Winegar v. Chicago, B. & Q. R. Co.

• Decision Date: 15 June 1942
• Docket Number: No. 20095.,20095.
• Court: Missouri Court of Appeals
• Parties: WINEGAR v. CHICAGO, B. & Q. R. CO. et al.

163 S.W.2d 357

WINEGAR v. CHICAGO, B. & Q. R. CO. et al.

No. 20095.

Kansas City Court of Appeals. Missouri.

June 15, 1942.

Appeal from Circuit Court, Jackson County; Allen C. Southern, Judge.

"Not to be published in State reports".

Action by Louis Winegar against the Chicago, Burlington & Quincy Railroad Company and another for wrongful and unlawful arrest and imprisonment and for malicious prosecution. The case was submitted to the jury on the first count of the petition only, and from a judgment for plaintiff, defendants appeal.

Reversed and remanded.

H. M. Langworthy and Wm. H. Hoffstot, Jr., both of Kansas City (Langworthy & Matz, of Kansas City, and J. A. Lydick, of St. Joseph, of counsel), for appellants.

Roach & Brenner and J. H. Greene, Jr., all of Kansas City, for respondent.

BOYER, Commissioner.

This action was instituted to recover both actual and punitive damages. The petition was framed in two counts; the first alleging wrongful and unlawful arrest and imprisonment and the second, malicious prosecution.

The defendants filed separate general denials to both counts of the petition, and further alleged as a defense to the first count that the arrest and detention of plaintiff were made and carried out solely and only by lawfully appointed police officials of Kansas City, Missouri, who had reason to believe and did believe that plaintiff had committed a violation of law, and that neither the arrest nor the detention of plaintiff was caused or brought about by the defendants or their agents; and for further defense to the second count of the petition, it was alleged that the complaint filed against plaintiff was signed and sworn to by a police official after consultation with the members of the prosecuting attorney's staff in Jackson County; that the complaint was filed on the advice and recommendation of an assistant prosecuting attorney; that the prosecution thereunder was by the prosecuting attorney and his assistants; and that the defendants did not cause or bring about the signing or filing of the complaint or the prosecution thereunder.

The trial covered a period of five days. The record of the proceeding is very large, containing evidence relative to the issues raised by both counts of the petition. At the close of plaintiff's evidence the defendants moved the court to require plaintiff to elect upon which count of the petition he would proceed. The court held the motion under advisement until the close of the case when it was sustained, and plaintiff then elected "to submit to the jury count one of his petition." The case was submitted upon instructions and the jury found the issues in favor of plaintiff and against both defendants and assessed actual and punitive damages. Judgment followed. Separate motions of the defendants for a new trial were filed and overruled and both defendants have duly appealed.

The errors assigned and treated in the brief of appellants pertain to the ruling of the court upon the separate demurrers of defendants to the evidence; the improper admission of evidence; and the refusal of defendants' proferred instructions.

Respondent complains that the assignments of error are insufficient; that they do not point out where in the record the action complained of occurred; and do not state why the court erred. The assignment that the court erred in overruling the demurrers is complete, and the very nature of the assignment calls for an examination of the entire record. Feinberg v. New York Life Ins. Co., 233 Mo.App. 707, 127 S.W.2d 82, loc.cit. 84, 85. The brief upon each point clearly and specifically states wherein appellants claim error was committed, with appropriate record citations to evidence admitted over defendants' objection. Appellants' statement of the case, assignments of error, and the brief afford a clear understanding of the issues in the case and the grounds upon which appellants seek reversal of the judgment. They are in substantial compliance with the requirements of the rules of court, and cannot be regarded as misleading the respondent because each and every proposition presented by appellants is fully and elaborately briefed and discussed by respondent's counsel in their brief. Under the situation thus presented the court would not be justified in refusing to consider the points raised on appeal.

Should the demurrers to the evidence under count one have been sustained? The entire record has been read and a statement of the evidence that is favorable to plaintiff's charge of false arrest and imprisonment is required. Before stating plaintiff's own testimony other facts should be given to aid an understanding of it.

