Thompson v. St. Louis-San Francisco Ry. Co.

• Decision Date: 03 March 1928
• Docket Number: No. 4314.,4314.
• Citation: 3 S.W.2d 1033
• Parties: THOMPSON v. ST. LOUIS-SAN FRANCISCO RY. CO.
• Court: Missouri Court of Appeals

3 S.W.2d 1033

THOMPSON v. ST. LOUIS-SAN FRANCISCO RY. CO.

No. 4314.

Springfield Court of Appeals. Missouri.

March 3, 1928.

Appeal from Circuit Court, Butler County; Chas. L. Ferguson, Judge.

Action by Joe L. Thompson against the St. Louis-San Francisco Railway Company. Judgment for plaintiff, and defendant appeals. Affirmed on condition that plaintiff remit a portion of damages allowed; otherwise reversed and remanded.

E. T. Miller, of St. Louis, and Ward & Reeves, of Caruthersville, for appellant.

Smith & Zimmerman, of Kennett, for respondent.

COX, P. J.

Action for damages for unlawful arrest and imprisonment. Trial by jury. Verdict for plaintiff for $500 actual damages and $2,000 punitive damages. Judgment entered accordingly, and defendant appealed.

The petition was in two counts based upon two arrests. The jury found for defendant on the second count, so that count is out of the case. The first count, on which the verdict for plaintiff was returned, alleged:

That on or about the 7th day of May, 1925, "the defendant company, acting through its duly authorized agents and servants who were acting within the scope of their authority at the time, did, without any warrant or other legal process and without probable cause and without right or authority so to do, falsely, wantonly maliciously, illegally, and unlawfully cause the constable of Holcomb township to arrest, detain, and imprison plaintiff against his will for a period of several hours, and did on said date assist the said constable of Holcomb township in making said arrest and in detaining plaintiff as aforesaid. * * * That he was carried to Holcomb and detained several hours, then turned loose. That because of said arrest and detention he was greatly humiliated and disgraced in the eyes of his relatives and friends, and his reputation for honesty and fair dealing in the community in which he lives had been greatly damaged and injured, to his damage in the sum of $2,500, for which he asks judgment."

This is followed by a prayer for punitive damages in the sum of $2,500 because of the wanton, malicious, and unlawful acts of defendant's agents and servants as aforesaid.

The answer is a general denial and also an allegation that on or about May 2, 1925, some person or persons, then unknown to defendant, broke into one of defendant's box cars standing on its railroad track at Gibson in Dunklin county, Mo., and stole and took therefrom cigarettes, tobacco, and other merchandise of value; that shortly thereafter, defendant's agents undertook and entered upon an investigation to ascertain the guilty parties, and that this investigation was carried on in conjunction with the constable of the township in which the crime was committed, with the result that some persons were arrested for said alleged crime; that after some person had been arrested, the plaintiff was also, at the instance of the constable and upon his own initiative, detained or held for the space of one or two hours, but the defendant and its agents did not so hold or detain plaintiff for any length of time; that the said detention of plaintiff was in good faith and without any malice or ill will toward the plaintiff by either the constable or the agents of defendant; that said detention of plaintiff was in good faith and for the purpose of making a further investigation and of ascertaining whether or not he was one of the guilty parties, and that the cause of plaintiff's detention was for probable cause and because he was believed to be, and with reasonable ground for said belief, one of the guilty parties, in the breaking into of said car and stealing therefrom.

The reply was a general denial.

A demurrer to the evidence was filed at the close of plaintiff's case and again at the close of the whole case, and we shall consider that question first as to the recovery of actual damages. It will be seen from the answer of defendant that it, in effect, admits that the constable arrested and detained plaintiff for one or two hours, and then asserts that the constable did this on his own initiative and defendant's agents did not hold or detain plaintiff for any length of time; that the detention of plaintiff was in good faith, without malice, and for the purpose of making a further investigation with a view to determine whether or not plaintiff was one of the parties guilty of burglarizing the box car of defendant, and that it was all done upon the belief, based on reasonable grounds, that he was guilty.

It was practically conceded at the trial that the box car of defendant had been burglarized by somebody. It is also conceded that the arrest of plaintiff, if made, was made without a warrant being issued for his arrest.

