Steppuhn v. Chicago Great Western R. Co.

• Decision Date: 29 April 1918
• Docket Number: No. 12516.,12516.
• Parties: STEPPUHN v. CHICAGO GREAT WESTERN R. CO.
• Court: Missouri Court of Appeals

204 S.W. 579

199 Mo. App. 571

STEPPUHN v. CHICAGO GREAT WESTERN R. CO.

No. 12516.

Kansas City Court of Appeals. Missouri.

April 29, 1918.

Appeal from Circuit Court, Jackson County; Daniel E. Bird, Judge.

Suit by George Steppuhn against the Chicago Great Western Railroad Company. Judgment for plaintiff, and defendant appeals. Affirmed in part, and reversed and remanded in part.

Sebree, Conrad & Wendorff, of Kansas City, for appellant. Robinson & Goodrich, of Kansas City, for respondent.

BLAND, J.

This is a suit for false imprisonment and malicious prosecution. Plaintiff having recovered a verdict and judgment, defendant has appealed. The suit was originally against this defendant and the Chicago, Milwaukee & St. Paul Railway Company, but was dismissed as to the latter at the close of the evidence.

The facts show that on October 24, 1914, plaintiff was in the employ of defendant as a night yard or seal clerk. At about 6:30 p. m. of that day one J. C. Rhoades, who was a car repairer in the employ of the defendant, was instructed by one Ray Hamm, car inspector under whom plaintiff and said Rhoades were employed, to nail up a missing end door of a car containing freight in defendant's yards at Council Bluffs, Iowa. Pursuant to the instructions given, Rhoades procured some boards and tried to nail up this end door from the outside, but was unable to do so and informed Hamm of that fact; thereupon the latter told Rhoades to break the seal on the side door, enter the car, and nail up the end door from the inside, and after finishing the work to have plaintiff reseal the side door. These instructions were followed by Rhoades. After having nailed up the end door he tried to close the door through which he had entered, but on account of a defective hanger could not close it without assistance, so he went along the track a distance of four to six car lengths, where he found plaintiff checking the train, who assisted Rhoades in closing the door. Then, in pursuance of Hamm's instructions communicated to him by Rhoades, plaintiff undertook to seal the car, and while in the act of so doing he and Rhoades were arrested about 8 o'clock of that evening by Messrs. Hall and Burke; the former being described in the evidence as a special agent whose duty it was to safeguard the company's property, and from the evidence we conclude that his work was in the nature of that of a private detective for the defendant, the latter being a Special officer in the employ of the Chicago, Milwaukee & St. Paul Railway Company with a police officer's commission. These special agents or detectives took plaintiff and Rhoades to the freight depot, where the latter were questioned and then put them in jail, where they remained until about 10 o'clock the next morning.

The next day Hall consulted attorneys representing defendant at Council Bluffs in reference to the advisability of prosecuting plaintiff and Rhoades, and these attorneys advised such prosecution. Thereupon they drew up a complaint against plaintiff and Rhoades charging them with breaking and entering a railroad car contrary to the laws of the state of Iowa, which was filed in the superior court of Council Bluffs, Iowa; the judge of that court being an ex officio police judge and committing magistrate. They were arraigned in this court on October 23d, and at the request of defendant's representatives the case was continued until the following day. In the meantime Hall and the company's attorneys had taken steps toward a proceeding before the United States commissioner at Red Oak, Iowa, charging plaintiff and Rhoades with unlawfully breaking and entering a railroad car containing merchandise in interstate transit. And en the 24th day of October, 1914, these attorneys filed an affidavit and complaint before said commissioner, sworn to by. Hall, making such charges against the plaintiff and Rhoades. When the state case was called on said 24th day of October, 1914, in the superior court at Council Bluffs, Hall announced that he was going to prosecute plaintiff and Rhoades in a court where they had no "pull," meaning the federal court, and the proceedings before the superior court were not pursued by the company's representatives. On October 24, 1914, plaintiff and Rhoades waived preliminary examination before the United States commissioner and were bound over to the federal grand jury, giving bonds fixed by the commissioner. Thereafter they were indicted by the United States grand jury on the charge of conspiracy to violate an act prohibiting the stealing of freight, etc., from cars containing interstate shipments, and upon the trial of such charges in the United States District Court were acquitted. Thereafter they brought suits in the circuit court of Jackson county, Mo., for false imprisonment and malicious prosecution.

