Hobbs v. Illinois Central Railroad Co.

• Decision Date: 21 December 1917
• Docket Number: 30066
• Citation: 165 N.W. 912,182 Iowa 316
• Parties: C. HOBBS, Appellee, v. ILLINOIS CENTRAL RAILROAD COMPANY et al., Appellants
• Court: Iowa Supreme Court

165 N.W. 912

182 Iowa 316

C. HOBBS, Appellee, v. ILLINOIS CENTRAL RAILROAD COMPANY et al., Appellants

No. 30066

Supreme Court of Iowa, Des Moines

December 21, 1917

Appeal from Cherokee District Court.--W. D. BOIES, Judge.

ACTION to recover damages for false arrest and for malicious prosecution of the plaintiff by the defendant and its agents. Trial to a jury, verdict and judgment for plaintiff, and the defendants appeal.

Affirmed.

Molyneux & Maher, Helsell & Helsell, Blewett Lee, and W. S. Horton for appellants.

McCulla & McCulla, Healy, Burnquist & Thomas, and F. F. Faville, for appellee.

GAYNOR C. J., LADD, WEAVER, EVANS, PRESTON, and STEVENS, JJ concur. SALINGER, J. (dissenting).

OPINION

PER CURIAM.

I.

The petition, which was originally in a single count, charged the defendant railway company and two of its alleged servants, who are also made defendants, with having falsely arrested the plaintiff for disorderly conduct; that they thereafter, maliciously and without probable cause, caused an information to be filed before a police judge in the city of Fort Dodge, and thereafter again caused plaintiff's arrest; that the case was prosecuted to judgment before the police judge, resulting in his finding the plaintiff guilty; that plaintiff thereupon prosecuted an appeal to the district court of Webster County, where the action was terminated by the dismissal of the case and the plaintiff's discharge; that the entire prosecution and the arrest were without probable cause, and were wanton and malicious. Defendants filed a general denial, but in effect admitted the arrest and the prosecution; pleaded that they had reasonable cause therefor; that the plaintiff and others were in fact guilty, and were convicted of the offense charged before the police judge aforesaid; and that he (plaintiff) has never been legally acquitted of the charge. They also pleaded that the prosecution was never legally ended or concluded. At the conclusion of the introduction of the testimony on the part of the plaintiff, defendant moved the court for a directed verdict; and, while the motion was pending, plaintiff amended his petition by separating the same into counts, in the first of which he charged a false arrest, on the 17th day of December, by the defendant and its agents, and in the second, he charged them with having maliciously prosecuted the plaintiff before the police judge, and having thereafter falsely arrested plaintiff and continued his prosecution wantonly, maliciously, and without probable cause, down until he was discharged upon the appeal, as stated in the original petition. Defendants objected to the filing of this amendment because it came too late, and for other grounds; but these objections were overruled, and defendants then demurred, because the amendment introduced new causes of action, and that these were barred by the statute of limitations. This demurrer was also overruled, and exception taken. It was then agreed that defendants' original answer should apply to the amended petition, and the cause proceeded.

Such, in brief, were the issues on which the case was tried; and down to this point, no question arises, save the correctness of the rulings of the trial court on objections and demurrer to the amendment to the petition. These rulings may be considered together. The original petition, which was in a single count, contained two, if not three, causes of action: one for malicious prosecution, and one, if not two, actions for false arrest, one before the filing of the information, and the other after the information was filed; and the amended petition did no more, as we think, than to separate and divide two of these causes of action into counts, the first one charging false arrest before the information was filed, and the second, malicious prosecution and false arrest after the information was filed. Even were this not true, it was within the discretion of the trial court to permit the filing of the amendment in furtherance of justice, unless defendants were in some way prejudiced thereby. No such prejudice is shown. Defendant's demurrer, based upon the ground that a new cause of action was introduced by the amendment, which cause was barred by the statute of limitations, is without merit. Gordon v. Chicago, R. I. & P. R. Co., 129 Iowa 747, 106 N.W. 177; Frazee v. City of Cedar Rapids, 151 Iowa 251, 256, 131 N.W. 33; Russell v. Chicago, R. I. & P. R. Co., 160 Iowa 503, 141 N.W. 1077; Chariton Nat. Bank v. Whicher, 163 Iowa 571, 145 N.W. 299. The original petition covered all the matters referred to in the amendment, in a general way, and the amendment was but an amplification thereof, the matters pleaded being germane to the cause of action stated in the original petition.

