Polk v. M.-K.-T. Railroad Co.

• Decision Date: 10 September 1940
• Docket Number: No. 36954.,36954.
• Citation: 142 S.W.2d 1061
• Parties: W.G. POLK v. MISSOURI-KANSAS-TEXAS RAILROAD COMPANY, a Corporation, Appellant.
• Court: Missouri Supreme Court

142 S.W.2d 1061

W.G. POLK v. MISSOURI-KANSAS-TEXAS RAILROAD COMPANY, a Corporation, Appellant.

No. 36954.

Supreme Court of Missouri.

Division Two, September 10, 1940.^*

Appeal from Cass Circuit Court. — Hon. Leslie A. Bruce, Judge.

REVERSED AND REMANDED.

Carl S. Hoffman and Montgomery, Martin & Montgomery for appellant.

(1) The court erred in admitting in evidence plaintiff's Exhibit 16, over defendant's objections and exceptions, which exhibit was the service letter issued to the plaintiff at the time of his discharge by the defendant. Such evidence was not competent, relevant or material to any issues involved in the case. The letter had absolutely no connection with plaintiff's prosecution. The introduction of this exhibit raised a purely collateral issue calculated to inflame and prejudice the jury against the defendant and served to distract their attention from the true issues upon which their decision should turn. Ellis v. Met. St. Ry. Co., 234 Mo. 657, 138 S.W. 23; Cantwell v. Johnson, 236 Mo. 557, 139 S.W. 365; Ritter v. First Natl. Bank of Springfield, 87 Mo. 574. (2) Error was permitted by the court in permitting plaintiff and his witnesses, Howard Dietrich, Payne Ratner, Jack Ringo, G.P. Norton and W.G. Polk, Jr., to testify, over defendant's objections and exceptions, that they had been refused permission to carry out visibility tests in the defendant's yard on an occasion in October of 1933. 22 C.J. 158; Engel v. United Traction Co., 203 N.Y. 221, 96 N.E. 731; Provencher v. Moore, 105 Me. 89, 72 Atl. 880. Prejudicial error was committed by the court in allowing its collateral circumstance, which was without probative force, to be continually flaunted before the jury. (3) Under the circumstances in this case an award of $7500 as punitive damages was and is excessive. State ex rel. A., T. & S.F. Ry. Co. v. Ellison, 268 Mo. 225, 186 S.W. 1075; Sperry v. Hurd, 267 Mo. 642, 185 S.W. 170; Randol v. Kline's, Inc., 330 Mo. 343, 49 S.W. (2d) 112; Newport v. Montgomery Ward & Co., 127 S.W. (2d) 687.

Clarence C. Chilcott, Payne H. Ratner, Crouch & Crouch and Will H. Hargus for respondent.