The defendant, Martin, was an assistant special agent for defendant railroad company, charged in part with the protection of the company's property. He was registered as such special officer with the Board of Police Commissioners of Kansas City. On or about October 26, 1940, certain railroad iron and materials were stolen from the yard of the railroad company in North Kansas City. On that night another special agent for the company learned that someone was in the yard, and while driving his car into the yard discovered an old dark-colored automobile with a gray collapsible top, and three boys or young men in it starting to drive away. He attempted to block their road with his car, but they drove around him and escaped. A description of the car and the boys was circulated among the special officers, defendant Martin being one of them, and on October 29, Martin found what he thought corresponded to the description of the car with two boys in it named Howard Jackson and Donald Rainey. He talked with the boys and learned that another boy by the name of Harry Ross owned the car and was then in the American Royal building to apply for a job. Martin discovered in this car a can and rubber hose, and the two boys in the car admitted that they had been stealing gas from other cars for use in the car that they were in. One of the boys went to get Harry Ross who finally returned to the car and then Martin took Jackson and Rainey in his car and Ross drove his car to an office of the company nearby where Martin telephoned to the police department, reporting what he had discovered and to the effect that it was a matter for the police to look into. Shortly afterwards, two police officers named McCormack and Kritser appeared in a police car and took the three boys to the police station for investigation. After questioning for some time two of the boys, Jackson and Rainey, made oral admissions and confessions of stealing gas and railroad iron, and afterwards signed written statements that they and Ross on different occasions had stolen railroad iron from the yard in North Kansas City and hauled it away in the Ross car, and on different occasions sold it to a man at a place known as Jim's Junk Yard, located at 18th and Wabash in Kansas City, Missouri. The police inspector in charge of the case directed the two officers above named to go to this junk yard, examine the place, and bring in the operator for questioning. The two officers took Martin with them to identify the company's property if any could be found. It developed that a man by the name of Holliday owned and operated the junk yard. He was brought to the police station and denied any knowledge of the transaction complained of and suggested that they bring in the boys and let them see him and see whether they would say he was the man who bought the stolen property. Rainey and Jackson were brought to the presence of Holliday and both said he was not the man, and they then described the man to whom they had sold the material as being dark-complected, with scars on his neck or face. Officer McCormack remarked that the description of the man corresponded to that of Winegar whom he knew as a junk dealer at Jim's Junk Yard. Mr. Holliday was released and carried back to his place of business. The police inspector then directed McCormack and Kritser to find Winegar and bring him in. The next day, October 30, the two officers in a police car took Martin with them and went to the home of plaintiff in Kansas City, Missouri, and took Winegar to the inspector's office in the police station. Upon being questioned, Winegar denied all knowledge of the theft of iron or that he had bought or received it. The two boys, Jackson and Rainey, were then in the Detention Home. One of them was sick in bed and could not be brought to the police station to see Winegar. The inspector directed the two officers to take Winegar to the Detention Home so the boys could see him and say whether or not he was the man they had described as buying the property. Martin went with them. Upon seeing Winegar both of the boys said he was the man and signed statements to that effect. The officers then returned Winegar to the police station and the inspector ordered him to be "booked," and he was placed in jail where he remained until the next morning when the inspector directed the officers to take him to the prosecuting attorney's office. The officers did so and Martin went along at their request and furnished a description of the property that was stolen from the railroad yard which was requested by the prosecuting attorney. After consulting with the officers the prosecuting attorney in charge of the case ordered a complaint to be prepared charging plaintiff with receiving stolen property. It was prepared and officer McCormack signed it, and Winegar was taken before a justice of the peace where the officers left him. Shortly thereafter, Winegar furnished bond and was released on the 31st day of October. The case was set for hearing and continued from time to time, finally heard, and plaintiff was discharged on December 4, 1940.

In the meantime, the three boys had all been delivered to the authorities of Clay County. Jackson and Rainey were juvenile delinquents. Ross, who had denied all charges and refused to confess, was...