Plaintiff's petition was in three counts; the first count asking damages for false imprisonment, the second count asking damages for malicious prosecution before the superior court at Council Bluffs, and the third count for malicious prosecution before the United States District Court. The jury returned a verdict in the sum of $4,500 actual damages and $500 exemplary damages on the first count, and for $1,200 actual damages and $800 exemplary damages on the second count, and for $1.000 actual damages and $500 exemplary damages on the third count. Defendant filed a motion for a new trial, which was overruled as to the first and second counts and sustained as to the third count, and thereupon plaintiff dismissed his suit as to said third count. This appeal is from the verdict and judgment obtained on the first and second counts.

According to defendant's evidence, because of numerous depredations committed by thieves on defendant's property and that of the Chicago, Milwaukee & St. Paul Railway Company, Hall and Burke were making a special effort to guard the property, and at the time of these arrests they were engaged in watching for car robbers on defendant's premises and had hidden in the shadow of a sand pile, from which point they saw plaintiff and Rhoades take two boxes of prunes out of the car and then take them several feet away from the car in order to hide them, whereupon the arrests were made. Thereafter they took plaintiff and Rhoades, together with the boxes of prunes, to defendant's depot, where plaintiff and Rhoades stated before some employés of the defendant that they were guilty of stealing the merchandise. Plaintiff and Rhoades denied stealing the prunes and the making of the alleged damaging admissions.

It is the contention of the defendant that, instead of the proceedings in the superior court having been discontinued by its agents, the judge of that court found plaintiff and Rhoades guilty and turned them over to the federal authorities. This contention is based upon an entry or judgment contained in the records of that court. From an examination of this so-called judgment we are satisfied that it shows on its face that there was no intention to enter any judgment whatever against plaintiff and Rhoades. On its face it simply shows a form with blanks reserved for inserting material things necessary to a judgment with nearly all of the blank spaces unfilled, including most of those for dates. This alleged judgment concludes as follows: "____ It is considered, ordered, and adjudged that defendant ____ is ____ guilty as accused ____. Turned over to federal authorities." The blank before guilty is evidently for the purpose of inserting the word "not" in case it was found that defendants were found not guilty. The alleged judgment on its face shows that most of the blanks where material insertions were required were not filled in. This alleged judgment is so indefinite in its terms that it cannot be considered as a judgment. 1 Black on Judgments (2d Ed.) § 3. The deposition of the judge of the superior court was taken, and he testified that the final disposition of the case in that court was that it was reported to him that the case had been taken up to the federal court and there was nothing done in the superior court any more than that the case was discontinued. Defendant did not contradict this by anything except the alleged judgment. There is no showing that the superior court of Iowa had any authority to bind persons over to the "federal authorities," whatever that may mean.

It is the contention of the defendant that the indictment by the federal grand jury is prima facie evidence of the existence of probable cause. Such is true unless such prima facie case is overcome by evidence showing that the indictment was obtained by false or fraudulent testimony, or through improper means, or by evidence showing that defendant through its agents, notwithstanding the action of the grand jury, did not believe defendant in that case to be guilty. Sharpe v. Johnston, 76 Mo. 660; Peck v. Chouteau, 91 Mo. 138, 3 S. W. 577, 60 Am. Rep. 236; Firer v. Lowery, 59 Mo. App. 92; Wilkinson v. McGee, 265 Mo. 574, 178 S. W. 471.

It is the contention of the defendant that there is no evidence on the part of plaintiff to overcome the prima facie case made by the showing of the indictment; defendant claiming that there is no showing that defendant or any of its agents or employés appeared before the grand jury, at the time the indictment was returned or had anything whatever to do with the procurement of the same. We are unable to agree with this contention. The evidence shows that the attorneys for defendant advised the taking of the case to the United States court; that these attorneys prepared the information for the federal commissioner, which was sworn to by Hall; and that Hall was subpoenaed as a witness before the...