*1 Cor Company, Railroad Missouri-Kansas-Texas W. G. Polk v. 138. (2d) S. W. Appellant. poration, Two, 1937. December Division *2 Montgomery, <& Hoffman, Martin Martin Mont- W. H. Carl S. appellant. gomery for *3 Payne Crouch, H. Ratner. and Clarence Haynes, & T. N. Crouch
n (cid:127)C.Chilcott respondent. *4 petition The COOLEY, prosecution. malicious C. Action for being imprisonment, the originally counts, in two false the first plaintiff’s the close of for malicious At second he would stand. required to on which count evidence he was elect He second count. There verdict elected stand $20,000 punitive judgment $2500 actual and appealed. damages, the defendant alleged prosecution malicious city Kansas. It Parsons, County, in the in Labette agents prosecuted the instance of and servants
was initiated and at company, scope of their em acting within the defendant railroad probable. malicious ployment. If their acts were and without petition sufficiently states a' the. is liable. Plaintiff’s pleaded general denial, answer, cause of action. after a Defendant’s felony, declaring degree, a burlary a statute of the second Kansas freight express com to break into car to steal or to with intent felony therein; agents arrest any mit who caused its guilty such had reasonable cause to believe him offense; all made full and true disclosure of the facts prosecuting attorney, plain who advised them that guilty; tiff was and that was instituted with the and advice counsel of said officer. following: to show the
Plaintiff’s evidence tended Parsons, yards Defendant those here maintained extensive switch being yards, known north embraced three subdivisions, west, yards, respectively. east called the and Klondike yards northwesterly southeasterly The leads for these run in a northerly leads direction. The lateral or off classification tracks run yard paralleling, each other. The are farthest west tracks consecutively, 1, etc., east 3, and are numbered from northwest west, are referred in the as west west etc. yard just are yard tracks the east of those in the west east *5 yard manner. east numbered like The Klondike is 'east of the yard. yard classification, storage The west mak- used for and for ing up trains, two local known as locals. Joplin the Cherokee and making 3 up Track west was used the Cherokee local.
1218 his and arrest As to the circumstances following mainly testimony, own was to the
ease on which rests his effect: employed by defendant since was,
He and had been reported duty for night On the at eleven- switchman. he duties, p. man,” field his thirty position “long m. His space being to room others, to or among keep himself informed crew switching work was be available on tracks where to done up. engaged in break- were made His crew was where trains to and yard, freight purposes east of classification ing up trains two Joplin locals. The up to make Cherokee and cabooses and was also 5 trains on west 6. When latter were set out tracks and yard nearing completion plaintiff work of crew in the east yard previously “kicked went the west see whether into to some cars 2 room in” on west the lead track had cleared and whether line making up the locals. For purpose, next 'the cabooses 2 duty, Look- he north between tracks west and 3. with his walked a 5. ing 3 and on on 4 he saw caboose track between cars tracks identify belonged locals it, determine if it order one up to be and made and ascertain whether was room there between over examine, lead for the balance of the local he climb- went ing couplings over or the thereof on he cars tracks west and 4. As between couplings, climbed over the cars on track electric out, jolt lantern jar went due some and he could not make Arriving work. on identify at the track 5 lit match caboose he belonged caboose, ascertaining that it Cherokee local. He walking climbed back over an tank car on track and oil started engine south—toward the lead track on which the switch work- ing, men, when tracks and confronted three —between pistols shotgun, armed with' who him, claiming arrested they had seen him break enter a freight car on one of defend- William, yard. ant’s switch tracks in the west These three men were D. F. Baxley, brothers, special agents Lester and employees developed It defendant. from had there prior burglaries been several yards cars in defendant’s Baxleys, on the night in question, were lookout another possible burglary. Baxleys, taking time of into custody, accused having him of broken car, and entered the mer- contained had sealed, stating chandise and been watching been and had him seen do Plaintiff so. then at all times thereafter stoutly having denied done so. Plaintiff was taken the peace, before charged, upon complaint signed by William Baxley, felony with the bur- glary degree. in the second nothing Plaintiff’s home searched, *6 incriminating being given preliminary found. He was a hearing .be- justice, Baxleys at which fore testified. Their testimony to the effect plaintiff that had seen break enter car. and. true, If it showed for. the arrest and They similarly testified the trial of this ease. Plaintiff, at the at. ease, testimony trial of this Baxleys testified that said false, dispute by resolved plaintiff’s in favor of verdict —a the. jury. by justice Plaintiff was, peace, August of on court, bound over to the district to answer such information might county attorney. be filed From the time ar- of his rest, August 14th, until his preliminary examination, Aug- and until 26th, thereafter, ust he was county jail, being confined in the unable to make bond. made He bond and released thereunder on Au- gust According testimony jail 26th. filthy to his and unsani- tary subjected great and he was hardships therein. prosecuting attorney (county attorney) failed refused and. against
