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

• Decision Date: 17 December 1937
• Parties: W. G. Polk v. Missouri-Kansas-Texas Railroad Company, a Corporation, Appellant
• Court: Missouri Supreme Court

111 S.W.2d 138

341 Mo. 1213

W. G. Polk v. Missouri-Kansas-Texas Railroad Company, a Corporation, Appellant

Supreme Court of Missouri

December 17, 1937

Appeal from Cass Circuit Court; Hon. Leslie A. Bruce Judge.

Reversed and remanded.

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

(1) The issues in this case simmered down to the question of plaintiff's guilt or innocence of the crime charged. In an action for malicious prosecution the plaintiff must always be regarded as tendering the issue of his innocence, for if it appear that he was guilty of the crime charged, he has no legal ground for complaint. Moore v. Sanborin, 42 Mo. 490; Harris v. Railroad Co., 172 Mo.App. 269 157 S.W. 893; Wells v. Natl. Surety Co., 194 Mo.App 389, 184 S.W. 474; 38 C. J. 459; 18 R. C. L. 457; Shelton v. Southern Railroad Co., 255 F. 186; White v. International Text Book Co., 136 N.W. 125; Mack v. Sharp, 101 N.W. 631. (2) The court erred in admitting in evidence the statement of the county attorney setting forth his reasons for dismissing the criminal prosecution. 38 C. J., pp. 484, 488; Aldridge v. Island Empire Tel. & Tel. Co., 113 P. 265; Hickey v. Shellenbarger, 147 N.W. 576; Casey v. Sevatson, 16 N.W. 407; Martin v. Corscadden, 86 P. 33; Sweeney v. Perney, 19 P. 328; Farwell v. Laird, 49 P. 518; Dempsey v. State, 11 S.W. 372; Stewart Dry Goods Co. v. Arnold, 164 S.W. 787; Dickson v. Young, 200 N.W. 210; Herzog v. Kincade, 66 F.2d 210; Dawes v. Starrett, 82 S.W.2d 60. (3) It was error for the court to permit plaintiff's attorney to cross-examine defendant's witnesses by reading from a document exhibited to the jury as a transcript of the testimony at the preliminary hearing, which document was never identified as an authenticated copy of any court record or as a transcript of the evidence at the preliminary hearing and was never offered in evidence, particularly where plaintiff's attorney assured the court and opposing counsel that the document could and would be properly identified, when he in fact knew he could not so identify it. 70 C. J. 1083; Philadelphia & R. Ry. Co. v. Bartsch, 9 F.2d 858; Littig v. Urbauer-Atwood Heating Co., 292 Mo. 248, 237 S.W. 779. (4) The court erred in permitting plaintiff's counsel, during the cross-examination of one of defendant's witnesses, to refer to and read from a writing prepared by another of plaintiff's attorneys during a conference with such witness, which writing was never identified as a statement of the witness, was not signed by him, and contained prejudicial statements he denied making. Philadelphia & R. Ry. Co. v. Bartsch, 9 F.2d 858; Littig v. Urbauer-Atwood Heating Co., 292 Mo. 246, 237 S.W. 779. (5) The burden was upon the plaintiff to prove the absence of probable cause for defendant's acts. Henderson v. Cape Trading Co., 316 Mo. 384, 289 S.W. 332; Randall v. Kline's, Inc., 18 S.W.2d 500; Madden v. Covington, 86 S.W.2d 190. The court erred in giving plaintiff's Instruction 5 which relieved the plaintiff of his burden of proof with reference to such issue and also submitted issues unwarranted by the evidence. (6) Respondent challenges the sufficiency of a number of the assignments of error contained in appellant's brief. An examination of appellant's brief will show that appellant has substantially complied with the rules of this court, as the contents of the brief definitely inform the court and opposing counsel of each of the specific errors complained of and the grounds of complaint. Wallace v. Libby, 231 Mo. 344, 132 S.W. 665; Mugan v. Wheeler, 241 Mo. 379, 145 S.W. 462; Collier v. Porter, 16 S.W.2d 53; Kirkland v. Bixby, 282 Mo. 465, 222 S.W. 462; Falvey v. Hicks, 315 Mo. 449, 286 S.W. 385; Farmers' Elevator & Grain Co. v. Davis, 267 S.W. 398; Collier v. Catherine Lead Co., 208 Mo. 259, 106 S.W. 971; Rank v. Wickmire, 164 S.W. 464; Algur v. Strodtman, 46 S.W.2d 172.

