Steen v. First Nat. Bank

• Decision Date: 18 March 1924
• Docket Number: 6203.
• Citation: 298 F. 36
• Parties: STEEN v. FIRST NAT. BANK OF SARCOXIE, MO., et al.
• Court: U.S. Court of Appeals — Eighth Circuit

298 F. 36

STEEN v. FIRST NAT. BANK OF SARCOXIE, MO., et al.

No. 6203.

United States Court of Appeals, Eighth Circuit.

March 18, 1924

Rehearing Denied May 29, 1924.

Kelsey Norman, of Joplin, Mo. (James C. Norman, of Joplin, Mo., on the brief), for plaintiff in error.

John H Flanigan, of Carthage, Mo. (Allen McReynolds, of Carthage Mo., and Cameron L. Orr, of Kansas City, Mo., on the brief) for defendants in error.

Before SANBORN and KENYON, Circuit Judges, and MUNGER, District Judge.

SANBORN, Circuit Judge.

This is an action by Mrs. Elizabeth Steen against the First National Bank of Sarcoxie, a corporation, and W. J. Burns International Detective Agency, a corporation, to recover damages for the defendants' prosecution without probable cause and maliciously of the plaintiff for the alleged crime of feloniously and burglariously entering and stealing from the building of the bank bonds and money worth about $26,000 in the month of January, 1920. The complaint contains averments of facts constituting a good cause of action for such damages. The defendants denied these averments. The case was tried to a jury, and at the close of the trial the court instructed the jury to return a verdict for the defendants, and the plaintiff excepted and has assigned this ruling and rulings rejecting offered evidence as error. In the consideration of this case Mrs. Steen will be called the plaintiff and the corporations the defendants.

The defendants have made a motion to dismiss the writ of error: (1) Because the bill of exceptions was not signed by Judge Van Valkenburgh, who tried the case; and (2) because the bill of exceptions was not filed until February 25, 1922, and the time granted by the court for filing the bill of exceptions expired on February 15, 1922. The second ground of this motion is met by the plaintiff by proof that the trial court on February 11, 1922, made an order extending the time to file the bill of exceptions until March 2, 1922, and by a motion to make a copy of that order a part of the record in this court. That motion is granted.

The first ground of the motion to dismiss rests upon this condition of the bill of exceptions. At the end of the recital of the proceedings at the trial appears the usual form of an approval of the bill of exceptions, with the dates blank and the place for the signature of the judge blank, just over the words:

'Judge District Court of U.S., Southwestern Division, Western District of Missouri.'

Also below this appear the words:

'The above and foregoing bill of exceptions is hereby approved. Griffin & Orr, Attorneys for Defendant William J. Burns International Detective Agency, Inc. McReynolds and McReynolds and John Flanigan, Attorneys for First National Bank of Sarcoxie, Missouri.

'Let the bill be filed and the filing show of record as of this 25th day of February, 1922.

Arba S. Van Valkenburgh, Judge.'

This condition of the bill of exceptions convinces that counsel for the plaintiff prepared it, and submitted it to the counsel for the defendants; that they approved it; that thereafter counsel for the plaintiff either presented it or caused it to be presented to the trial judge; that he intended to allow and certify it in the usual form, but by mistake wrote his name in the last blank for his signature, instead of in the blank at the foot of the usual certificate. He would not have ordered the bill of exceptions filed, if his mind had not assented to its approval, and, as counsel for the defendants stipulated that the bill of exceptions was correct, the mistake of the judge in the placing of his signature ought not to deprive the plaintiff of the benefit of her writ of error. U.S. Compiled Statutes, Sec. 1591. The motion to dismiss the writ of error is therefore denied.

The evidence received at the trial tended to prove that one or more persons broke into the building of the defendant bank in January, 1920, and stole money and securities worth about $26,000; that on October 12, 1920, George W. Crowder, assistant prosecuting attorney, filed a complaint with a justice of peace in Marion township, Jasper county, Mo., wherein he charged that the plaintiff, Mrs. Steen, committed that crime; that upon this complaint the justice issued his warrant for her arrest; that Oll Rogers, the sheriff, arrested her under this warrant at Galena, Kan., October 15, 1920, and took her before the justice; that she pleaded not guilty; that the justice committed her to jail where she remained until October 18, 1920, when she entered into her recognizance for her appearance at her preliminary examination; that at that examination H. B. Boyd, president of the defendant bank, and other witnesses, testified for the prosecution, several witnesses testified for this plaintiff, Mrs. Steen, and the justice found that the offense had been committed, but that the plaintiff, Mrs. Steen, had not been connected therewith; that there was no proof of her guilt and he discharged her.

