Milton v. Missouri Pac. Ry. Co.

• Decision Date: 24 January 1906
• Citation: 193 Mo. 46,91 S.W. 949
• Parties: MILTON v. MISSOURI PAC. RY. CO.
• Court: Missouri Supreme Court

91 S.W. 949

193 Mo. 46

MILTON v. MISSOURI PAC. RY. CO.

Supreme Court of Missouri.

January 24, 1906.

FALSE IMPRISONMENT — LIABILITY OF PRINCIPAL — AUTHORITY OF AGENT.

Where, after one of defendant's railroad trains had been held up, defendant's general superintendent directed the president of a corporation engaged in the detective business to find out who committed the robbery and report, defendant was not liable for false imprisonment resulting from an arrest of plaintiff participated in by one of the employés of the detective agency; such arrest not being within the scope of the authority conferred on the detective agency.

Valliant, J., dissenting.

In Banc. Appeal from Circuit Court, Clay County; E. J. Broaddus, Judge.

Action by Harry E. Milton against the Missouri Pacific Railway Company. From a judgment for plaintiff, defendant appeals. Reversed.

Elijah Robinson, for appellant. Frank P. Walsh, Wm. H. Wallace, and T. B. Wallace, for respondent.

MARSHALL, J.

This is an action for false imprisonment. The plaintiff recovered a judgment for $10,000 in the circuit court of Clay county, and the defendant appealed.

The petition alleges that on the 4th of October, 1898, the defendant, acting through its agents and servants, and through certain detectives and officers from Missouri and Kansas, did, without any warrant or other legal process, and without probable cause, falsely, wantonly, maliciously, illegally, and unlawfully imprison plaintiff in a certain jail in the western part of Kansas City, Mo., did keep him there for about four days and nights, and denied him access to his relatives and friends and the benefit of counsel, for which the plaintiff claimed $15,000 compensatory damages and $15,000 punitive damages. The answer is a general denial.