file an plaintiff. information the district court He filed court, pursuant to a statute, Kansas written of.his statement action, specifically such which will be referred more Upon justice application to hereafter. plaintiff’s record, February 22, an order of 1934, dismissing entered on and discharging plaintiff the cause bondsmen. order approved prosecuting attorney. concurred stands It the prosecution admitted that had terminated favor be- fore the facts, necessary, institution of this suit. Further will be stated in the of the opinion. course
Bespondent appeal has here a motion filed be dismiss alleged appellant’s cause of insufficiency abstract of record and ground appellant’s the further is statement facts in its brief required by not the “fair and concise” statement our rules. The complaint toas the abstract seems be that it omits some of the evi portions. greatly dence too Bespondent condenses other has abstract, an additional purpose filed ing not however for the supply alleged appellant’s only deficiencies in abstract but to dem onstrate that such To illustrate, pointed exist. is out deficiencies wholly appellant testimony abstract (given by failed to depositions) witnesses, Foreum, of two peace, attorney. Bosenstahl, prosecuting sufficiently appears It testimony only went Foreum’s identification of his record or objection entries. These were docket introduced evidence without authenticity.. and with raised as to their Bosenstahl’s deposition only document, identified certain Exhibit B court, stating filed in the district his reasons for filing criminal court. authenticity document, also, was treated as a fact conceded at the trial. It identifica- proper lack of ground of objected to but not on the insufficient identification as to appeal made on point tion. No or documents. authenticity any of said records proof lack of exceptions contained says condensation, respondent bill As *7 202 printed contains Appellant’s abstract pages. 672 typewritten narrative testimony and stated condensed pages. of is Much necessary an under- seemingly deemed appellant Where form. out set evidence is points urged for reversal the standing of the sufficiency of the question of a If had here haee verba. we we verdict sustain'the or to jury a for to make case there is But insufficient. might appellant’s abstract have to hold challenge Appellant does not appeal. question raised on this such ap- requires an sufficiency Our Rule of the evidence. neces- much of the record is set forth “so abstract shall pellant’s understanding questions presented of all the complete to a sary narrative be a witnesses the evidence of and that decision” complete necessary ato except questions and answers form when of testimony. consideration understanding After careful appellant’s cited, opinion that are of many of the cases we necessary sufficiently for determi- the record facts presents abstract conten- urged reversal, except, possibly, the points of the nation excessive, view of question which in our is tion that verdict —a case, we reach. shall not opinion appellant’s brief we are As the statement of facts in long justify detailed as to not so statement remedy appeal. The motion dismiss drastic of dismissal of appeal is overruled. the merits-. Of duty prosecuting A at makes it the statute Kansas torney “inquire preliminary into all cases of examinations” where recog alleged jail placed offender has committed to under been . . . nizance, attorney “and if the determine prosecuting shall ought filed, information clerk an he shall file with the reasons, (district) containing his writing a statement law, filing in fact and in for not an information in such case.” The attorney prosecuting filed with the clerk of the district court such statement, explanatory of his an declination to file information and. plaintiff. Exhibit B 1 above referred to It was omitting caption signature, reads as follows: Attorney’s
“County Information. Reason Not Filina’ day August, 1933, “On the 14th W. G. Polk was arrested Baxley Baxley, Baxley L. R. D. F. and William in the North officers signed yards complaint Two a. Katy about m. One of the a officers burglary charging an Polk with of M-K-T ear. box they watching “The testified that were a car particular officers car, light up out and they a walk turn his saw man and that light box inside the car. open car and saw they heard the door a man door close and saw the box car minute heard about from several feet get of the ear. the man had walked out After G. Polk. him W. car, the officers arrested him and identified he was duty was on the time “W. G. Polk was switchman and arrested. matte1", I hearing