The record tends to prove that Mr. Boyd, the president, and Mr. Brosius, the vice president, of the defendant bank, acted for and represented the bank in the proceedings which resulted in the filing of the complaint against her, her arrest, and her imprisonment. The plaintiff in her complaint in this action charges, and the defendants deny, that the bank, acting by and through its authorized agents, without probable cause maliciously and falsely informed the assistant prosecuting attorney that she had broken into and stolen the moneys and securities of the bank; that it urged the prosecuting attorney to issue the warrant; that it agreed to pay all expenses incurred about her arrest, and caused her to be arrested, confined in jail, and to pay large expenses and endure great physical and mental suffering.

After considerable evidence had been introduced at the trial, plaintiff's counsel called as witnesses Mr. Crowder, the assistant prosecuting attorney, and Mr. Rogers, the sheriff, and asked them in substance who had talked to them about the prosecution and making the arrest of the plaintiff, Mrs. Steen, before the complaint against her was filed. Mr. Rogers testified that Mr. Boyd and Mr. Brosius had talked to him about the matter several times and that he made an investigation of the robbery. Before Mr. Crowder could answer the question who talked to him before he instituted the prosecution, counsel for the defendants objected to the introduction of any testimony of either of these witnesses to the statements Mr. Boyd or Mr. Brosius made to the prosecuting attorney or to the sheriff, on the ground that such statements were privileged communications, not susceptible of proof over objections, on the ground that they were made to officers of the state charged with the administration of justice in respect to the criminal law, and that the statements made to the assistant prosecuting attorney were communications between Mr. Boyd and Mr. Brosius and their attorney, and hence privileged upon that ground.

Thereupon counsel for the plaintiff stated that he expected to prove by Mr. Crowder that the defendants in this case presented to him what facts and circumstances they had in their possession bearing upon the guilt or innocence of the plaintiff of the crime charged, and that this witness, George W. Crowder, advised the defendants, and each of them, that the facts detailed to him by the said defendants were not sufficient to constitute probable cause, that they were mere suspicions and surmises, and that he would not undertake the prosecution of this plaintiff upon said charge without the defendants, and each of them, fully and thoroughly understanding that they were, each and every one of them, responsible for any damages that might arise from the prosecution of this plaintiff upon said surmises and suspicions, and that, when he signed the complaint in said case charging this plaintiff with said crime, he did so at the demand of the defendants herein. Counsel for the plaintiff further stated that he expected to prove by the witness Oll Rogers, the sheriff, that he refused to have anything to do with the prosecution of this case and the arrest, obtaining of any testimony, or bringing witnesses before the court, without and unless the defendants, and each of them, would be responsible to him and pay him for any and all costs and expenses incurred by him, and also hold him harmless from any and all damages that might arise by reason of any act of his in and about the arrest of this plaintiff and the prosecution of said case. At the close of this statement the trial court sustained the objections to the admission of the testimony on the authority of Vogel v. Gruaz, 110 U.S. 311, 316, 4 Sup.Ct. 12, 28 L.Ed. 158, and the plaintiff excepted.

Thereupon the plaintiff, for the purpose of proving a waiver of the alleged privilege, presented the witness Mrs. Tom Harrison and offered to prove by her that she was present at the preliminary hearing of the plaintiff upon the charge out of which this case arose, and that she heard the testimony of the defendants herein, wherein Jack Searles, representing the Burns International Detective Agency, and wherein H. B. Boyd, president, and George Brosius, vice president, respectively, of the First National Bank of Sarcoxie, each, after being sworn and having testified in chief, on cross-examination testified freely and voluntarily as to what statements they had made to George W. Crowder, assistant prosecuting attorney of Jasper county, Mo., concerning and touching upon the guilt or innocence of this plaintiff of the crime, which it is alleged she had committed, and out of which this action arose. Counsel for the defendants then objected to this evidence on the ground that it was privileged,...