Walton Trust Co. v. Taylor

• Decision Date: 26 September 1924
• Docket Number: No. 6486.,6486.
• Citation: 2 F.2d 342
• Parties: WALTON TRUST CO. et al. v. TAYLOR.
• Court: U.S. Court of Appeals — Eighth Circuit

2 F.2d 342 (1924)

WALTON TRUST CO. et al. v. TAYLOR.

No. 6486.

Circuit Court of Appeals, Eighth Circuit.

September 26, 1924.

John H. Lucas, of Kansas City, Mo. (William C. Lucas, of Kansas City, Mo., on the brief), for plaintiffs in error.

Charles O. French, of Kansas City, Mo. (Henry M. Beardsley and John F. Cell, both of Kansas City, Mo., on the brief), for defendant in error.

Before SANBORN, Circuit Judge, and BOOTH and REEVES, District Judges.

BOOTH, District Judge.

This was an action by Taylor against Walton Trust Company, John B. Walton, and William E. Walton for damages for malicious prosecution, false arrest, and false imprisonment. The complaint alleged that the defendants falsely, maliciously, and without probable cause procured the plaintiff to be charged before a justice of the peace of Bates county, Mo., on a written complaint filed with the justice of the peace, with having, about January 3, 1914, forged and uttered a deed of trust in the name and as the act of one William P. Winn, to secure a promissory note purporting to have been executed by Winn to the Walton Trust Company; that the defendants maliciously and without probable cause procured plaintiff to be arrested, imprisoned, brought before said justice of the peace, and bound over to the circuit court of said county on the charge of forgery; that on the trial in said circuit court plaintiff was found not guilty by the jury and was thereupon discharged. A second count of the complaint alleged false arrest and false imprisonment of plaintiff at the procurement of the defendants in connection with the same charge of forgery. Actual and punitive damages were asked on each count. The separate answer of J. B. Walton contained a general denial, and in addition it alleged that the prosecution of plaintiff had been commenced only after consultation with an attorney and upon his advice. The answer of the other defendants was a general denial.

At the close of the evidence the court, on motion of the defendants, ordered the plaintiff to elect upon which count he would stand, and plaintiff chose the count for malicious prosecution. A verdict was returned for both actual and punitive damages. Writ of error has brought the case to this court. The parties will be designated as in the court below.

There were seven assignments of error filed. The brief of defendants contains no proper "specification of the errors relied upon," as required by subdivision second of paragraph 2 of rule 24 of this court, and not all of the questions discussed in their brief are covered by the assignment of errors. Under these circumstances, our discussion may not be so broad as the arguments of counsel.

1. It is contended that the court erred in overruling defendants' objection to the introduction of any evidence, on the ground that the complaint did not state facts sufficient to constitute a cause of action. Defendants in their brief have not pointed out where in the record such objection was made and overruled; but, if there was such a ruling, it was clearly right. It is settled in this circuit that such an objection is not the proper way of testing the sufficiency of the complaint, and will not be entertained for that purpose. United, etc., Cement Co. v. Harvey, 216 F. 316, 132 C. C. A. 460.

2. There is considerable discussion in defendants' brief of alleged errors (a) in the admission and (b) in the exclusion of evidence. Questions of neither class can properly be considered here. The assignment of error No. VI, relating to the former class, wholly fails to comply with rule 11 of this court, and the questions involved are not of such importance as to persuade us to consider them despite the nonobservance of the rule. As to the latter class, there is no assignment of error whatever.

3. Another assignment of error challenges the overruling of the demurrer to the evidence, at the close of plaintiff's case. This assignment is not available, inasmuch as the demurrer was waived by the introduction of evidence by the defendants. Crowell Bros. v. Panhandle Co. (C. C. A.) 271 F. 129.