II. The arrests and the prosecution grew out of a trouble arising between plaintiff and a number of his companions, and the railway company and its employees, over transportation by the company of the said parties as caretakers of live stock over its line of road to Chicago. Plaintiff and other men, 11 in number, residents of Marcus and Cleghorn, in Cherokee County, shipped, over defendant's line, some live stock from these respective towns to Chicago, and were given stock passes to accompany the stock. They were joined by other stock shippers on defendant's line before the train reached Fort Dodge, and the party amounted to 24 or 25 men, aside from the train crew, when the train reached the latter station. They were crowded into a single caboose, or way car, and some of them had to stand up while riding on the train. The train arrived at Fort Dodge at about 5 o'clock in the morning of December 17, 1911, and the men immediately went to a lunch counter for breakfast. The men endeavored to secure a second caboose, or way car, from the defendant company, and went to its yardmaster for that purpose. They were then directed to the train dispatcher, and he told them that they could not have another car. The stock train was then standing in the yard, and the men were advised as to the departure thereof; but the plaintiff and some 11 others neglected or refused to take it, because of the crowded condition of the way car. About this time, a passenger train came in on defendant's line, destined to Chicago, and due to leave Fort Dodge at 6:25 A. M. The plaintiff and his companions, with the implied assent of the brakeman of this train, entered the forward car of the train, which was a combination baggage and passenger car. The conductor of the train was not present at this time, but when he appeared, he was informed that the men were on the train expecting to ride on their stock contracts. The conductor then went to where the men were, and, according to one of the witnesses, the following occurred:

"We went in and sat there for a couple of minutes before the conductor came in; then he wanted to know if we were stockmen and if we had tickets. We told him we had no tickets, and he said we couldn't ride in that train; and Mr. Hobbs spoke up and said we had transportation, and the conductor replied that that kind of transportation didn't go on this train. He went to the rear end of the coach and went out for a little while, then came back and asked us if we had gotten tickets, and we replied we hadn't. He said if we didn't get tickets, he would go and get officers to put us off. In a few minutes, he came back with the officers, and stopped opposite Mr. Williams, and asked if he was one of the stockmen. He told him he was; then he told Mr. Williams to get off. Mr. Williams then said if he was going to put us off, to start down at the head, and he pointed down to me. Then he came to where I was and asked me if I was one of the stockmen, and I told him I was, and he told me to get out. I didn't move, and he took hold of me. As soon as he did that, I asked him to show me his authority as an officer, and he pulled back his coat and showed me his star. Then I got up and started out; so did Mr. Williams and most all the rest, and at this time Mr. Hobbs remarked that we had never refused to pay cash fare, and there were one or two others that said we would pay cash fare. Then the train dispatcher spoke up and said, 'That is all right; if the boys want to pay cash fare, let them go on.' Mr. Core and Gressley then turned to Joyce, the conductor, and asked him what they should do and he said, 'Put them off.' I was probably the second or third out."

The conductor said, on cross examination, in referring to this matter:

"Up to that time, I haven't asked or requested any of the other passengers upon the train for their tickets. I wasn't engaged in the business of collecting cash fares or tickets at the time I had this conversation with those Marcus people."

Defendants Core and Gressley, who are referred to in this and other testimony which we shall quote, were employed and paid by the railway company for their services, and were secured to take charge of the defendant company's depot yard and roundhouse in Fort Dodge, as special watchmen. They were sworn in as special policemen by the police judge of the city, and detailed to act as special officers for the Illinois Central Company. They received no pay from the city, and did not report to it or to the chief of police. After the conductor had told the men that they could not ride on his train, on the stock contracts, and that they would have to get off and get tickets, or he would get officers and put them off, he (the conductor) left the train, and soon appeared with the two policemen hitherto mentioned. The policemen mounted the car in which the men were seated, and immediately said: "You will have to get out of this car." One of the plaintiff's party said: "If we have to get out, you want to start at the...