The liability of defendant depends upon whether its agent, Jesse Johnson, assisted the constable in any way in arresting and detaining plaintiff, and whether such arrest and detention was based upon reasonable grounds to believe plaintiff to be guilty of participating in the burglary of the box car. Relative to the fact of his arrest and detention and the parties responsible for it, the plaintiff testified as follows:

"I was arrested about 5:30 or 6 o'clock in the afternoon in the street of Gibson. The constable told me to get into the car; that they wanted me. That was in Jesse Johnson's presence. Jesse Johnson, A. A. Davidson, and Clyde Murphy were all present when I was taken in charge. Clyde Murphy was accused of robbing the box car. We were taken in charge on the streets of Gibson. A. A. Davidson was constable of Holcomb township, and Jesse Johnson, the special agent of the Frisco, was with him at the time I was arrested. They got in the car and sat down in the rear with us. I rode in the back seat with Clyde Murphy and Jesse Johnson, and A. A. Davidson rode in the front seat. They took us to Holcomb. That is about 2½ miles from Gibson, and when we got to Holcomb they took us before John Thompson, justice of the peace. There was no warrant served on us, but they kept me there about one hour before they let me go home. Jesse Johnson, the special agent of the Frisco, had charge of us down there, not the constable, and we were there something like an hour. Then they got the Lonnis boy, and he told who it was into it, and the constable then told me I was free and that I could go home. Jesse Johnson had me in charge at that time. He said that there was nothing against me and that I could go home."

On cross-examination he said:

"Before I got into the car Boss Davidson said, `You are under arrest,' but I didn't hear Jesse Johnson say anything at all until after I got into the car, and he then said if we didn't tell what we knew about it he would take us to jail and lock us up; but I told him I didn't know anything about it."

In relating what took place after they arrived at Holcomb, he said:

"I was sitting in the seat there. We were all sitting in the front seat there. Jesse Johnson told us to stay around there, and he would not let us go out of the room. He just told us to stay inside, and we stayed in there 30 or 40 minutes. Nobody mistreated me, only they kept us inside there. I told him before we got down there that I was sick. I told them that I was just out of the hospital and was not able to be out that way. I told that to Boss Davidson, the constable, and to Jesse Johnson, the special agent of the Frisco. I told Davidson that I was sick, and he said he could not help it; that he was acting under the authority of these other men."

This evidence clearly made a case for the jury on the question of plaintiff's arrest and detention by the constable and the participation therein of Jesse Johnson, the special agent of defendant. The answer of defendant alleges that its box car was burglarized, and that shortly thereafter the agents of defendant in conjunction with the constable of the township instituted and carried on an investigation to try to ascertain the guilty parties, and that in the course of that investigation plaintiff was arrested by the constable; but denied that defendant's agents were responsible therefor. As stated, the evidence for plaintiff tended to show that defendant's agent did participate in the arrest and detention of plaintiff. The answer having admitted that the arrest and detention was made in the course of an investigation in which it was sought to determine who had burglarized the box car, it follows that defendant was responsible for what was done by its special agents in prosecuting that investigation. Whiteaker v. R. R., 252 Mo. 438, 458, 160 S. W. 1014; Wright v. Automobile Gasoline Co. (Mo. Sup.) 250 S. W. 368, 372; Humphreys v. St. Louis-San Francisco Ry. Co. (Mo. App.) 286 S. W. 738, 741. The demurrers of defendant to the evidence as to actual damages were properly overruled.

Error is assigned in the admission by the court of evidence in chief on part of plaintiff that prior to his arrest his general reputation in the neighborhood in which he lived was good for honesty and fair dealing. To sustain appellant's contention, we are cited to the case of Humphreys v. St. Louis-San Francisco Ry. Co. (Mo. App.) 286 S. W. 738, 743. That case is clearly distinguishable from this on the issues involved and the facts attending the arrest. In that case injury to reputation was not alleged and punitive damages not asked. We there held that the general rule applied that since the reputation or character of plaintiff was not attacked by defendant, evidence of plaintiff's good reputation was not admissible in this case injury to reputation and personal humiliation are alleged and punitive damages asked. In that case the arrest occurred at a place remote from the place of residence of plaintiff, while in this case the arrest, if made, occurred in the immediate neighborhood of plaintiff's residence. Both the allegations of the petition and the facts and circumstances attending the arrest are different in this case from the Humphreys Case and...