Morgan v. Illinois Cent. R. Co

• Decision Date: 29 October 1906
• Docket Number: 16,216
• Citation: 42 So. 216,117 La. 671
• Court: Louisiana Supreme Court
• Parties: MORGAN v. ILLINOIS CENT. R. CO

42 So. 216

117 La. 671

MORGAN v. ILLINOIS CENT. R. CO

No. 16,216

Supreme Court of Louisiana

October 29, 1906

Appeal from Civil District Court, Parish of Orleans; Fred Durieve King, Judge.

Action by Thomas Morgan against the Illinois Central Railroad Company. Judgment for defendant, and plaintiff appeals. Affirmed.

Edward Alexander Parsons and Louis Randolph Hoover, for appellant.

Gustave Lemle and Hunter Collins Leake (J. M. Dickinson, of counsel) for appellee.

OPINION

BREAUX C.J.

This action was brought by plaintiff for $ 50,000 damages against the defendant company, on the ground that the company instigated and caused his arrest maliciously and without cause.

Plaintiff sets forth in his petition that he was humiliated and that he greatly suffered; that the arrest and the asserted cause were made public through the daily newspapers.

He also complains of the refusal of the defendant to own its mistake that the reparation he requested would, in some degree, at any rate, have blotted out the stain which reflects upon his good name; that he has been unable to obtain employment, and in consequence, he and his family were made to suffer by the arrest and unfounded charges.

The defense of the defendant company is that other workmen in its employ made a confession, implicating themselves and plaintiff as well as parties to the theft charged. The further ground of defense is urged that an affidavit was made against the plaintiff by two detectives, Stubbs and Feehan, of the city police force, and that this affidavit was not made at its request.

Having stated the grounds upon which plaintiff brought the suit, and upon which the defendant defends, we are next led to consider the facts of the case.

It appears that the plaintiff had been in the service of the defendant company as night watchman for about six years. On the night of July 22, 1905, he was arrested without warrant, and at the same time others of the accused were arrested in one of its yards on the same charge.

Plaintiff's contention at this point is that he was arrested by two agents of the defendant company. The defendant's evidence shows that the arrest was made by the officers of the police force.

In support of plaintiff's contention, plaintiff and the accused, Bartel, who was arrested at the same time, testified. On the other hand detective Stubbs of the city police force testified that they had not been arrested by the defendant's agents, but that he (Stubbs of the police force), placed plaintiff under arrest; that two of the railroad employes pointed out the plaintiff to him, and that he arrested him.

The crime which plaintiff and others named were charged with having committed consisted in breaking into defendant's freight cars, opening boxes therein containing goods, and carrying them away.

It seems that the company's officers had for some time suspected that goods were stolen from their cars whilst in its yards under guard of its watchmen in this city.

A number of times defendant had been called upon by shippers on their trains for goods not delivered. The goods had disappeared, although nothing showed that the cars had been broken into.

It was strongly suspected that the stealing was done by workmen of the company. Steps were taken to stop the perpetrators of the crime. The goods appropriated amounted to quite a number of thousand of dollars -- eight or nine.

It seems that it was by the merest chance that the company's agent, detailed to find the guilty parties, overheard two persons of the opposite sex talking about articles of merchandise which they evidently did not know had been stolen. This was an unintentional intimation which led to the recovery of some of the goods.

This incident, as published at the time, is referred to in passing.

Those in whose possession the goods were found made a confession. In two of the confessions, plaintiff was, in terms, implicated. A few days later one of the accused recanted his confession and recalled all that which he had set forth in his affidavit against the plaintiff. Another of the accused (Heaton), also made a confession. He did not refer to plaintiff, but he stated the particulars of the crime.

These confessions were brought to the attention of the attorney of the defendant company. He directed the employes of the company, by whom these written confessions were brought to him, to take them to the office of the inspector of police for his examination and action.

The inspector of police, after he had been spoken to, ordered the arrest of the parties implicated in the written confessions. At his instance the two employes of the defendant company who brought in the papers to him accompanied the police officers to point out the accused; together they repaired to the defendant's yards, and the police officers arrested plaintiff, as before stated.

After the arrest plaintiff was brought to the police station. The name of the accused was inscribed on the police book. He was then released on parol, and subsequently he furnished bond required.

In the course of a short time thereafter, detectives Stubbs and Feehan made an affidavit against plaintiff before the first city court of the city of New Orleans, which affidavit, detective Stubbs testified, was made at the instance of the trainmaster of the defendant company.

At another time he testified that he made the affidavit from information received and because of the confessions made by some of the accused.

The defendant company employed a special attorney who took charge of the prosecution before the city court, altered the affidavit, and made such changes as he deemed proper.

When the case was called for trial, the special attorney asked for a continuance; objection to the continuance was interposed by plaintiff's counsel. The court having ordered the trial to be proceeded with, the special attorney then stated that the Illinois Central Railroad Company had nothing against the plaintiff, and that he would consent to a nolle prosequi of the case. The case was abandoned.

Summers, one of the accused who implicated plaintiff, confessed on July 10, 1905.

This confession was reduced to writing by one of the railroad employes, and signed by Summers and placed in the hands of the inspector of police by two of the employes of the defendant.

On the 12th of July, plaintiff and the other persons implicated called upon Summers, and with him repaired to a notary's office, and there Summers declared that he had been induced to make the confession in question; that the confession was not true.

On July 23, 1903, Stevens, another of the accused, signed a lengthy confession in which he implicated plaintiff and said among other things, quoting:

"I have on a number of occasions talked with Bartels, T. Morgan, Feahney, and Butts, who were all employed as watchmen, about the stealing which was going on, and we had no fear whatever of them making any report of it, nor would we stop if they came upon us while we were committing robberies. They were fully aware of what was going on. This I am positive of from the conversations I have heard them have on the subject."

The testimony shows that plaintiff was watchman at shed 7. There was stealing in that shed; in fact there had been systematic stealing from different cars in defendant's yards.

Heaton, another of the accused who confessed, did not implicate plaintiff, but he stated that there was stealing done on the levee where we understand the plaintiff some time stood watch.

Lehon who seems to have followed up the case closely for defendant from the first, testified that Stevens confessed orally on...