T. N. Haynes, Crouch & Crouch, Payne H. Ratner and Clarence C. Chilcott for respondent.

(1) Appellant's assignment of error I as aided by points and authorities (II) is wholly insufficient to invoke the court's consideration. Span v. Jackson Walker Coal & Mining Co., 16 S.W.2d 202, 322 Mo. 158; Haynes 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 798; Miller v. Mut. Benefit H. & A. Assn., 80 S.W.2d 201; Mahmet v. Am. Radiator Co., 294 S.W. 1016; 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; Bank 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 119; School Dist. v. Phoenix Land Co., 249 S.W. 54, 297 Mo. 332; Hunt v. Hunt, 270 S.W. 369; 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. 60, 280 Mo. 416; State v. Preslar, 290 S.W. 144, 316 Mo. 144; Barnett v. Hastain, 256 S.W. 753; State v. Judge, 285 S.W. 721, 315 Mo. 156; Thornton v. Stewart, 240 S.W. 502; Huber v. Jones, 85 S.W.2d 418. (a) Plaintiff's Exhibit B1 was properly admitted in evidence. 38 C. J., pp. 387, 484-494; 22 C. J., pp. 165-66, 799, 801, 814-15; Sec. 62-804, R. S. of Kan. 1923; 4 Jones on Evidence (2 Ed.), sec. 1700, p. 3118; Ex parte Trall, 298 P. 776, 133 Kan. 167; State v. Randolph, 26 Mo. 213; Chubb v. Griffin, 13 Tex. 392; Kansas & Texas Coal Co. v. Galloway, 74 S.W. 521, 71 Ark. 351; Phillipson v. Bates, 2 Mo. 116; State v. David, 33 S.W. 31, 131 Mo. 380; Metz v. Kansas City, 81 S.W.2d 462, 229 Mo.App. 401; Randol v. Klines, 18 S.W.2d 500, 322 Mo. 746; Galli v. Wells, 239 S.W. 896, 204 Mo.App. 460; Kirkpatrick v. Wells, 6 S.W.2d 593, 319 Mo. 1040; Irons v. Am. Ry. Exp. Co., 300 S.W. 283, 318 Mo. 318; Macan v. Mo. Mut. Assn., 60 S.W.2d 402; State ex rel. Mo. Mut. Assn. v. Allen, 78 S.W.2d 862, 336 Mo. 352; White v. United States, 164 U.S. 100, 41 L.Ed. 365, 17 S.Ct. 38; Price v. Denison, 95 Minn. 106, 103 N.W. 731; Zimmer v. McLaren, 9 Mo.App. 591; Spalding v. Lowe, 23 N.W. 46; Home Exch. Bank of Jamesport v. Koch, 32 S.W.2d 86, 326 Mo. 369; Reynolds v. Md. Cas. Co., 201 S.W. 1128, 274 Mo. 83; Rhomberg v. Israel, 296 S.W. 860, 222 Mo.App. 238; Parker v. Met., 126 S.W. 759, 140 Mo.App. 703; Klaber v. Lahar, 63 S.W.2d 107; Raytown Savs. Bank v. Hutton, 123 S.W. 47, 224 Mo. 42; Brockman v. Robinson, 48 S.W.2d 128; Leimkuehler v. Wessendorf, 18 S.W.2d 445, 323 Mo. 64; Carp v. Queen Ins. Co., 101 S.W. 78, 203 Mo. 295; Bethune v. Ry. Co., 41 S.W. 213, 139 Mo. 574. (2) The court did not err in giving plaintiff's Instruction 5. Carp v. Queens Ins. Co., 101 S.W. 78, 203 Mo. 295; Stubbs v. Mulholland, 67 S.W.2d 650, 168 Mo. 47; Foster v. C. B. & Q., 14 S.W.2d 561; Randol v. Klines, 18 S.W.2d 500, 332 Mo. 746, 49 S.W.2d 112, 330 Mo. 343; Steppuhn v. Ry. Co., 199 Mo.App. 571, 204 S.W. 579.

Cooley, C. Westhues and Bohling, CC., concur.

OPINION

COOLEY

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 $ 2500 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, Kansas. 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 burlary in the second degree, a felony, to break into a freight or express car with intent to steal or to commit any felony therein; 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, known 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...