Polk v. Missouri-Kansas-Texas R. Co.

• Decision Date: 17 December 1937
• Docket Number: No. 34646.,34646.
• Citation: 111 S.W.2d 138
• Parties: POLK v. MISSOURI-KANSAS-TEXAS R. CO.
• Court: Missouri Supreme Court

111 S.W.2d 138

POLK v. MISSOURI-KANSAS-TEXAS R. CO.

No. 34646.

Supreme Court of Missouri, Division No. 2.

December 17, 1937.

Appeal from Circuit Court, Cass County; Leslie A. Bruce, Judge.

Action by W. G. Polk against the Missouri-Kansas-Texas Railroad Company.

Judgment for plaintiff, and the defendant appeals, and the plaintiff moves to dismiss the appeal.

Motion to dismiss the appeal denied, judgment reversed and cause remanded.

Carl S. Hoffman, of St. Louis, W. H. Martin, of Boonville, and Montgomery, Martin & Montgomery, of Sedalia, for appellant.

T. N. Haynes and Crouch & Crouch, all of Harrisonville, Payne H. Ratner, of Parsons, Kan., and Clarence C. Chilcott, of Kansas City, for respondent.

COOLEY, Commissioner.

Action for malicious prosecution. The petition was originally in two counts, the first being for false imprisonment, the second for malicious prosecution. At the close of the plaintiff's evidence he was required to elect on which count he would stand. He elected to stand on the second count. There was a verdict and judgment for the plaintiff for $20,000 actual and $2,500 punitive damages, and the defendant appealed.

The alleged malicious prosecution was in a justice of the peace court in the city of Parsons, in Labette county, Kan. It was initiated and prosecuted at the instance of agents and servants of defendant railroad company, acting within the scope of their employment. If their acts were malicious and without probable cause, the defendant is liable. Plaintiff's petition sufficiently states a cause of action. Defendant's answer, after a general denial, pleaded a statute of Kansas declaring it burglary in the second degree, a felony, to break into a freight or express car with intent to steal or to commit any felony therein, Gen.St.1935, 21-520; that its agents who caused plaintiff's arrest and prosecution had reasonable cause to believe him guilty of such offense; that they made full and true disclosure of all the facts to the prosecuting attorney, who advised them that in his opinion plaintiff was guilty; and that the prosecution was instituted with the counsel and advice of said officer.

Plaintiff's evidence tended to show the following:

Defendant maintained extensive switch yards at Parsons, those here in question being known as the north yards, which embraced three subdivisions, called the west, east, and Klondike yards, respectively. The leads for these yards run in a northwesterly and southeasterly direction. The lateral or classification tracks run northerly off the leads, paralleling each other. The tracks in the west yard are farthest northwest and are numbered consecutively, 1, 2, 3, etc., from east to west, and are referred to in the evidence as west 1, west 2, etc. The tracks in the east yard are just east of those in the west yard and are numbered in like manner. The Klondike yard is east of the east yard. The west yard was used for classification, storage, and for making up two local trains, know as the Cherokee and Joplin locals. Track west 3 was used in making up the Cherokee local.

As to the circumstances of plaintiff's arrest and prosecution, his case rests mainly on his own testimony, which was to the following effect:

He was, and had been since 1918, employed by defendant as switchman. On the night in question he reported for duty at 11:30 p. m. His position was that of "long field man," his duties, among others, being to keep himself informed as to the room or space available on tracks where work was to be done by the switching crew and where trains were to be made up. His crew was engaged in breaking up two freight trains in the east yard, for purposes of classification and was also to make up the Cherokee and Joplin locals. The cabooses of the latter trains were set out on tracks west 5 and 6. When the work of the crew in the east yard was nearing completion, plaintiff went into the west yard to see whether some cars previously "kicked in" on track west 2 had cleared the lead and whether there was room next the cabooses for making up the locals. For this purpose, in line with his duty, he walked north between tracks west 2 and 3. Looking between cars on tracks 3 and 4, he saw a caboose on track 5. In order to identify it, determine if it belonged to one of the locals to be made up, and ascertain whether there was room between it and the lead for the balance of the local, he went over to examine, climbing over cars or the couplings thereof on tracks west 3 and 4. As he climbed over the couplings, between cars on track 3, his electric lantern went out, due to some jolt or jar and he could not make it work. Arriving at the caboose on track 5, he lit a match to identify the caboose, ascertaining that it belonged to the Cherokee local. He climbed back over an oil tank car on track 4 and started walking south — toward the lead track on which the switch engine was working — between tracks 3 and 4, when he was confronted by three men, armed with pistols and a shotgun, who arrested him, claiming that they had seen him break and enter a freight car on one of the defendant's switch tracks in the west yard. These three men were William, Lester, and D. F. Baxley, brothers, special agents and employees of defendant. It developed from defendant's evidence that there had been several prior burglaries of cars in defendant's yards and that the Baxleys, on the night in question, were on the lookout for another possible burglary.