“After statements witnesses in guilty Polk was that W. G. a conviction. a Warrant Consequently, evidence to obtain sufficient day August 14th for his arrest. was issued “Thereafter, reported De- this matter to the United States partment freight above referred of Justice for the reason that the ear ready shipment. for inter-state to was investigator Investigation to Par-
“An from the Bureau of came investigated report with the United sons and this matter and filed Department Department States of Justice. The United States *8 County Attorney’s Justice then informed the office the facts that prosecution. the case were not a Government sufficient for nothing to the fact that was taken from box that “Due the ear and duty W. was G. Polk was switchman at the time the car as into, broken is burglary this case case and it ordinary is unlike the Attorney’s County the of the more evidence office that required in a case kind. of this County case,
“Since issuance of the At- Warrant this torney’s gone very thoroughly office has has into this matter and County written statements from all on file in the At- the witnesses torney’s office. County Attorney’s reasons,
“For the above feel did not office consequently that conviction could be had in this matter did against file an not information in the W. G. Polk.” District Court objec- Said statement was over admitted tion, contending legitimate only purpose defendant that the the state- prose- ment could have in case be show criminal would to that the favor, admitted, cution had in plaintiff’s terminated which fact was among that, reasons, hearsay other as stated the statement was defendant, to statement, was a sworn oppor- not was made without tunity cross-examination, contained matter extraneous to the is- sues on prejudicial defendant, trial and was etc. further Without may objection detail it that stated was sufficient. clearly
We think the prejudicial admission of B 1 said Exhibit again and reversible error. Before said exhibit was offered and when it record, binding offered defendant admitted of admission —an upon it, prosecution finally definitely criminal had —that plaintiff’s longer any terminated favor and that there no or docket The record against plaintiff. pending
criminal February entry date justice peace, made under of the written showing, with objection, was introduced without dis- attorney, prosecution approval of the prosecuting discharged. were bondsmen missed and defendant and his isMuch district court. over to the after had been bound justice peace not -whether or said in briefs of counsel as to unnecessary deem jurisdiction to the case. still had dismiss We Exhibit when question because authorities on this bearing discuss merely would admitted, that witnesses B 1 was offered dismissed binding prosecution had been testify fact, that the but as longer pro- no criminal any there was in the district court and that against plaintiff. admissions ceeding anywhere Such pending conclusively, against defendant, established fact as favor the institution plaintiff’s before had terminated necessary suit, concededly maintenance of this fact—a jurisdiction to action. If the still had having plaintiff over to the district case after bound the dismiss the entry 1934, effectually accomplished February 22, his record result, according plain- be mentioned here that terminating petition tiff’s that order of dismissal stands dismissal, be effective On hand if the other court, de- prosecution, and to terminate to be in the district had contingency made. it had been so either fendant admitted that plain- defendant’s admission terminated unconditional, and, defendant, tiff’s favor full con- clusive of that fact as it.
Now, having formally conclusively fact ad- been thus record, introduce at- mitted of need to the prosecuting torney’s statement or- consent of his reasons for dismissal *9 thereto. an-
When this was at and defendant offered the trial terminated, prosecution that the nounced it admitted that had indicated, take we have counsel said "we don’t have to prove the admissions of defendant. We can it in our own man- the gone If admission to the of only ner.” had extent admitting testify that certain witnesses to certain would facts tend- leaving jury ing prosecution, to show for dismissal the weight any testimony, of to determine the such or if there been had dispute plaintiff prove as to the fact which had to he doubtless would tending prove have been entitled introduce all evidence the admission the disputed fact. But here defendant’s took fact of the- ' dispute. the of the realm of suffi- prosecution out It termination of for ciently conclusively purposes established that fact all of and case. the entirely, to largely, not almost case simmered down if guiliy question plaintiff
