, Respondent.

Supreme Court of Missouri.

February Term, 1874.

PER CURIAM.

Appeal from Buchanan Circuit Court.

Hill & Carter, and Loan & Van Waters, for Appellant.

The doctrine of Childs vs. Bank of Missouri, (17 Mo., 213,) is not the law now in relation to the questions involved in this case. (Reg. vs. Gr. North. of Engl. R. R. Co., 58 Eng., C. L. 314, 324; Goodspeed vs. East Haddam Bank, 22 Conn., 530.)

A corporation may be guilty of trespass. (Ang. & Ames, Corp., [4 Ed., 387,] and authorities there cited. Also Ousley vs. Montgomery R. R. Co., 37 Ala., 560; Brakeman vs. N. J. Railroad & Transfer Co., 3 Vroom [N. J.,] 328; See Soulard vs. City of St. Louis, 36 Mo., 546; Towns. Sl. & Lib., 360-361, and n. 1341.) It may be liable for malicious prosecution. (Towns. Sl. 261, and notes; Merrill vs. The Tariff Manuf. Co., 10 Conn., 384.) A corporation is liable for the wrongful acts of its agents while acting for it, and by its discretion, notwithstanding such acts may relate to matters outside their power and authority conferred on the corporation. (Whitfield vs. South East. Railw. Co., 1 El. B. El., 115; 96 Eng. Com. Law 113; Also Phil. Wilm. & Balt. R. R. Co. vs. Quigley, 21 How., U. S., 202; Rhodes vs. Cin., 10 Ohio, 160; Chesnut Hill & Spring House Turnpike Co., vs. Rutter, 4 Seg. & R., 16; Moore vs. R. R., 4 Gray, 465; Higgins vs. Watervliet Turnpike Co., 46 New York 23; Soulard vs. City of St. Louis, 36 Mo., 546, 553.)

B. F. Stringfellow, and Hall & Oliver, for Respondent.

I. A corporation cannot be guilty of a malicious prosecution. (Childs vs. Bank of Missouri, 17 Mo., 213; Stevens vs. Midland Railway, 10 Exch. [Hurls. & G.,] 352; 49 Mo., 273.)

II. A corporation cannot be liable for an act which is not actionable unless it be wilfully and maliciously done, for the reason that a corporation can act only by agents, and a principal is not liable for injuries done wilfully and maliciously by his agent. (McManus vs. Bucket, 1 East, 67; Ang. & Am. Corp., §§ 385, 388; Mason vs. Stiles 21 Mo., 374.)

III. It is impossible that the act complained of in this case could have been done by any agent or employee of defendant in the course of his employment. To institute a malicious prosecution is not, and cannot be the duty of any officer, agent or employee of a railroad company. And if the act complained of was not done in the cause of the employment of the individual who committed it, the defendant is not liable. (39 N. Y. 382; 19 Wend., 343.)

VORIES, Judge, delivered the opinion of the court.

