Humphreys v. St. Louis-San Francisco Ry. Co.

• Decision Date: 31 August 1926
• Docket Number: No. 4044.,4044.
• Citation: 286 S.W. 738
• Parties: HUMPHREYS v. ST. LOUIS-SAN FRANCISCO RY. CO.
• Court: Missouri Court of Appeals

286 S.W. 738

HUMPHREYS v. ST. LOUIS-SAN FRANCISCO RY. CO.

No. 4044.

Springfield Court of Appeals. Missouri.

August 31, 1926.

Appeal from Circuit Court, Lawrence County; Charles L. Henson, Judge.

Action for false arrest by John G. Humphreys against the St. Louis-San Francixco Railway Company. Judgment for plaintiff, and defendant appeals. Reversed and remanded.

E. T. Miller, of St. Louis, James E. Sater, of Monett, and. Mann & Mann, of Springfield, for appellant.

E. J. McNatt, of Aurora, and Hamlin & Hamlin and C. W. Hamlin, all of Springfield, for respondent.

COX, P. J.

Action for damages for false arrest. Plaintiff recovered, and defendant appealed.

Plaintiff alleges in his petition that he purchased a ticket at Springfield, Mo., for Aurora, Mo., and boarded one of defendant's passenger trains at Springfield for transportation to Aurora and was a passenger on said train; that some time after' leaving Springfield an explosion occurred on the train, and plaintiff's left hand was so badly torn and lacerated that amputation was made necessary; that immediately following the explosion the servants of defendant wrongfully and without sufficient cause or authority arrested plaintiff and restrained him of his liberty. There are other allegations giving details of the acts and conduct of defendant's agents and servants, but the above covers the substantial allegations charging unlawful arrest. The answer was a general denial.

The first assignment of error is that defendant's demurrer to plaintiff's testimony should have been sustained. Plaintiff's case rested almost solely upon his own testimony. The testimony of witnesses for defendant sharply contradicted plaintiff on most of the issues of fact, but in passing upon a demurrer to the testimony we are confined to plaintiff's evidence. That in substance is as follows: That the train on which plaintiff was riding was very much crowded, and he could not secure a seat. That he was standing in the vestibule between the dining car and another car and was, standing with his heels against a linen basket in which was table linen with a paper over the top. It was a cold day, and he had on his overcoat and gloves. While standing in that position a man passed through, and as he passed plaintiff his foot struck one of plaintiff's feet. This man had a cigar in his mouth and the ashes of that struck plaintiff in the face. He brushed against plaintiff and almost threw him back. This man went on, and about the time he got to the door an explosion occurred and hurt plaintiff's hand. He sank down on the floor. Plaintiff said he had nothing in his hand and had no knowledge as to what it was that exploded and how it came about. He knew there was a strike on the railroad and several explosions of dynamite had taken place at different places. The first one to come to him after the explosion was a lady, whom other evidence showed was a trained nurse, who was a passenger on the train. Next after her came the conductor, then several others. They removed his overcoat and bandaged his hand with something. The conductor asked what was the matter, and he replied that he did not know, but that' he had been hurt. The conductor then asked him if he had a gun and put his hand down in plaintiff's pocket. Plaintiff answered, "No." The conductor then searched him, and plaintiff did not object to that. He told the conductor to go ahead and search him. The conductor found no weapon. After a short time the conductor said he would have to stop at Billings and put plaintiff off there. The other evidence showed that Billings was not a regular stopping place for this train. When told by the conductor that he would have to put him off at Billings plaintiff said that he wanted to go to Aurora. Plaintiff testified that he did not know any one at Billings but had friends at Aurora and he had bought a ticket to that place. The conductor replied that he would put plaintiff off at Billings. When the train stopped the conductor led him down the steps, and when they reached the platform the conductor inquired if there was an officer there. A man walked up and said he was an officer. The conductor held a short whispered conversation with the officer which plaintiff could not understand. The officer then walked up in front of plaintiff, took hold of his right arm which the conductor had released, and said he would take charge of plaintiff, and they walked off down the platform.

