Knight v. International & G.N. Ry. Co.

• Citation: 61 F. 87
• Decision Date: 10 April 1894
• Docket Number: 116.
• Parties: KNIGHT v. INTERNATIONAL & G.N. RY. CO. et al.
• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)

61 F. 87

KNIGHT v. INTERNATIONAL & G.N. RY. CO. et al.

No. 116.

United States Court of Appeals, Fifth Circuit.

April 10, 1894

Charles C. Leverett, for plaintiff in error.

Baker Botts, Baker & Lovett, James Hagerman, and Farrar, Jonas &amp Kruttschnitt, for defendants in error.

Before PARDEE and McCORMICK, Circuit Judges.

PARDEE Circuit Judge.

The facts of this case appear to be that on January 19, 1885, in the nighttime, Robert Frazier, a conductor in charge of a passenger train of the International & Great Northern Railway Company, was murdered in Smith county, Tex., near Overton, in Rusk county, Tex. At Overton two men got on the forward end of the baggage car. One Hamp Riley, the porter of the train saw them getting on, and went forward, and ordered them off. They each drew pistols, and refused to get off, whereupon Riley went back, and informed Ed. C. Powers, a brakeman. Both Riley and Powers then went forward to where the men were, and told them they would have to get off. The men refused to do so, pulled weapons, and threatened to shoot, whereupon Robert Frazier, the conductor, was informed, who then opened the door of the baggage car and stepped out on the platform where the two men were. The latter opened fire, shooting Frazier who fell on the platform, and thence off into a ditch, dying of his wounds the next day. At the time of the shooting Powers was standing in the baggage car, just back of Frazier and he received bullet wounds which, at the time, were considered fatal, but from which he subsequently recovered. Thomas Furlong, a special agent of the Missouri Pacific Railway Company, proceeded to the scene of the murder, and learning that suspicion strongly pointed to John Knight and John Price, who, besides, were more or less identified by the porter, Hamp Riley, went to Tyler, Smith county, Tex., and procured from the judge of the county court of that county a warrant for the arrest of Price and Knight, which las placed in the hands of one Clinkscales, sheriff of Smith county, for service. Clinkscales, with one regular deputy and Phil Wagner, M. McCabe, and Furlong, employes of the railroad company, whom he deputized, went to Overton, Rusk county, Tex., and arrested Price and Knight, and took them thence to Ft. Worth, Tex., (where Powers was in the hospital), for further identification. Powers identified both Price and Knight as the men who shot Frazier and himself. After the identification by Powers, both Rice and Knight were carried to Smith county, and lodged in jail. Both were subsequently indicted for the murder of Frazier by the grand jury of Smith county. Price died before the trial. The railroad companies employed counsel to assist in the prosecution of Knight. Knight was tried on the indictment, and by a jury was found guilty, and was convicted of murder in the second degree; his punishment being fixed by the jury at 10 years in the penitentiary. Thereafter the court set aside the verdict, for a reason not apparent of record, and subsequently a nolle prosequi was entered in his case. After the end of the case in the court of Smith county, Knight instituted suit in the district court of Rusk county, Tex., against the International & Great Northern Railway Company, a corporation under the laws of the state of Texas, and the Missouri Pacific Railway Company, a corporation under the laws of the state of Missouri, for damages for false imprisonment and malicious prosecution in the gross sum of $75,000. Exactly when the said suit was instituted the record does not show. On the 29th of June, 1889, the Missouri Pacific Railway Company filed a petition in the district court of Rusk county to remove the said cause to the circuit court of the United States for the eastern district of Texas on the ground of prejudice and local influence, and on the same day filed in the circuit court for the eastern district of Texas a petition, affidavit, and bond to the same purport. Thereafter, on the 5th day of July, 1889, the state court, by order, directed the removal of the case, and the transcript was accordingly filed in the circuit court. On the 28th of the February following, the plaintiff made a motion in the circuit court to remand the said cause on various grounds, which motion was subsequently amended January 11, 1892, after the lapse of several terms, during which the case was continued, so as to show the following reasons: (1) That the petition for removal is unsupported by any proof that there exists in Rusk county, Tex., prejudice or local influence, and because the existence of prejudice and local influence is not sufficiently shown. (2) Because the record shows that this is not a suit wholly between citizens of different states. (3) Because the petition fails to show the citizenship of all the parties to the suit. (4) Because the affidavit in support of the petition for removal does not appear to have been made by authority. (5) Because the record shows a suit wherein the two defendants, the Missouri Pacific Railway Company and the International & Great Northern Railway Company, are sued jointly, and there is no separate controversy between citizens of different states. This motion to remand was overruled on January 11, 1892. Thereafter the case was put at issue, and tried in the circuit court. The amended original petition of the plaintiff sets forth his case in detail, therein alleging the facts hereinbefore recited; charging that the affidavit on which he was arrested and held was false; that the arrest was willful, malicious, and oppressive, and wholly without probable cause, and was illegal, and wholly without warrant of law, and was a wanton disregard of plaintiff's rights; that the imprisonment was illegal, and wholly without warrant of law, and wholly without probable cause, and made with malicious intent to vex, harass, mortify, and humiliate the plaintiff, and all of which the defendants well knew, to his damage, for which he claims vindictive damages in the sum of $25,000. In the second cause of action, which was for $50,000, for malicious pro...