St. Louis, Iron Mountain & Southern Railway Co. v. Wallin

• Citation: 75 S.W. 477,71 Ark. 422
• Parties: ST. LOUIS, IRON MOUNTAIN & SOUTHERN RAILWAY CO. v. WALLIN
• Decision Date: 13 June 1903
• Court: Arkansas Supreme Court

75 S.W. 477

71 Ark. 422

ST. LOUIS, IRON MOUNTAIN & SOUTHERN RAILWAY CO. v. WALLIN

Supreme Court of Arkansas

June 13, 1903

Appeal from Crittenden Circuit Court FELIX G. TAYLOR, Judge.

Reversed.

Reversed and remanded for a new trial.

Dodge & Johnson, for appellant.

The verdict is contrary to law, and not sustained by the evidence. 12 Ark. 87; 12 Am. & Eng. Enc. Law (2d ed.), 723; 6 Ohio 444; 65 Mo.App. 431; 97 N.Y. 590; 12 Ark. 439. C. D West was a witness of the state, and not the agent of the appellant. 50 S.W. 471; 1 Am. & Eng. Enc. Law (2d ed.), 899 Newell, Mal. Pros. 319; 1 Hillard, Torts, 506; 15 Ark. 355; 33 Ark. 322; 3 Blackst. 126; 33 Ark. 322. There was probable cause for laying the matter before the prosecuting attorney. 19 Am. & Eng. Enc. Law 685. The court erred in permitting letters of F. K. Barton to be read in evidence. 41 F. 898; 95 Ib. 926; 44 Cal. 609; 5 Cal. 1; 72 Conn. 335; 77 Ill. 32; 98 Ky. 365; 51 S.W. 194; 65 Minn. 256; 61 Hun, 48; 52 Pa.St 419; 147 Pa.St. 594; 148 Mass. 546; 48 La.Ann. 334; 20 Mont. 163; 44 Cal. 609; 68 Me. 559. The court erred in excluding certain questions from witness Moore. 66 N.Y. 525; Cooley, Torts, 182; 53 N.Y. 14; 15 Gratt. 381; 69 Ark. 441; 63 Ark. 387; 40 La.Ann. 374; 19 R. I. 291; 5 Bing. N. Cas. 722; 35 E. C. L. 285; 8 Scott, 40. The fiinding of an indictment is prima facie evidence of probable cause. 92 Ia. 52; 44 J. J. Marsh. 628; 76 Mo. 660; 91 Mo. 138; 59 Mo.App. 92; 15 Nev. 167. The court erred in giving instruction No. 9 1/2. 147 U.S. 106..

H. G. Chambers and Wright, Peters & Wright, for appellee.

The appellant is liable. 12 Ark. 53; 24 How. 544; 58 Mo.App. 37; 99 Mo. 559; 104 Tenn. 597; 73 Ind. 433; 50 S.W. 471; Schouler, Dom. Rel., 637; 100 Ind. 139; 73 Ind. 434; 96 Tenn. 229; Wood, Mas. & Ser. §§ 229, 307-9. The advice of appellants' attorney to West does not relieve it of liability, and does not serve to prove no malice. 72 Mo.App. 199; 91 Ill.App. 38; 29 S.E. 459; 74 Ill.App. 36; 44 S.W. 975; 94 F. 975; 36 C. C. A. 75; 128 Cal. 31; 94 Tenn. 686; Am. Dig. 1889, B. 2874; 19 Am. & Eng. Enc. Law, 657-8. The letter of F. K. Barton was properly admitted. 68 Me. 559; 2 Starkie, 69; 44 Cal. 609; 5 Lea, 577. The questions propounded to witness Moore were properly excluded. 69 Ark. 441; 63 Ark. 387; 39 Minn. 168; 64 Texas, 320; 93 Ala. 570; 83 Ill. 548; 55 Ind. 461; 46 Md. 580; 8 R. I. 360. There was no error in instructions given. 4 Lea, 233; 156 U.S. 432.

OPINION

BATTLE, J.

Lucian Wallin brought an action against St. Louis, Iron Mountain & Southern Railway Company, and alleged in his complaint that the defendant falsely and maliciously procured him to be indicted by the grand jury of Crittenden county, in this state, for the crime of obtaining money under false pretenses; and that the indictment was, by leave of the court, dismissed by the prosecuting attorney, and he was discharged; and that by reason of such prosecution he had been damaged in the sum of $ 45,350.