(1) The court properly admitted plaintiff's Exhibit 16, being the service letter discharging plaintiff from defendant's employment because such evidence was competent to prove: The original and continued malice of appellant and its chief officer. 1 Wigmore (2 Ed.), secs. 395, 396, pp. 725-729; Secs. 21514, 21515, 21516, 21520, 21521, 21523, R.S. of Kansas, 1923; 1 Wigmore (2 Ed.), secs. 403, 404, 405, 406, pp. 742-747; 22 C.J., sec. 108, pp. 173, 174; 38 C.J., 492; Waddell v. Krause, 241 S.W. 967; Finley v. St. Louis Ref. Co., 13 S.W. 88; Randol v. Klines, Inc., 18 S.W. (2d) 502, 86 A.L.R. 1298, 1299; Gribble v. Pioneer Press Co., 34 Minn. 342, 25 N.W. 710; Scovill v. Glasner, 79 Mo. 456; Christian v. Hanna, 58 Mo. App. 48; Kennedy v. Holladay, 25 Mo. App. 512; Pandjiris v. Hartman, 94 S.W. 270, 196 Mo. 539; Vansickle v. Brown, 68 Mo. 627; Stubbs v. Mulholland, 67 S.W. (2d) 650; Irons v. Am. Ry. Express Co., 300 S.W. 292; Foster v. C., B. & Q., 14 S.W. (2d) 561; Kane v. Oehler, 205 Pac. 245; Verdi v. Donahue, 99 Atl. 1043; Waters v. W.C. St. Ry. Co., 101 Ill. App. 273; Connor v. Timothy, 43 Ariz. 518; Bradford v. Lawrence, 94 So. 105; Brown v. Martin, 96 S.E. 642; Goodman v. Klein, 104 S.E. 729; Holden v. Merritt, 92 Iowa, 711; Clapp v. Lahood, 254 Pac. 867; Monske v. Klee, 221 Pac. 152; Marks v. Hastings, 101 Ala. 13, 49 A.L.R. 266; Thurston v. Wright, 43 N.W. 862; Severns v. Brainerd, 63 N.W. 478; Taylor v. Huff, 41 S.E. 874; Bitting v. Ten Eyck, 82 Ind. 423; Cheek v. Prudential Ins. Co., 192 S.W. 393; Hall v. Frisco, 28 S.W. (2d) 691; Lyons v. St. Joseph B. Ry. Co., 84 S.W. (2d) 933; State ex rel. St. Joseph Belt Ry. Co. v. Shain, 108 S.W. (2d) 351; Walker v. St. Joseph B. Ry. Co., 102 S.W. (2d) 724. The ratification of the chief officer of appellant of the acts of the Baxleys in arresting respondent and their continued prosecution of him. Alexander v. Emmke, 15 S.W. (2d) 871; Ruppel v. Clayes, 72 S.W. (2d) 836. That it bore upon the question of actual damages to respondent because of the grief, humiliation, oppression, etc., suffered by him. Lyons v. St. Joseph Belt Ry. Co., 84 S.W. (2d) 933, aff. 108 S.W. (2d) 944; Foley v. Union House F. Co., 60 S.W. (2d) 729; 38 C.J. 446; Cheek v. Prudential Ins. Co., 192 S.W. 387; Walker v. St. Joseph Belt Ry. Co., 102 S.W. (2d) 718; Hall v. Frisco, 28 S.W. (2d) 687; Wheeler v. Hanson, 37 N.E. 386; Black v. Canadian Pac. Ry., 230 Fed. 245; Mex. Cent. Railroad Co. v. Gehr, 66 Ill. App. 193. That it bore directly upon the question of punitive damages. 17 C.J. 1041; 8 R.C.L. 651; Randol v. Klines, Inc., 49 S.W. (2d) 119; State v. Pfeifer, 183 S.W. 338; Maloney v. United Rys. Co., 237 S.W. 509; Ruppel v. Clayes, 72 S.W. (2d) 835; Moore v. St. Joseph, G. & I. Ry. Co., 186 S.W. 1037; Gazzell v. Schofield, 8 S.W. (2d) 580. (2) The court did not err in admitting testimony of appellant's refusal to permit respondent to make an experiment, test and inspection in the yards of appellant. Griggs v. K.C. Ry. Co., 228 S.W. 509; 22 C.J. 111, 124; 1 Jones Commentaries on Evidence (2 Ed.), secs. 83, 84, pp. 142, 145; Bryant v. Stillwell, 24 Pa. 314; 38 C.J. 492; Fagnan v. Knox, 40 N.Y. Supp. 41, aff. 66 N.Y. 531; Powell v. Union Pac., 164 S.W. 636; Rice v. J.C.B. & T. Co., 216 S.W. 752; Beckman v. Raines, 243 S.W. 193; Wall v. Lemons, 51 S.W. (2d) 199; 22 C.J. 764.

BOHLING, C.