The Baxleys, at the time of taking plaintiff into custody, accused him of having broken and entered the car, which contained merchandise and had been sealed, stating that they had been watching and had seen him do so. Plaintiff then and at all times thereafter stoutly denied having done so.

Plaintiff was taken before a justice of the peace, and charged, upon complaint signed by William Baxley, with the felony of burglary in the second degree. Plaintiff's home was searched, nothing incriminating being found. He was given a preliminary hearing before the justice, at which the Baxleys testified. Their testimony was to the effect that they had seen plaintiff break and enter the car. If true, it showed probable cause for the arrest and prosecution. They testified similarly at the trial of this case. Plaintiff, at the trial of this case, testified that said testimony of the Baxleys was false, a dispute resolved in plaintiff's favor by the verdict of the jury. Plaintiff was, by the justice of the peace, on August 24, 1933, bound over to the district court, to answer such information as might be filed by the county attorney. From the time of his arrest, August 14th, until his preliminary examination, and until August 26th, thereafter he was confined in the county jail, being unable to make bond. He made bond and was released thereunder on August 26th. According to his testimony, the jail was filthy and unsanitary and he was subjected to great hardships therein.

The prosecuting attorney (county attorney) failed and refused to file an information in the district court against plaintiff. He filed in said court, pursuant to a Kansas statute, a written statement of his reasons for such action, which will be more specifically referred to hereafter. Upon plaintiff's application, the justice of the peace entered an order of record, on February 22, 1934, dismissing the cause and discharging plaintiff and his bondsmen. This order was approved and concurred in by the prosecuting attorney. It stands admitted that the prosecution had terminated in plaintiff's favor before the institution of this suit. Further facts, as may be necessary, will be stated in the course of the opinion.

Respondent has filed here a motion to dismiss the appeal because of alleged insufficiency of appellant's abstract of record and on the further ground that appellant's statement of facts in its brief is not the "fair and concise" statement required by our rules. The complaint as to the abstract seems to be that it omits some of the evidence and too greatly condenses other portions. Respondent has filed an additional abstract, not however for the purpose of supplying the alleged deficiencies in appellant's abstract, but only to demonstrate that such deficiencies exist. To illustrate, it is pointed out that appellant wholly failed to abstract the testimony (given by depositions) of two witnesses, Forcum, the justice of the peace, and Rosenstahl, the prosecuting attorney. It sufficiently appears that Forcum's testimony went only to the identification of his record or docket entries. These were introduced in evidence without objection and with no question raised as to their authenticity. Rosenstahl's deposition only identified a certain document, Exhibit B 1, which he had filed in the district court, stating his reasons for not filing a criminal charge against plaintiff in that court. The authenticity of that document, also, was treated as a conceded fact at the trial. It was objected to, but not on the ground of lack of proper identification. No point is made on this appeal as to insufficient identification or lack of proof of authenticity of any of said records or documents.

As to condensation, respondent says the bill of exceptions contained 672 typewritten pages. Appellant's abstract contains 202 printed pages. Much of the testimony is condensed and stated in narrative form. Where appellant seemingly deemed it necessary to an understanding of the points urged for reversal, the evidence is set out in haec verba. If we had here a question of the sufficiency of the evidence to make a case for the jury or to sustain the verdict, we might have to hold appellant's abstract insufficient. But there is no such question raised on this appeal. Appellant does not challenge the sufficiency of the evidence. Our rule 13 requires that an appellant's abstract shall set forth "so much of the record as is necessary to a complete understanding of all the questions presented for decision" and that...