Harris v. Quincy, Omaha & Kansas City Railroad Company

• Decision Date: 19 May 1913
• Citation: 157 S.W. 893,172 Mo.App. 261
• Parties: GUY HARRIS. Respondent, v. QUINCY, OMAHA & KANSAS CITY RAILROAD COMPANY AND J. G. TRIMBLE, Appellants
• Court: Kansas Court of Appeals

157 S.W. 893

172 Mo.App. 261

GUY HARRIS. Respondent, v. QUINCY, OMAHA & KANSAS CITY RAILROAD COMPANY AND J. G. TRIMBLE, Appellants

Court of Appeals of Missouri, Kansas City

May 19, 1913

Appeal from Daviess Circuit Court.--Hon. Arch B. Davis, Judge.

Judgment reversed.

Hall & Hall and Dudley & Selby for appellants.

(1) A citizen in good faith and without malice, under circumstances strongly tending to show guilt, instituting a criminal prosecution, should not be mulcted in damages because afterwards, upon a full investigation, the suspicious circumstances are explained, and the innocence of the party accused made apparent. Our courts incline to the encouragement of criminal prosecutions, when instituted in good faith, without malice, and for the purpose of punishing violators of the law, and suits for malicious prosecution are not favored. Chicago, R. I. & P. Ry. Co. v. Pierce, 98 Ill.App. 368; Smith v. Glynn, 144 S.W. p. 149; Also Ball v. Rowles, 93 Cal. 222-27; Amer. S. Rep 174 and note. (2) "The holding of the accused person by a committing magistrate as well as the finding of an indictment by a grand jury is generally accounted evidence of probable cause" (Burdick on Torts). Ross v Hixon, 46 Kan. 550, 26 Am. St. R. 123, with valuable note; Perkins v. Spaulding, 132 Mass. 218, 65 N.E 72. (3) Advice of counsel is evidence of probable cause: Stewart v. Sonnebourn, 98 U.S. 187; Stubbs v. Mulholland, 168 Mo. 47; Smith v. Glynn, 144 S.W. 149. (4) The fact that the counsel was defendant's regular attorney should make no difference. Kansas, etc. Co. v. Gallaway, Ark., 74 S.W. 521. (5) In most jurisdictions, the failure of the prosecution, while a fact which the plaintiff must establish in order to make out his case, is not evidence tending to show the want of probable cause (Burdick on Torts). Stewart v. Sonnebourn, 98 U.S. 187; Thompson v. Rubber Co., 56 Conn. 493, 16 At. 554; Anderson v. Friend, 85 Ill. 135; Philpot v. Lucas, 101 Ia. 478; Stone v. Cracker, 24 Pick (41 Mass.), 81; Boeger v. Langerberg, 97 Mo. 390 (See note & 10 Am. St. R. 322); Apgar v. Woolstone, 43 N. J. I. 57; Wilard v. Holmes, 142 N.Y. 492; Eastman v. Montas, 32 Or. 291; 67 Am. St. R. 231; Cullen v. Hanisch, 114 Wis. 24.

Platt Hubbell and George Hubbell for respondent.

A trade-mark is not merely an advertisement sign--it means ownership--the opinion rendered in this cause is in conflict with the supreme court of Missouri as well as all the authorities. "The object of a trade-mark is to point out distinctly the origin or ownership." Oakes v. Candy Co., 146 Mo. 391, l. c. 397; Filley v. Fassell, 44 Mo. 168; 28 Am. & Eng. Ency. of Law (Second Ed.), 346, 347; Anderson's Law Dictionary, 1044; Trade-mark Cases, 100 U.S. 92-99, 25 Law. Ed. 550.

OPINION

JOHNSON, J.

--This is an action for malicious prosecution. Plaintiff recovered judgment for $ 2500 actual and $ 2500 punitive damages and defendants appealed. The action is an outgrowth of an unsuccessful prosecution of plaintiff for perjury. The defendant railroad company, acting by its general attorney, the defendant Trimble, procured the arrest and prosecution of plaintiff. At the conclusion of the evidence introduced at the trial of that case the court gave a peremptory instruction to the jury to return a verdict of acquittal. The ground of the ruling that the State had failed to make a case against plaintiff was that the alleged perjured testimony was not material to the issues of the case in which the testimony was given. After his acquittal plaintiff commenced this action to recover damages on the ground that his prosecution was without probable cause and malicious.