This action was brought by the plaintiff against the defendant to recover damages for a malicious prosecution. The petition charges that defendant is a corporation duly incorporated, &c. that said company had in its employ as its agent one Joseph S. Ford, who was chief secretary and treasurer of said company and so acted as its agent in the line and scope of his authority at the time of the injuries hereinafter mentioned, and who, by virtue of said office, had control and management of the receipt and disbursement of the funds of said company; that plaintiff was in the employ of said company in the capacity of clerk, and had the control and management of certain funds, and had the management and disbursement of certain receipts and funds of said company, under the control and direction of said Ford who was his superior officer in that respect; that defendant, on the 22nd day of July 1869, by virtue of an affidavit made by said Ford, while acting in the line and scope of his authority, did maliciously and corruptly cause the said plaintiff to be arrested and imprisoned, for the embezzlement of certain funds of of said company, of which said Ford had control as agent of said defendant aforesaid, did then and there before one A. Saltzman, a justice of the peace in and for Washington township in Buchannan county, while acting in the line and scope of his authority, make and file with said Saltzman his affidavit and charge that plaintiff had embezzled and converted to his own use, without the consent of said railroad company, a large amount of money to-wit: Five hundred dollars, the property of said company, which said defendant alleged had come into his possession and control by virtue of his employment as clerk of said company; that said Ford while acting in the line and scope of his authority for said company, did further charge that plaintiff had embezzled and converted to his own use, without the consent of said company, divers other moneys, &c., (setting out the particular funds) all of which had come into his hands or possession by virtue of his employment as clerk of said company. That the charges so made by said Ford, while acting in the line and scope of his authority as agent of said company, he, the said Ford, well knew to be false and malicious, yet, notwithstanding, the said defendant, by its agent, as aforesaid, caused said justice of the peace, who was then a duly elected justice of the peace in said county, and had full power for said purpose, to issue a warrant for the arrest and imprisonment of plaintiff upon said charge; that a warrant was issued at the instance of defendant upon said false and malicious charge, and plaintiff arrested and held in custody thereunder &c. that defendant well knowing said charge to be false, caused the proceedings to be commenced in the name of the State of Missouri, &c. that plaintiff was afterwards fully acquitted and the proceedings dismissied.

The petition, after charging other acts in aggravation of damages &c., and a want of any reasonable cause for the prosecution, concluded by praying judgment for damages.

The defendant in its answer fully denies the material allegations in the petition, and as a further answer sets up as a separate defense to the action, that said defendant had reasonable and probable cause for the charge alleged in said petition, and for charging that plaintiff had been guilty of embezzlement as charged in the petition, and the answer further charged that the petition did not state facts sufficient to constitute a cause of action. A replication was filed denying the new matter set up in the answer.

The cause afterwards came on to be heard, and after a jury had been impaneled to try the cause, the plaintiff offered evidence which it is admitted was competent to prove the facts stated in the petition. This evidence was objected to on the ground that the facts stated in the petition were not, in law, sufficient to constitute a cause of action against the defendant. The court sustained the objection, and excluded all evidence in the case. After this the plaintiff suffered a non-suit with leave to move to set the same aside, which said motion was afterwards made and overruled by the court, when the plaintiff excepted and has appealed to this court. It will be seen that the only question involved in this case, is whether a railroad corporation in a case like this, is liable to the party injured for a malicious prosecution instituted by their agent in the name of the State, It is contended, by the defendant, that a corporation is not capable of malice, and that therefore no such action can be maintained against it.

In the case of Childs vs. The Bank of the State of Missouri, (17 Mo., R. 213,) the same question involved in this case was before this court, and if we are to adhere to the reasoning of the learned judge who delivered the opinion of the court in that case, the present case must be decided in favor of the defendant, and the judgment appealed from in this case be affirmed. But we are urged by the plaintiff to reconsider that decision. The plaintiff insisting that the law on the subject of corporations, has been by the courts of the country, since that decision, so modified as to conform the decisions of the courts to the advanced condition of the country, and that the law as ruled in that case should be so modified as to conform to the recent decisions of our sister States on the same subject. It must be admitted that within the last few years the great increase in the number of corporations, by which the greater part of the commercial business of the country is being transacted, assuming, as they do, all the functions of individuals, has induced a tendency in the recent adjudications on the subject, to assimilate the rights and duties of corporations, to the rights and duties of natural persons, and to hold corporations as responsible for the acts of their agents within the scope of their authority, and within the scope, power and objects of the creation of the corporation, just in the same manner and to the same extent as if they were natural persons. It is said in the opinion delivered in the case of Childs vs. the Bank, before referred to, that “the Bank is a corporation, it cannot utter words, it has no tongue, no hands to commit an assault and battery with, no mind, heart or soul to be put into motion by malice. Therefore if it was an action for an assault and battery, or for a malicious prosecution or for slander, we should at once say, that such could not be maintained.” I think this language is too general and extensive, and the current of the modern authorities do not go to that extent. It seems to be held by the best considered and the current of modern...