Kansas & Texas Coal Co. v. Galloway

• Decision Date: 09 May 1903
• Citation: 74 S.W. 521
• Parties: KANSAS & TEXAS COAL CO. et al. v. GALLOWAY.
• Court: Arkansas Supreme Court

74 S.W. 521

KANSAS & TEXAS COAL CO. et al. v. GALLOWAY.

Supreme Court of Arkansas.

May 9, 1903.

Appeal from Circuit Court, Scott County; Styles T. Rowe, Judge.

Action by Gus Galloway against the Kansas & Texas Coal Company and another. Judgment for plaintiff, and defendants appeal. Reversed.

Hill & Brizzolara, for appellants. Robert A. Rowe, for appellee.

BUNN, C. J.

This is a suit for malicious prosecution, originating in the Greenwood district circuit court of Sebastian county, and tried, on a change of venue, in the Scott county circuit court, by a jury. Verdict and judgment in the sum of $500 in favor of the plaintiff, and the defendants duly and in due time appealed to this court.

The malicious prosecution complained of in the present suit arose from the following circumstances, according to the abstracts in the case: "There was a strike, commencing February 1, 1899, throughout this [Sebastian] county, which embraced the miners in the employment of the Kansas & Texas Coal Company at Huntington, in said county. The said coal company employed a great many negroes, presumably to fill the places of the strikers, some of whom it had shipped by car loads from other counties." We gather from the evidence and statements made in the progress of the trial in the court below that this strike was the occasion of much excitement and anxiety in the community, and on the 22d day of April, 1899, the Kansas & Texas Coal Company, being extensively engaged in operating its mines in the vicinity of the said town of Huntington, sued out in the United States Circuit Court of the Western District of Arkansas, at Ft. Smith, an order of injunction, whereby said court enjoined and restrained said striking miners from interfering in any manner whatsoever with the business of said coal company, from intimidating its employés or using force or violence or unlawful persuasion to induce them to leave the employment of said coal company, from deterring others from entering the service of the said company, and from doing any act to prevent said company and its managers and employés from exercising free control over its said business and its property there or elsewhere; and the plaintiff herein, with one Geo. Bunch and others, was made defendant in said injunction proceeding, served with process, and put under said order of injunction and restraint, and such injunction was in full force and effect when an encounter of considerable violence occurred in the said town of Huntington between the said Gus Galloway, Geo. Bunch, and McCowan, the town marshal, all alleged to be of the strikers, or in strong sympathy and close connection with them, on the one part, and one Albert Evans, an employé of the company, and one Battles, on the other part, as set forth in an affidavit of Joseph M. Hill, one of the attorneys of the company, made on the 5th of July, 1899, as part of a petition of the company for a warrant of arrest, to have the plaintiff brought before said court for violating said order of injunction on the occasion named, which was on the 3d day of July, 1899, and, leaving out mere formal parts, is as follows, to wit: "That Gus Galloway and Geo. Bunch, two of the defendants named in said complaint [for the injunction], and upon whom process had been duly served, did on the 3d day of July, 1899, intimidate, threaten, maltreat, and attempt to coerce said Albert Evans, one of the employés of the plaintiff, by beating, cursing, and abusing him, the said Albert Evans; that the object and purpose of such intimidation, coercion, and threats was to prevent the said Albert Evans [from] laboring for the plaintiff, and to injure him on account of the fact that he was employed by the plaintiff. Wherefore writ of attachment was prayed against the said Bunch and Galloway, that they be brought before the court, and there dealt with according to law." On the 7th July, 1899, another affidavit by the same party as attorney for the coal company was filed in said court, charging the plaintiff herein and others with the violation of said order of injunction on the 5th day of July, 1899, which said affidavit, after setting forth the petition or order of injunction made thereon, contained the recital and prayer, to wit: "That while said injunction was still in force and effect, and after service upon said defendants, to wit, on the 5th day of July, 1899, the said defendants, in furtherance of a conspiracy and combination to hinder the plaintiff and its officers and employés in the free and unhindered control of its business, did violate said injunction in the following manner, to wit: The said Geo. Bunch and Gus Galloway did direct and assist in the formation of a large number of persons in the town of Huntington, who avowed their intentions of going to the mine of the plaintiff [coal company] known as `Mine No. 53,' and then and there forcibly and violently eject the employés of the plaintiff therefrom, and cause said employés to cease working for plaintiff. That in furtherance of said combination and conspiracy in which the said George Bunch and Gus Galloway participated, sentinels were established along the various roads leading between the town of Huntington and said mine. No one was permitted to go to said mine except by the consent of said sentinels, and emissaries were sent to the employés of the company to unlawfully persuade them to leave the employment of the company; and, by carrying out said threatening combination and conspiracy, the said Geo. Bunch and Gus Galloway, in company with various and divers others, did intimidate and cause many of the employés of the company to leave its employ on account of fear of personal violence to them, the said employés, by reason of such threats made by said combination of persons. That said Geo. Bunch and Gus Galloway participated, aided, assisted, and abetted in all the acts and deeds of such combination and conspiracy existing in the town of Huntington on the 5th day of July, 1899." Prayer for attachment and arrest of said Gus Galloway and Geo. Bunch, and that they be dealt with according to law for contempt in violating the injunction of said court. Galloway was accordingly arrested on the warrant issued on the two affidavits on the 7th July, 1899, by the United States marshal of the district, and carried to Ft. Smith, and there, by the order of said court, was committed to the United States jail, where he was imprisoned six or seven days to await the investigation of the charges of contempt made against him in the affidavits aforesaid filed by the attorney of the said company as aforesaid; and on the 14th day of July, 1899, on the hearing of the evidence in the cause, he was fully discharged by said court. This arrest and imprisonment and subsequent discharge of the plaintiff, Gus Galloway, constitute the ground of this his suit for malicious prosecution against the said Kansas & Texas Coal Company and its manager, Bennett Brown, who answered the complaint, the first paragraph of which is a demurrer to the complaint; and in the other paragraphs they specifically deny each and every material allegation of the complaint, to which complaint are attached the warrant of arrest, the injunction of the court in full, and the judgment of discharge of the court in the contempt proceedings, and they are made exhibits thereto. Trial before a jury, verdict and judgment for plaintiff in the sum of $500 against the defendants, and they in due time and in due form appeal to this court.