W.G. Polk instituted an action for malicious prosecution against the Missouri-Kansas-Texas Railroad Company, a corporation, and recovered a judgment of $15,000. This is defendant's second appeal. As a sufficiently detailed statement for general purposes may be found in the opinion on first appeal (consult 341 Mo. l.c. 1217-1219, 111 S.W. (2d) l.c. 139-141), we mention only such facts as we deem necessary for the disposition of this review, which turns on the admissibility of certain evidence.

Merchandise had been taken from one of defendant's cars in its Parsons, Kansas, switchyard on several occasions. Defendant's special agents watched the cars and plaintiff, employed as an extra switchman by defendant, was arrested on the night of August 13, 1933, and charged with the offense of burglary under the Kansas statutes. After being bound over to the District Court, the Prosecuting Attorney refused to prosecute and plaintiff was discharged, this entry appearing of record as of February 22, 1934.

Plaintiff testified that the latter part of October or the first part of November, 1933, the County Attorney told him the case was to be dismissed; that he desired to resume his work with defendant; that he informed his superintendent, Mr. Little, he could convince him, if afforded an opportunity on a night when the conditions were the same, it was impossible for defendant's special agents to have seen what they testified to at the preliminary hearing; that Mr. Little said he would be glad to help plaintiff; that he thought Mr. Little asked him if he wanted an investigation under the "switchmen's agreement;" that he did not care to have such an investigation; that Mr. Little agreed to investigate the matter with plaintiff; that Mr. Little and plaintiff, accompanied by others, made an investigation on or about the night of November 30, 1933; that said night was a moonlight night whereas the night of August 13th was a clear, dark night and the conditions with respect to visibility were not similar; that Mr. Little informed him they would arrange to make another investigation later; and that plaintiff never asked him to go back again — "that was the end, the next morning there was no other chance, no other opportunity to ask him." The quoted testimony referred to the fact that plaintiff received a service letter, dated December 1, 1933, notifying him of his dismissal from service. This notification was over the signature of Superintendent Little, and, after stating plaintiff had been employed as a "switchman" from May 31, 1920, to August 14, 1933, read: "Cause of leaving — Dismissed from service account it having been reported to the undersigned that he was seen entering and leaving car containing merchandise at night without lighted lantern while the car containing merchandise was located in a more or less secluded spot."

Defendant says the admission of this letter in evidence was error, and cites the three cases next mentioned. They hold testimony raising extraneous and collateral issues having no bearing on the factual issues in controversy inadmissible; as follows: In Ellis v. Metropolitan St. Ry. Co., 234 Mo. 657, 685(e), 138 S.W. 23, 32[23], a tort action based on negligence, testimony of defendant's custom to investigate such claims and upon determination as to fault to adjust cases wherein defendant was at fault and decline to adjust others. In Cantwell v. Johnson, 236 Mo. 575, 595(2), 139 S.W. 365, 372[1], a proceeding in equity seeking relief by way of an injunction, accounting and redemption of certain personal property, testimony covering "gone-by transactions" not germane to the subject-matter of the suit. In Ritter v. First Natl. Bk., 87 Mo. 574, 575, an action for a deposit with defendant, testimony that a witness accompanied plaintiff to town and to defendant bank on a given date.

Plaintiff says if the service letter was competent for any purpose its admission was not error (Moore v. St. Joseph & G.I. Ry. Co., 268 Mo. 31, 36(IV), 186 S.W. 1035, 1037[5]; Cazzel v. Schofield, 319 Mo. 1169, 1192(VI), 8 S.W. (2d) 580, 590[10]), and contends it was admissible for a number of reasons.

[1] Malice is of the gist of an action for malicious prosecution. [Vansickle v. Brown, 68 Mo., 627, 637[9]; Waddell v. Krause, 210 Mo. App. 117, 127, 241 S.W. 964, 966[5]; Finley v. St. Louis Refrig. & W.G. Co., 99 Mo. 559, 563(II), 13 S.W. 87, 88(2).] Missouri opinions ruling malicious prosecution actions contain statements to the...