Polk v. Missouri-Kansas-Texas R. Co.
| Decision Date | 27 August 1943 |
| Docket Number | 37923 |
| Parties | W. G. Polk v. Missouri-Kansas-Texas Railroad Company, a Corporation, Appellant |
| Court | Missouri Supreme Court |
Motions to Modify Opinion and for Rehearing Overruled October 4, 1943.
Appeal from Cass Circuit Court; Hon. Leslie A. Bruce Judge.
Affirmed (subject to remittitur).
Carl S. Hoffman, John T. Martin and Montgomery Martin, Salveter & Montgomery for appellant.
(1) Error was committed by the court in permitting plaintiff and his witnesses, Howard Dietrich, Payne H. 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 tests to determine the condition affecting visibility at the point of plaintiff's arrest when they had visited the yards on an occasion in October of 1933, at about 2 o'clock in the morning. W. G. Polk v. M.-K.-T. Railroad Co., 346 Mo. 793, 142 S.W.2d 1061. (2) The award of $ 18,000 as punitive damages 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. 628, 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) Appellant's assignments of error are not aided by its statement, points and authorities, or argument, and is wholly insufficient to invoke the court's consideration because the objection made at the trial is not stated, the ground of objection now made is not specified, no prejudice is shown by the admission of the evidence and no reasons are assigned. Span v. Jackson Walker Coal & Mining Co., 16 S.W.2d 190, 322 Mo. 158; Hayes v. McLaughlin, 217 S.W. 262; Blair v. Patterson, 110 S.W. 615, 31 Mo.App. 122; American Emp. Ins. Co. v. Mech. Bank of K. C., 85 S.W.2d 174, 229 Mo.App. 994; Artz v. Bannon, 71 S.W.2d 795; Miller v. Mut. Benefit H. & A. Assn., 80 S.W.2d 201; Mahmet v. American Radiator Co., 294 S.W. 1014; Coffey v. Higbee, 318 Mo. 10, 298 S.W. 766; Peake v. Taubman, 158 S.W. 665, 251 Mo. 390; Potashnick v. Pearline, 43 S.W.2d 790; Banks v. Aetna, 40 S.W.2d 535, 225 Mo. 113; University Bank v. Major, 83 S.W.2d 924, 229 Mo.App. 963; McKenzie v. Mo. Pac., 24 Mo.App. 392; Kiger v. Sanko, 1 S.W.2d 218; Evans v. Williams, 4 S.W.2d 867; Nevins v. Gilliland, 234 S.W. 818, 290 Mo. 293; Scott v. Mo. Pac., 62 S.W.2d 834, 333 Mo. 374; McGee v. St. Joseph Belt Ry. Co., 93 S.W.2d 1111; School Dist. v. Phoenix Land Co., 249 S.W. 51, 297 Mo. 332; Hunt v. Hunt, 270 S.W. 365; Davis v. Real Estate Co., 143 S.W. 1108, 163 Mo.App. 328; Seewald v. Gentry, 286 S.W. 445, 220 Mo.App. 367; Hamilton v. Crow, 75 S.W. 389, 175 Mo. 634; Christine v. Luyties, 217 S.W. 55, 280 Mo. 416; State v. Preslar, 290 S.W. 142, 316 Mo. 144; Barnett v. Hastain, 256 S.W. 750; State v. Judge, 285 S.W. 718, 315 Mo. 156; Thornton v. Stewart, 240 S.W. 502; Huber v. Jones, 85 S.W.2d 418. (2) The former opinion in the case constitutes the law thereof and under the ruling of that case a proper foundation was laid by showing that the appellant had knowledge of the exact time respondent, his counsel and witnesses were to make observations and experiments in the yards of appellant with regard to visibility, and had given its permission to make such observations and tests, and thereafter forcibly prevented such observations and experiments from being made until it was too late to obtain a court order, requiring appellant to permit such observations and experiments under the same conditions as when respondent was arrested, before respondent's case would be called for trial and thereby wrongfully deprived respondent of one of the means of exculpating himself from the charges brought against him in the criminal proceeding in Labette County, Kansas. Poe v. Ill. Cent. R. Co., 339 Mo. 1025, 99 S.W.2d 82; Leete v. The State Bank of St. L., 141 Mo. 574, 42 S.W. 1074; Bushman v. Barlow, 321 Mo. 1052, 15 S.W.2d 329; Thompson v. Scott, 323 Mo. 790, 19 S.W.2d 1063; Sabol v. St. Louis Cooperage Co., 313 Mo. 527, 31 S.W.2d 1041; Bloecher v. Duerbach, 338 Mo. 535, 92 S.W.2d 681; First Natl. Bank of Plattsburg v. Renick, 246 Mo. 490, 151 S.W. 421; Moore v. St. J. & G. I. R. Co., 268 Mo. 31, 186 S.W. 1035; Cazzell v. Scofield, 319 Mo. 1169, 8 S.W.2d 580; Griggs v. K. C. Ry. Co., 228 S.W. 508; Carpenter v. Kurn, 158 S.W.2d 213; 22 C. J. 111, 124; 1 Jones, Commentaries on Evidence (2 Ed.), sec. 83, p. 142; Bryant v. Stillwell, 24 Pa. 314; 38 C. J. 492, note 95 (d); 22 C. J., sec. 108, pp. 173, 174, 764; Waddell v. Krause, 241 S.W. 964; Finley v. St. Louis Ref. Co., 13 S.W. 87; Randol v. Klines, 18 S.W.2d 500; Scovill v. Glasner, 79 Mo. 449; Christian v. Hanna, 58 Mo.App. 37; Kennedy v. Holladay, 25 Mo.App. 503; Pandjiris v. Hartman, 196 Mo. 539, 94 S.W. 270; Vansickle v. Brown, 68 Mo. 627; Stubbs v. Mulholland, 67 S.W. 650; Irons v. Am. Ry. Exp. Co., 300 S.W. 283; Foster v. C., B. & Q., 14 S.W.2d 561; Kane