Kansas & Texas Coal Co. v. Galloway

• Decision Date: 09 May 1903
• Citation: 74 S.W. 521,71 Ark. 351
• Parties: KANSAS & TEXAS COAL COMPANY v. GALLOWAY
• Court: Arkansas Supreme Court

74 S.W. 521

71 Ark. 351

KANSAS & TEXAS COAL COMPANY v. GALLOWAY

Supreme Court of Arkansas

May 9, 1903

Appeal from Scott Circuit Court, STYLES T. ROWE, Judge.

Reversed.

Judgment reversed and cause remanded for new trial.

Hill & Brizzolara, for appellant.

The court erred in excluding the evidence offered by appellant. 4 Wend. 591; 4 Cush. 217; Newell, Mal. Pros. 303; 3 Esp. 7; 63 Ia. 529. The court adopted the wrong definition of probable cause in the third, sixth and seventh instructions. 32 Ark 166; 32 Ark. 605; Ib. 763; 33 Ark. 317; 63 Ark. 387; 64 S.W 219; 41 F. 898, 910. Diligence is not the test. 24 Ill.App 289; 58 Mo.App. 37; 33 Me. 331; 109 Cal. 365; 123 Cal. 26; 69 Ia. 562; 95 F. 926; Newell, Mal Pros. 319. The court also erred in stating the rule as to advice of counsel as a justification and as bearing on the question of malice. 1 Am. & Eng. Enc. Law (2d ed.) 899; 98 U.S. 187; 94 F. 52; Cooley Torts, * 183; 19 Am. & Eng. Enc. Law (2d ed.) 685-6-7; 77 Ill. 164; Ib. 172; 33 N.W. 334. No evidence shows any malice or want of probable cause. 32 Ark. 773; Newell, Mal. Pros. 277, 278; 19 Am. & Eng. Enc. Law, 669-671.

Robert A. Rowe, for appellee.

Advice of counsel is no justification, unless given upon a full and fair understanding of the facts. 23 Neb. 511; 50 Mo. 83; 37 Md. 282. Consultation and obtaining the advice of an attorney who is not distinterested and unbiased is not sufficient to constitute a defense. Newell, Mal. Pros. § 4, p. 314; 71 Me. 555; 26 Am. Rep. 353. As to definition of "malice" necessary to be proved, see: 14 Am. & Eng. Enc. Law, 22; Newell, Mal. Pros. §§ 2-10. It was the duty of Brown to use proper diligence to ascertain the true state of facts before proceeding to have appellee arrested. 14 Am. & Eng. Enc. Law 55; 81 Ala. 220; 71 Ill. 475; 62 Ill. 107; 15 Mo.App. 373; 80 Ala. 382; 23 Neb. 511. He is charged with actual knowledge of all facts he could have ascertained by reasonable diligence. 14 Am. & Eng. Enc. Law 55; 38 Mo. 13; 50 Mo. 83; 37 Md. 282; 59 Mo. 557; 50 How. Pr. 105; 26 Ill. 259; Newell, Mal. Pros. 318, 319, 320-1-2. The opinion rendered by the district judge is not a judgment. 12 Am. & Eng. Enc. Law, 59; And. L. Dict. 355; 16 How. 287; 6 Wheat. 399; Freeman, Judg. § 2. There was no error in the exclusion of evidence of testimony adduced at the alleged malicious prosecution 2 Greenl. Ev. § 457; 4 Wend. 591; 3 Oh. 52; 14 Am. & Eng. Enc. Law, 58; 83 Ill. 291. The instructions as to probable cause were correct. 14 Am. & Eng. Enc. Law, 24, 26, 27; 116 Ind. 146; 60 Miss. 916; 58 Ia. 317; 81 Ala. 220; 64 Tex. 25; 4 Dana, 120; 55 Ind. 461; 82 Ind. 421, 42 Am. Rep. 505; 71 Ill. 475; 62 Ill. 107; 15 Mo.App. 373; Newell, Mal. Pros. 274, 319, 590. The instruction as to advice of counsel was also correct. Newell, Mal. Pros. 4, 5, 78; 22 Mich. 300; 71 Ill. 475; 20 Ohio 119; 25 Pa.St. 275; 59 Mo. 557; 36 N.W. 775; 26 Ill. 259; 81 Ill. 478; 59 Ind. 500; 29 N.W. 743; 49 Mich. 286; 7 Tex. 603; 58 Am. Dec. 85; 11 Pa.St. 81; 36 Conn. 56; 50 Me. 308; 55 Barb. 194; 10 Minn. 350; 12 Pick. 324; 57 Ia. 107; 39 Minn. 107; 35 F. 466; 116 Ind. 146; 145 Mass. 314; 17 Att. 466; 69 Ia. 714; 18 W.Va. 1; 76 Mo. 660; 16 Minn. 182; 39 Mich. 222; 22 F. 217; 15 La.Ann. 672.

BUNN, C. J. WOOD, J., concurs in the judgment.

OPINION

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 carloads 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 Fort 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 employees, using force or violence or unlawful persuasion to induce them to leave the employment of said coal company; from deterring others from entering the services of the said company, and from doing any act to prevent said company and its managers and employees from exercising free control over its said business and its property there or elsewhere; and the plaintiff herein, with one George Bunch and others, was made defendant in said injunction proceeding, served with process, and was 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, George 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 employee 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 day 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 George 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 employes 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 of 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 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 employees in the free and unhindered control of its business, did violate said injunction in the following manner, to-wit, the said George 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 employees of the plaintiff therefrom, and cause said employees 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 employees 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 George Bunch and Gus Galloway, in company with various and divers others, did intimidate and cause many of the employees of the company to leave its employ on account of fear of personal violence to them, the said employees, by reason of such threats made by said combination of persons. That said George 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 George 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 of July, 1899, by the United States marshal of the district, and carried to Fort 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...