4. Error is alleged in overruling motion for a directed verdict at the close of all the testimony. This requires a consideration of the evidence in the case. It was shown by undisputed testimony that, in connection with a certain mortgage loan made by the defendant company at its office in Butler, Bates county, Mo., forgery of the mortgage papers had been committed, in the signature of William P. Winn. This was in January, 1914. At the time of the transaction, the forger was in the presence of J. B. Walton and Wm. Choate, an employé, for several hours; he was also in the presence of and seen by Allen, Nix, and Ewin, other employés of defendants. The forgery was discovered in January, 1915, when notice for the payment of interest was sent to the real owner of the land, and he repudiated the whole mortgage loan transaction. In February, 1915, plaintiff, Taylor, who was a stranger to defendants, wrote a letter to defendant company on a business matter. The letter was written on the stationery of the Snyderhoff Hotel at Kansas City. W. E. Walton, one of the officers of defendant company, compared the handwriting of the letter with that of the Winn mortgage papers, and concluded that both were by the same person. He asked a number of other persons for their opinions, and they concurred in his conclusion. Thereafter he consulted Mr. Chastain, the prosecuting attorney of Bates county, and had several talks with him in regard to the matter.

There was also evidence to the effect that W. E. Walton went to the Snyderhoff Hotel, saw the proprietor and his wife, and learned that they both knew Taylor. They told him that they thought he could find Taylor at a certain flat building which they said Taylor owned, and to which they directed him. Walton took a street car, rode by the place, but went home without making any inquiries. There was also evidence to the effect that, prior to the arrest of Taylor, the defendants had ascertained that the real forger had deposited the draft received from the Walton Trust Company in a bank at St. Louis, and that he had at Little Rock, Ark., issued a check against the deposit, signed W. P. Winn, although he was known in Little Rock as Charles W. Bean.

There was also evidence tending to establish the following facts: On August 28, 1915, as defendant J. B. Walton was passing along one of the streets in Kansas City, Mo., he saw a man that he thought was the one who had made the mortgage papers. He turned and followed the man some distance, and into an office building. The man went into the office of the Ennis Real Estate Company. Walton watched him from the lobby. When the man left, Walton stepped into the office and inquired the man's name. He was told it was N. L. Taylor. Walton immediately turned and went out and followed the man again, a short distance, but finally quit. Without making further inquiry, Walton telephoned to the prosecuting attorney that he had seen Winn. On reaching Butler that night, Walton told the prosecuting attorney that he had seen Taylor in Kansas City, and that he was the man who had signed the papers as W. P. Winn. Between the time when Walton telephoned from Kansas City and his arrival at Butler, a warrant for arrest had been procured from Justice of the Peace Catron, without the filing of a complaint. On his arrival at Butler, Walton signed the affidavit of complaint against Taylor; two days later this was filed with the justice. August 30th Walton took the warrant to Kansas City and gave it to the chief of police; Taylor was arrested the same day and lodged in jail.

Meanwhile, on August 29th, Walton had instructed Choate and Ewin to come to Kansas City "to identify Taylor, the man they had known as Winn." They came, and, after he had been arrested, identified him as the man, Winn, who had executed the mortgage papers. At the time of his arrest, Taylor protested his innocence, and later at the jail asked that a number of business men in Kansas City, whom he mentioned as friends and acquaintances, be telephoned to, so that they might come to the jail and identify him. This request was refused. J. B. Walton was present at the time. While at the jail, a photograph of Taylor was taken, and also his measurements under the Bertillon system. He was treated in a humiliating manner, both by the police officers and by Walton. Finally, in the afternoon of August 30th, he was taken to Butler, in Bates county, and there lodged in jail.

The next day a civil suit, accompanied by an attachment of property, was commenced by defendant Walton Trust Company against Taylor. A few days later a hearing was had before Justice of the Peace Catron. J. B. Walton, Choate, Nix, and Ewin testified at the hearing that Taylor was the man who, under the name of Winn, had negotiated the loan from Walton Trust Company and executed the mortgage papers.

Taylor, under advice of counsel, did not testify, for the reason, as testified by the counsel, that the hearing was not conducted in a proper and impartial manner, and Taylor was in a state of mental collapse. Taylor was bound over to the circuit court for trial, under $5,000 bond. The trial was reached, and the prosecuting attorney, at the close of the case, announced that on the evidence adduced, he would not ask for a verdict of guilty. A verdict of not guilty was accordingly returned.

The present suit was thereupon brought by Taylor. Upon the trial it was again sought to be proved that Taylor was in fact the man who executed the forged Winn papers. Witnesses again compared the forged writings with admittedly genuine writing of Taylor, and reached the conclusion that they were written by the same person; again J. B. Walton, Choate, Nix, and Ewin identified Taylor as the man who had negotiated the Winn loan and signed the forged signature. But there was also abundant evidence tending to show that Taylor was, and for...