the of whether of crime or not the charged against which had been He had not him. testified that he testifying broken and the at car, Baxleys, that entered and and given had preliminary hearing so, that done had false he three perjured testimony, resulting being his over. The bound Baxleys, unimpeached, all saw testified him break that testimony true, jury, the car. enter If that for the —a n —the situation not without cause. attorney’s B prosecuting statement, Exhibit said cannot indicating held to statement, have been harmless. That while that prosecuting attorney first, Bax- at of had the statement thought leys, plaintiff conclusion, guilty,' final after also reflected his thorough investigation securing “all written statements (what witnesses?) not felt that a conviction could witnesses” — —he jury regarded by be had. Would not that official statement be investigation officer, seeing after indicating state- witnesses, gravely ments of other had come to at if not least doubt Baxleys? to disbelieve the truthfulness of the
Moreover, prosecuting said exhibit had indicates that attorney may witnesses,” persons, have had statements other “all says, investigation by an and that had been United made Department reported him, indicating States Justice and department apparent deemed the evidence insufficient. is It attorney’s prosecuting mat- final conclusion was based ters, partly least, de hors case.- the record That it upon by good question. reached and acted him faith dowe not sincerity jury That the we his official action believed thought also well believe—which adds force to his but opinion, his proceeding prosecution, stated with reasons strongly must have tended in the jury minds of the discredit the Baxleys, throwing scale, thus into the favor of attorney’s defendant, weight of the prosecuting statement conclusions. Juris, Corpus
In 38 section “While page is said: authority contrary, apparently according there some to the to the weight given authority, justice judgment discharging any not admissible for purpose. legal judgment . . . Plaintiff to the is entitled effect nothing more.” Telephone v. Island Pac. Empire Telegraph Co.,
Aldrich & 264, 265, an action malicious because a crim magistrate inal filed in a court.
discharged trial plaintiff. prosecution At the of the malicious the prove plaintiff permitted purported the was be the suit what 1224 refusing the to hold by given justice peace of the Supreme Washington charge. The plaintiff for trial on the criminal said, 113 Pac. l. 265: Court c. was competent. As evidence “T-his was also error. The was Ga. 67 Keller, Georgia v. by Anderson Superior
said
Court
trial
question:
58,
upon a
‘The
passing
similar
judgment of
The
cause.
probable
was malice
and the want
any reason
admissible,
discharging
but
magistrate
plaintiff was
given
admitted as
judgment
have been
for that
should not
nothing
legal effect, but
to its
plaintiff
in this case. The
was entitled
Dempsey v.
following eases:
To
are the
more.’
the same effect
193; Chap
Rep.
372,
11 Am. St.
App. 269, 11 S. W.
Tex.
State
Corscadden,
(
In Martin v. 86 Pac. a Corscadden of peace’s entry, Casey Sevatson, supra, of the docket in v. similar to that incompetent, adjudication was held a prior “whether offered as of trial, expression justice on issue of anas there support holding. on.” in Numerous of cases cited and, think, In with the authorities foregoing sustaining line in we principle see, also, point, following: our conclusion on this Sweeney Perney (Kan.), judgment v. 19 Pac. acquittal of com petent to establish fact had terminated but for no portion finding complaint purpose,- other thereof was ma probable inadmissible; licious and without cause Farwell v. Laird finding justice (Kan.), peace 49 Pac. that prosecution inadmissible; was malicious Dempsey v. without (Tex. App.), 372, testimony State 11 S. W. discharged “because, opinion, accused his charge”
not sufficient evidence to sustain the inadmissible and cal defendant'; injure Young (Iowa), culated to Dickson v. et al. 210, opinion Judge,
200 N. W. giving of United State reasons District judgment overruling denying motion in arrest hew trial suit; incompetent subsequent malicious v. Herzog Kincade, (2d) 210, judge dismissing 66 Fed. oral remarks ease, stating admissible, only purpose his of record reasons, not of dismissal termination of being establish deciding point
In so we have merits not over urgently respondent contention looked the advanced that said point sufficiently appellant’s present is not stated brief our consideration. says: “Assignments of Error” appellant formal its admitting evidence, erred in
“The court over ob- jections exceptions, B-l, same being Plaintiff’s Exhibit attorney his county failing file statement an in the court.” information district assignment II, appears, caption numbered under and Authorities” thus:
“Points admitting