The material facts of the case are as follows: In August, 1904, Warren Harris, the father of plaintiff, sued the defendant company under section 1105, Rev. Stat. 1899, to recover double damages for live stock killed by trains operated on defendant's railroad at places where the railroad crosses his farm in Grundy county. The petition contained four counts and the cause pleaded in the first count was for the killing of a horse on December 9, 1901. It was alleged in the petition that "for several years prior to the occurrence of the events hereinafter mentioned, the defendant owned and operated, and now owns and operates a certain railroad known as the Quincy, Omaha & Kansas City Railroad, together with the tracks, cars, locomotives and appurtenances thereto belonging, and was and now is, for hire, a common carrier of passengers and freight. For several years prior to the dates hereinafter mentioned, and at all times herein mentioned, the defendant ran and operated, and now runs and operates its said railroad in and through a portion of the plaintiff's farm in Trenton township, Grundy county, Missouri.

"In so passing in and through said portion of plaintiff's said farm defendant's railroad passes through, along and adjoining inclosed or cultivated fields, all of plaintiff's farm being inclosed or cultivated. None of plaintiff's farm is within the limits of an incorporated city or town.

"It was then and there the legal duty and obligation of the defendant to erect and maintain lawful fences on the sides of its railroad track and right of way, where the same passes through, along and adjoining plaintiff's said farm; and also in connection with such fences, to construct and maintain cattle guards reasonable and ordinarily sufficient to prevent horses, cattle, mules and all other animals from passing over the same."

The other three counts of the petition were based on the killing of live stock in the years 1903 and 1904. The answer admitted the incorporation of defendant company and denied every other allegation of the petition.

At the trial of that case which began September 28, 1904, one of the attorneys of the railroad company in his opening statement to the jury asserted that plaintiff would be unable to prove that at the time of the killing of the horse the defendant was operating the railroad or was the owner of the train that killed the animal. The evidence in the record before us shows that this statement of the attorney was accurate. The Quincy, Omaha & Kansas City Railroad Company was the owner of the railroad in December, 1901, but the road was being operated by the receivers of another corporation--the Omaha, Kansas City and Eastern Railroad Company,--under a lease executed by the owner on June 25, 1897. The lessor regained possession in January, 1902, before the killing of the stock for which Harris claimed damages in the second, third and fourth counts of his petition and after the origin of the cause pleaded in the first count. During the period of the operation of the road by the lessee and its receivers the rolling stock used on the road was the property of the lessee and was marked with its name and initials. None of the locomotives or cars bore the name or initials of the lessor company but it appears that the lessee, in addition to placing its name and initials on its cars and engines, also adorned them with certain advertising signs or trademarks that had been used since the construction of the road as its distinctive trademarks. The trademark in general use at the time of the execution of the lease was in the form of a diamond in which were the letters "O. K." and in smaller letters the words "Quincy Route." There is evidence tending to show that this device, the use of which was continued by the lessee not only symbolized the railroad but had become identified with the proprietorship of the lessor company.

During the introduction of the plaintiff's evidence in the Warren Harris case, his son, the present plaintiff, was examined as a witness and testified as follows:

"Q. Now the engine and cars in 1901, December, 1901, and prior thereto in that year was marked how? A. With Q. O. & K. C. letters.

"Q. You saw them on the tracks there? A. Yes, sir, the engines were marked Q. O. & K. C. and have been for years."

This was the only evidence offered by Warren Harris on the subject of the operation of the road on the date the horse was killed. The defendant offered witnesses who testified that the railroad was operated at that time by the receivers of the lessee company and that none of the rolling stock was marked with Q. O. & K. C. letters but with the name and letters of the Omaha, Kansas City & Eastern Company. At the close of the evidence the court overruled the demurrer to the evidence offered by defendant on the ground that the testimony of plaintiff we have quoted was sufficient to take the case to the jury on the issue of whether or not the defendant company was operating the road on the date the horse was killed. Counsel for plaintiff argued that since the evidence disclosed that the defendant was the owner and lessor of the road it would be liable for damages resulting from a negligent breach of the fencing law regardless of all other considerations, but the court rejected that view and, as stated, ruled that the case would be sent to the jury on the issue of whether or not defendant was operating the railroad. Thereupon the plaintiff dismissed the first count of the petition and went to the jury on the remaining counts. Afterward he brought a new suit to recover damages for the horse and was allowed to recover on the theory that defendant's ownership of the road made it liable for a negligent breach of the fencing law. Defendant appealed and we affirmed the judgment (124 Mo.App. 45), holding, as stated in the syllabus, that "a railroad company cannot avoid its liability for fencing its track by leasing its railroad or licensing another to operate it; but it will be liable for the killing of stock by the receiver of its lessee."

In this decision the rule was announced that duties imposed by ...