The Atchison v. Smith

• Decision Date: 10 December 1898
• Docket Number: 10737
• Citation: 60 Kan. 4,55 P. 272
• Court: Kansas Supreme Court
• Parties: THE ATCHISON, TOPEKA & SANTA FE RAILROAD COMPANY v. JAMES SMITH

55 P. 272

60 Kan. 4

THE ATCHISON, TOPEKA & SANTA FE RAILROAD COMPANY v. JAMES SMITH

No. 10737

Supreme Court of Kansas

December 10, 1898

Decided July, 1898.

Error from Jefferson district court; L. A. MYERS, judge.

Judgment reversed.

A. A Hurd, and Stambaugh & Hurd, for plaintiff in error.

Waters & Waters, and W. F. Gilluly, for defendant in error.

OPINION

ALLEN, J.:

This action was brought by James Smith against the railroad company to recover damages for alleged malicious prosecutions. The petition charges that on the 26th day of January, 1893, the defendant procured three complaints to be made by one Fritter, its agent at La Junta, Otero county Colorado, before a justice of the peace, charging the plaintiff with the crime of burglary and larceny in freight-cars on the defendant's railroad; that the plaintiff was arrested under warrants issued on these complaints, committed to jail, and that the prosecutions were afterwards dismissed by the prosecuting attorney; that after the discharge of the plaintiff from these prosecutions he was again arrested on four warrants issued by a justice of the peace of Las Animas county, Colorado, on complaints filed by E. B. Leonard, the agent of the defendant at Trinidad, acting under the defendant's direction, charging him with like burglaries and larcenies in Las Animas county; that these prosecutions were also terminated by the prosecuting officer who dismissed the cases; that on the 28th day of January, 1893, while the plaintiff was confined in the county jail of Otero county, the defendant wilfully and maliciously procured a search-warrant from a justice of the peace of Colfax county, New Mexico, and caused the premises of the plaintiff at Raton, N. M., to be searched for stolen property by the deputy sheriff of Colfax county. The petition alleges that all these prosecutions were malicious, without probable cause, and instituted and carried on by the defendant for the purpose of injuring him. A motion having been made and sustained requiring the plaintiff separately to state and number the several causes of action set up in the petition, the plaintiff amended by interlining, just preceding the prayer of the petition, the following:

"The plaintiff avers that he brings this suit as one cause of action; that he avers the fact to be that the defendant, actuated by a malicious intention and design to ruin the plaintiff, to cause him expense he could not bear, and to causelessly punish him, did perform and cause to be performed all the acts aforesaid, and that all said acts were taken by defendant in pursuance of said design originally formed."

A motion was made to dismiss the case on the ground that the plaintiff had failed to comply with the order to state and number his causes of action separately. This motion was overruled. After the overruling of a demurrer to the petition the defendant answered, denying generally the matters charged in the petition. On the 4th day of February, 1896, the case was called for trial, and the defendant asked a continuance on the ground that the issues had not been made up in time for trial at that term of court. This was refused and a jury was thereupon impaneled. The plaintiff offered in evidence certain of the papers and copies of the records in the cases prosecuted against him in Colorado, testified in his own behalf, and rested his case. A demurrer to the testimony was filed and overruled. The defendant offered the depositions of the district attorney of the district including Otero county, Colorado, of his deputy at La Junta, and of the district attorney of Las Animas county. The court, by its instructions, submitted the question of probable cause for the prosecution, as well as all questions of fact to the decision of the jury, and they returned a general verdict in favor of the plaintiff for $ 10,000 damages. A motion for a new trial having been made and overruled, the railroad company brings the case here for review.

The objection urged against the sufficiency of the petition on the ground that it states in one count a number of separate and distinct causes of action is not good. The plaintiff had a right to treat all the prosecutions as connected, instituted and carried on under a continuing purpose to injure him.

It is unnecessary to discuss the minor questions raised by counsel for the railroad company. The principal question decisive of this case is whether the prosecutions complained of were instituted without probable cause. This was submitted to the jury as a question of fact. As there was no substantial conflict in the testimony bearing on the question it should have been determined by the court as a matter of law. (Drumm v. Cessnum, 58 Kan. 331, 49 P. 78, and cases cited.) It appears from the plaintiff's own testimony that a large amount of property had been stolen from the cars of the railroad company, and that much of it was found in the house of Crotty, a conductor of a freight-train which was sometimes hauled by the engine in charge of the plaintiff as engineer. A detective named Landon had been put at work as a brakeman on the part of the road where property was being stolen, and some of the stolen property was found in Landon's house. Quite an exhibit of stolen property was brought into ...