The case-made is this: On the 23d of September, 1898, one of the defendant's passenger trains was held up and robbed near Leeds, in the southern part of Kansas City. A day or two afterwards H. G. Clark, the defendant's general superintendent, sent for Thomas Furlong, the president of the Furlong Secret Service Company, a corporation engaged in the detective business, and when Furlong arrived Clark said to him: "I suppose you have read and heard about this train robbery up near Kansas City?" He said: "Yes, sir." Clark then said: "I want you to go up there and find out who committed this robbery, and report." Furlong states the matter in this way: "Mr. Clark said a train had been held up at Leeds the night before, and that he wished that I would go up there and ascertain the facts pertaining to the robbery, if I could, as to who the parties were that held up the train." The foregoing is all the evidence in the case as to the employment of Furlong by the defendant, and that evidence was adduced by the plaintiff. Accordingly Furlong went to Kansas City, and also had two of his employés, Dickson and Harbaugh, to go there also. Prior to Furlong's reaching Kansas City, John Hays, the chief of the police department at that city, with his detective force, had been investigating the matter, and had obtained information that convinced them that one Lowe was implicated therein, but they had been unable to locate him. After Harbaugh's arrival, he succeeded in finding him, and he was arrested by the police department of Kansas City, and Lowe confessed to having been interested in the hold-up, and stated the names of other persons who acted with him, and said that one of the parties told him that his friend Harry (no surname is disclosed, and Lowe disclaimed knowledge of the same) would get the buggy in which they would ride to the place where the hold-up was to occur. Furlong instructed Harbaugh to ascertain any facts and any information that he could that would lead to the discovery of the robbers, and to act in connection with Chief Hays, and to report to Chief Hays, and Chief Hays detailed Harbaugh to work with three of the Kansas City detectives, Sanderson, Bryant, and Keshlear, on the matter. Thereafter Harbaugh continued so to operate with the local detectives. There were other detectives representing the express company also working on the case. Furlong did not remain long in Kansas City. From information obtained by Hays, he concluded that the plaintiff was the person referred to as Harry, and accordingly reported to Mastin, the prosecuting attorney of the county, and he advised him to send over to Kansas City, Kan., where the plaintiff was working as a switchman in the yards of the Chicago & Great Western Railway Company, and ask him to come over to Kansas City, Mo., and, if he refused, to ask for the assistance of the police department of Kansas City, Kan., and have him (the plaintiff) locked up over there, and to send the persons who claimed to be able to identify "Harry" to see him. Accordingly Harbaugh, Bryant, Keshlear, and Sanderson went over to the said yards, and Sanderson, with the assistance of one Addison, who was connected with the police department of Kansas City, Kan., arrested the plaintiff, and Sanderson took him to the Mulberry Street Police Station in Kansas City. Harbaugh, Sanderson, and Addison testified that Harbaugh had nothing to do with the arrest or subsequent confinement, while, on the other hand, other witnesses, who were present, testified that Harbaugh participated in the arrest. After Sanderson had taken the plaintiff to Kansas City, Mo., Harbaugh and Addison went to the house of the plaintiff's sister, Mrs. Hodgins, and without her consent, searched the room in the house where the plaintiff had been staying, and took a hat, a necktie, and a collar, being the property of the plaintiff, after she had refused to sell them to them for $5, and told her the plaintiff would not be home that night for they had him at the police station where they wanted him. Furlong testified that his company had no authority to make arrests and no police power, and that he gave Harbaugh no instructions as to participating in the arrest of any person in this particular case, but that Harbaugh had general instructions not to participate in arrests. While the plaintiff was in prison he was compelled to put on the hat, necktie, and collar, aforesaid, and to submit to the inspection of various persons to see whether he could be identified as the "Harry" who got the buggy for the robbers. During those inspections Harbaugh was present and participated therein. None of the persons who had called to identify him were able to say that he was the "Harry" referred to. So, after being held under arrest for four days and nights, the plaintiff was discharged and went back to work with the railroad aforesaid.

At the close of the whole case the defendant demurred to the evidence, the court overruled the demurrer, and the defendant excepted, and now assigns that ruling of the court as the chief error relied on.

The chief contention of the defendant is that the plaintiff failed to make out a prima facie case. The gist of the contention is that the employment of Furlong by the defendant's general superintendent conferred no authority upon Furlong or any of his agents to arrest the plaintiff or to participate in any such arrest, nor was such an arrest within the scope of the employment of Furlong. Reduced to its last analysis, this case must be solved upon the determination of the proposition whether authority conferred by a principal upon an agent to ascertain certain facts and to report to the principal makes the principal liable for the act of the agent in arresting a third person for the purpose of ascertaining whether he was concerned in the robbery under investigation. There is very little difference between counsel as to the general rules of law bearing upon the question under consideration.

The plaintiff cites a great number of cases but relies principally upon Garretzen v. Duenckel, 50 Mo. 104, 11 Am. Rep. 405. In that case the defendant kept a gun store and had a clerk to assist him in selling firearms and ammunition. He had instructed the clerk never to load a gun. A customer went to the store to buy a gun and the clerk showed him a Henry rifle. The customer requested the clerk to load it so that he could see how it worked. The clerk at first refused, stating that it was against orders to load firearms in the store. The customer refused to buy unless he could see how it was loaded. Thereupon the clerk undertook to load the gun. It was discharged, and the plaintiff, who was sitting at a window on the opposite side of the street, was shot. This court, per Wagner, J., stated the general rule of law as follows: "The universally recognized rule is that the principal is civilly liable for the neglect, fraud, or other wrongful act of his agent in the course of his employment, though the principal did not authorize the specific act; but the liability is only for acts committed in the course of the agent's employment. A master is not responsible for an act or omission of his servants which is not connected with the business in which they serve him, though in general he is responsible for the manner in which they execute his orders, and for...