In this kind of proceeding it devolves upon the plaintiff to show affirmatively that there was both malice and a want of probable cause on the part of the defendants in the prosecution of the contempt proceedings against the plaintiff in that suit. It is not the object of the investigation in this suit to determine the guilt or innocence of the defendant in the former or contempt proceedings, but solely to determine whether that proceeding was prosecuted by the defendants in this suit maliciously and without probable cause.

The first error complained of in this action was the trial court's exclusion of the testimony of the said Gus Galloway, offered by the defendants, to reproduce the testimony of Albert Evans as given in the contempt proceedings; the court holding that the testimony of Evans himself as to what he testified in the contempt proceedings alone is admissible for that purpose. This testimony of Evans was directly to the effect that on the occasion named in the first affidavit, on the 3d July, 1899, he (Evans) was set upon by McCowan, the town marshal, Bunch, and Galloway, by them called a "scab" and other opprobrious terms, and a pistol demanded of him, and that he denied having a pistol, and other things, the effect of which was to convict Galloway of a violation of the injunction, if believed, and thus to put a different face entirely upon the conduct and nature of the parties to that rencounter; said marshal and Galloway and Bunch claiming to have been in the discharge of official duty in attempting to arrest Evans for carrying a pistol, and the latter asseverating that he had no pistol when the alleged attempt to arrest him was made, but the pistol he had, and subsequently used on the occasion, he took from Bunch in the progress of the mêlée between them on the occasion. This evidence of Evans, who, it appears, was at the time of his trial in the State Penitentiary for assaulting the said Bunch on the occasion named, was of vital importance to the defense in this case, and so the question is solely as to the court's refusal to permit Galloway to testify as to what Evans testified in the contempt proceedings. The question was discussed in Burt v. Place, 4 Wend. 597 (Supreme Court, not Court of Appeals, of New York), as long ago as 1830, in which the court sustained the view of the trial court in this case. Upon this decision, Greenleaf, in his work on Evidence (17th Ed., vol. 2, § 457), cites with approval the...