v. Oehler et al., 205 P. 245; Verdi v. Donahue, 99 A. 1041; Waters v. W. C. St. R. R. Co., 101 Ill.App. 265; Conner v. Timothy, 43 Ariz. 517; Bradford v. Lawrence, 94 So. 103; Brown v. Martin, 96 S.E. 642; Goddman v. Klein, 104 S.E. 726; Holden v. Merritt, 92 Iowa 707; Clapp v. Lahood, 254 P. 866; Monske v. Klee, 221 P. 152; Severns v. Brainerd, 63 N.W. 477; Bitting v. Ten Eyck, 82 Ind. 421; Polk v. M., K. & T., 346 Mo. 793, 142 S.W.2d 1061; Carpenter v. Kurn, 157 S.W.2d 213; Hollister v. A. S. Aloe Co., 156 S.W.2d 606; Burneson v. Zumwalt, 159 S.W.2d 605; Laughlin v. Boatman's Natl. Bank of St. L., 163 S.W.2d 761; State ex rel. Thompson v. Shain, 163 S.W.2d 967; Carp v. Queen Ins. Co., 203 Mo. 295, 101 S.W. 78; Fagnan v. Knox, 40 N.Y.S. 41, affirmed 66 N.Y. 525. (3) The verdict was not excessive. In view of the malevolent manner in which the appellant and its agents have pursued respondent and the vindictive manner in which they have persecuted him as well as prosecuted him the punitive damages are not excessive. 38 C. J. 445-447; Carp v. Ins. Co., 203 Mo. 295, 101 S.W. 78; Steppuhn v. Ry., 199 Mo.App. 571, 204 S.W. 579; Black v. Can. Pac. Ry. Co., 218 F. 239, affirmed 230 F. 798; Mexican Cent. Ry. Co. v. Gehr, 66 Ill.App. 173; Evansville & C. Ry. Co. v. Talbot, 131 Ind. 221; Natl. Surety Co. v. Mabry, 139 Ala. 217; Rawson v. Leggett, 90 N.Y.S. 5; Randol v. Klines, 42 S.W.2d 112, 330 Mo. 343; Irons v. American Ry. Exp. Co., 318 Mo. 318, 300 S.W. 283; Luthmers v. Hazel, 212 Ill.App. l. c. 207; M.-K.-T. R. Co. v. Craddock, 174 S.W. 965; Foster v. C., B. & Q. R. Co., 14 S.W.2d 561; Lyons v. St. Joseph B. Ry. Co., 84 S.W.2d 933; Walker v. St. Joseph B. Ry. Co., 102 S.W.2d 719; State ex rel. St. Joseph B. Ry. Co. v. Shain, 108 S.W.2d 351; Foster v. Bourgeois, 253 S.W. 880; Engleman v. Caldwell and Jones, 47 S.W.2d 971; Duncan v. Record Pub. Co., 143 S.E. 31; Puutio v. Roman, 255 P. 730; Newport v. M. W. & Co., 127 S.W.2d 687; Sperry v. Hurd, 267 Mo. 628, 185 S.W. 170.
In this the third trial of W. G. Polk's action against the Missouri-Kansas-Texas Railroad Company for malicious prosecution the jury returned a verdict for $ 9,000.00 actual damages and $ 18,000.00 punitive damages. On this appeal the railroad urges two points: (1) that under the last opinion in this case (Polk v. M. K. & T. Ry. Co., 346 Mo. 793, 142 S.W.2d 1061) the court erred in permitting certain of the plaintiff's witnesses to testify that they had obtained and then been denied permission to carry out tests with reference to visibility in the defendant's yards in October, 1933; and (2) that the award of $ 18,000.00 as punitive damages is excessive.
The railroad's first objection is fully appreciated in view of the circumstances out of which the action arose. Substantially, the basic facts are as they were on the first appeal, Polk v. M. K. & T. Ry. Co., 341 Mo. 1213, 111 S.W.2d 138. The railroad maintains extensive yards in Parsons, Kansas. The yards in question are divided into three parts, the east yards, the Klondike yards and west yards. The east yards were the busiest and most frequently used, while the west yards were used for the storage of cars and the making up of local trains, especially the Cherokee and Joplin locals. Prior to August, 1933, a "drop or pedder car" of mixed merchandise on the Cherokee local had been broken into and goods removed four times and from the circumstances it was thought the burglaries had occurred while the cars were in the yards.
On August 13, 1933 W. G. Polk went to work in the yards about 11:30 as "the long field man" with a switching crew. The greater part of the crew's work had been in the east yards, but after certain other movements in the east yards it was understood that the next movements would be in the west yards and because of that fact Polk says he went into the west yards for the purpose of informing himself as to the condition of the tracks and the location of the cars, especially of the cars to be used in the next movements. While he was in the west yards, shortly after 2 o'clock of the morning of the 14th, he was taken into custody by the Baxley brothers, members of the railroad's special service department, placed in the Parsons city jail and charged with burglarizing the merchandise car.
In the west yards Polk determined whether the cars they had previously "kicked in" on track 2 had cleared the lead and whether there was room next the cabooses for making up the locals. As he walked north between tracks 2 and 3 he looked between the cars on tracks 3 and 4 and saw a caboose on track 5 and in order to identify it as a caboose belonging to one of the locals (trains are made up against cabooses) and to...
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