When they started plaintiff asked the officer who he was, and he answered that, he was the town marshal and constable. One of the witnesses for defendant testified that he carried plaintiff's overcoat and was standing on the platform near the plaintiff and conductor, and the officer asked him for plaintiff's overcoat. This witness asked the party who he was, and he replied, "I am the law." This witness then handed the overcoat to the officer. The marshal took plaintiff up to Dr. Fred Brown's office. He remained there about two hours. Dr. Fred Brown was not in the office when they entered, but was out of town. Another Dr. Brown, not in active practice, gave plaintiff some morphine to relieve his pain. The marshal or some one, fearing that Dr. Fred Brown might not return, phoned for Dr. Wade, at Clever, Mo., and he came. Dr. Fred Brown, who was out, returned about the time that Dr. Wade arrived. They undressed plaintiff's hand and gave it first aid treatment, poured some medicine on it, and wrapped it up and said they could not do anything for it. While in the doctor's office waiting for the doctor to come the marshal went out for a little while, and when he went out told the elder Dr. Brown, who was there, to take charge of plaintiff until he got back. When the marshal got back, he said he had orders to take plaintiff to Springfield. While there in the office, plaintiff phoned to two friends at Springfield to meet him at the depot when he should arrive there. There was some conversation there about his going to Springfield in an automobile, but it was then near the time for a train to arrive, and they decided that he would go on the train. The marshal took him to the train, but he bought his own ticket to Springfield. When the train arrived at Billings, two men got off and asked the marshal if plaintiff was the man that got hurt, and, on being informed that he was, one of these men said, "We will take charge of him." They took their places, one on each side of plaintiff, and they and plaintiff got on the train, and they turned two seats together and rode with plaintiff to Springfield. On the, way these men questioned plaintiff about what had happened and where he was going. He told them he wanted to go to the Springfield Hospital. When they got to Springfield, these men got off the train with plaintiff and some ten or twelve other men walked up to them. Plaintiff called for his friends that he had phoned to from Billings, and they were on the depot platform but did not hear his call. He then stated that he said to the crowd that he wanted to go to the Springfield Hospital. They (just who does not clearly appear) said, "We will take you up here." Plaintiff said, "Up where?" They said, "Up to the claim agent's office." He was then taken upstairs over the depot to the claim agent's office. The two men who accompanied plaintiff on the train from Billings to Springfield were a part of the ten or twelve men there that took him up to the claim agent's office. They sat him down by a table and laid his arm up on the table. It was bleeding badly, and they took the bandage off and put new bandage on. They then began to ask him questions about how the explosion took place, and he told them he did not know. Mr. Allender, whom plaintiff described as the chief detective of the defendant, did most of the questioning. Plaintiff's language in describing part of what Mr. Allender did and said is:

"He asked me about the pin that I had. It was a pin with a white trawl in it; and I said it was a Masonic pin, and he said, `No; the white thing in the center of it?' I said, `It is a white trawl'; and he said, `No, we have got your number; I know what you are; you are an I. W. W. or a Bolsheviki; you had just as well come clean and tell us about it, because we know what you are.'"

When asked if he made any request while he was being questioned, he said:

"Well, I was calling for a doctor. I wanted a doctor. I was suffering, and I told them I was suffering. I could not hardly answer the questions."

Plaintiff asked that they call Mr. Tollerton and Mr. Nash, but they did not. Asked if he was seached while there in the claim agent's office, he answered:

"Yes, sir; they went through my pockets and taken what I had. They took a check book and my Masonic Monitor and a memorandum book I carried and my pocketbook. I was kept there about 40 minutes."

When asked why he went up to the claim agent's office, he said:

"I had nothing else to do; they told me to go up there; these officers that brought me over there told me that they would take me up there, and I had nothing else to do but to go up."

After the questioning of the plaintiff in the claim agent's office was completed, he was taken to the Frisco Hospital and his hand amputated. Plaintiff testified that he thought that he was under arrest at the time he was in the claim agent's office. The articles taken from plaintiff's pockets were returned to him at the hospital.

There was some other evidence offered by plaintiff, but we think the foregoing a sufficient statement of plaintiff's evidence to enable us to pass on the question of whether he made a case to go to the jury.

The conductor, the marshal at Billings, the two men who rode with plaintiff from Billings to Springfield, Mr. Allender and others present in the claim agent's office, all flatly contradicted plaintiff on all the essential parts of his testimony tending to show an intent on their part to arrest the plaintiff or in any way restrain him of...