The defendant answered, and denied all the allegations in the complaint. The plaintiff recovered a judgment for $ 8,000, and the defendant appealed.

The facts in this case are substantially as follows: Appellee, Wallin, was the foreman of an extra gang of section hands in the employment of the appellant, working upon its railroad near the town of Gavin, in the county of Crittenden, in this state. His duty was to keep a roll of the men in his gang, the time they worked, and report the same to the superintendent and division road master of appellant every night. He was permitted to board the men, and did so; and was allowed to furnish them with anything they needed, and charge for the same not exceeding sixty per cent of their wages. At the end of each month he made out their respective accounts, and sent them to the proper officer to be paid when the wages of the men were due. The pay roll, made out according to his report, showed forty-three men working under him. His work was unsatisfactory, and he was discharged about the 29th of August, 1898. About the 15th of September following, at the usual time, the paymaster of appellant went to Gavin for the purpose of paying its employees. Only six out of the forty-three men appeared and claimed their pay. Twenty-one of them never claimed wages. He charged each one of the forty-three men with various sums, amounting in the aggregate to $ 195, which he claimed was due him for board, and was afterward paid to him by appellant. The paymaster, thinking that these facts were suspicious, reported them to the general superintendent of the appellant, and he reported them to Division Superintendent Moore for investigation, and he directed his special agent, C. D. West, to investigate them, which he did, and reported to Moore, and he referred the report and accompanying papers to Dodge & Johnson, the general attorneys of appellant, for their opinion, which they received and examined. Shortly thereafter C. D. West reported to them for instructions. Mr. Johnson, whose instructions he asked, testified: "I told him I had no instructions; that under no circumstances would the railway company order a prosecution of Wallin; that under no circumstances, as far as the railway company was concerned, would anybody prosecute Wallin; but I said to him: 'Mr. West, from the examination of these papers, I believe that there is just ground for laying this matter before the prosecuting attorney of Crittenden county, and you can go there at next term of court, and lay the matter before Mr. Killough, but under no circumstances do you prosecute or swear out any warrant against Wallin.'"

West saw O. N. Killough, who was prosecuting attorney at that time, and commenced telling him the facts that he had discovered by his investigation, when Killough directed him to go before the grand jury, which he did. Shortly thereafter the grand jury of Crittenden county returned into the Crittenden circuit court an indictment against appellee, in which it accused him of the crime of obtaining money under false pretenses, committed as follows: "The said Lucian Wallin, on the 20th day of August, 1898, in the county of Crittenden aforesaid, being then and there an employee of the St. Louis, Iron Mountain & Southern Railway Company, a corporation, falsely, fraudulently, feloniously and designedly did pretend and represent to said St. Louis, Iron Mountain & Southern Railway Company, a corporation, that John Smith was an employee of the said St. Louis, Iron Mountain & Southern Railway Company, a corporation, and did feloniously, fraudulently and designedly collect and obtain from the said St. Louis, Iron Mountain & Southern Railway Company the sum of eighty-four dollars as board for the said John Smith. Whereas, in truth and in fact, the said John Smith was not an employee of the St. Louis, Iron Mountain & Southern Railway Company."

At a term of the circuit court next thereafter held the prosecuting attorney, with leave of the court, entered a nolle prosequi in the case, and the accusation against the appellee was submitted to the grand jury of that term, and it failed to indict, and appellee was discharged.

Among the instructions given to the jury by the court over the objections of the appellant were the following:

"13. If you find from the evidence that the defendant company authorized and directed C. D. West to report the charges against Wallin to the prosecuting attorney, and that the prosecuting attorney, without investigation, referred them to the grand jury, and thereupon West went before the grand jury, and procured the indictment against the plaintiff, then such acts of West were in the range of his employment, and the defendant would be responsible for the same as its agent.

"14. If you find that the defendant, through its proper officers and agents, referred the charges against the plaintiff to Col. B. S. Johnson, their attorney at Little Rock, and that West was directed to report to him and obey his instruction; and if you further find that Col. Johnson, as the attorney and agent of the defendant, sent C. D. West to the prosecuting attorney, under his instructions to lay the facts before him, and that West did report to the prosecuting attorney, who directed him to go before the grand jury, which West accordingly did, and procured an indictment against the plaintiff, under these findings of fact, the defendant would be liable for all the acts of West in the matter as their agent."

In these instructions the court told the jury that appellant was responsible for the acts of West if they found certain facts mentioned therein. In what way was it responsible? From the instructions the jury might reasonably have...