“The court erred in evidence the statement of the county attorney dismissing setting forth reasons for the crim- prosecution.” inal ‘‘ ” Following assignment under Authorities is Points and. list of caption “Argument,” paragraph cited authorities. Under the II, appel- point, setting numbered discussion of this forth there *12 claiming ruling, lant’s for in reasons error the reference court’s pages ruling of the abstract where said B 1 and court’s Exhibit objection and cases appellant’s appear, thereto of and discussion relied on. ‘‘ Respondent appellant Points asserts that have should stated under charging specified and Authorities”. its error and reasons ground objection ob- of made to the exhibit. We admission of said respondent’s appellant’s. serve that brief follows the same method as says only, Exhibit Under “Points and Authorities” he “Plaintiff’s B properly evidence,” 1 was by in list of long admitted followed cases. statement, giving He on dis- elaborates this his reasons and authorities, “Argument.” cussion of under the of would title It hardly position complain seem that he is appellant’s in of brief. waiving But circumstance, appellant required this under since “distinctly allege” our in rules his brief the errors committed order, trial statement, in “a of court and addition in numerical points on, (Rule relied with of authorities citation thereunder” 15), treating respondent’s challenging sufficiency and brief appellant’s point, respondent’s brief this we contention should be disallowed. “Assignment appellant charges
In of Errors” ad- its error in the B 1, describing mission of it. and Exhibit Under “Points Authori- charges ties” he error in admission of “the statement county setting attorney dismissing forth his reasons criminal ’’ clearly B prosecution, meaning said Exhibit 1. There no other county attorney admitted. caption “statement” Under the similarly “Argument,” paragraph, appropri- numbered we find pages ate reference to the abstract where com- matter appears plained of under “Points and Authorities” in the record. difficulty experienced uncertainty understanding We no have sought point appellant present nor the its com- plaint. Co., 246, 971, 208 Mo.
In
v. Catherine Lead
Collier
S. W.
assignment
separate
but under “Points
errors
appellant
admitting
“1.
said:
Authorities”
court erred
partition
Desloge, through
deed
Firmin
sheriff’s
were
“points,”
claim title.” There
three other
whom defendants
said,
259,
208 Mo.
eqally general.
l. c.
“Much argument Rule 15 of depend under court. Each brief ahd must individuality largely prepares makes person or- who them, all and no can be which each fixed standard erected *13 arguments briefs and be or so there to measured tested. Just compliance objection is a substantial with no can Rule success- ’’ argument. fully to be made form of brief or the order of the case, outlined, In it the circumstances of the as above we.think rigid too construction rules to would be harsh and of our hold sufficiently to appellant’s point presented said be reviewable. is not points In a possible view of trial few other should be second mentioned.
In Baxleys, plain cross-examining witnesses, defendant’s counsel was permitted questions tiff's read and numerous answers supposed propounded have been them .answered preliminary they admitted, Some others examination. answers they having they they denied made and as to some did others said began not plaintiff’s remember. When counsel cross-examination this objected reading from had that the document counsel was transcript not been identified and not admitted of to be a was shown justice. proceedings before the counsel he would Plaintiff’s said identify it later. It was be never identified so as to admissible evidence, plaintiff’s was not introduced in but it is clear that counsel reading jury was from it and.that so understood and must gotten impression transcript have that it fact of testi was mony given preliminary. thus, indirection, at the Plaintiff got jury alleged transcript, before which was not he entitled introduce evidence. Portions of it im tended to contradict testimony peach of defendant’s the trial witnesses at obviously purpose. procedure improper. used Such plaintiff’s
Criticism is No. 7. made Instruction is a 1228 necessary to hypothesize designed the facts
long instruction, think: verdict. We plaintiff to a in order to entitle found finding that requiring a After prejudicially erroneous this: complaint, agent, filing of the Baxley William before the prosecution arrest plaintiff’s matters such other information and that attorney’s to file an county refusal justice, giving his referred to in he had filed the statement fully re- plaintiff was thereupon therefor, etc., said, “and that thereupon terminated discharged and that said leased and discharge plaintiff,” ,in complete exoneration and full (Italics ours.) facts. etc., hypothesizing further language of instruction the above italicized think We there- misleading. jury may have well understood The erroneous and alone of the fact to find from the they were authorized from that plaintiff’s dis- attorney’s information and prosecuting file failure adjudged conclusively innocent plaintiff was thus and com- prosecuted. “Full charge on he had been criminal established. innocence was mean plete would exoneration” in the one guilt innocence vital car as the If he broke and entered the case. circumstances If Baxleys for the probable testified there was cause. evidence, such not, then, under did want affirmatively show must suit the proseution a malicious dismissal herein did probable cause. conclusively defendant. establish such fact as [See 716; Higgins App. 469, 202 Mo. 211 S. W. Syfon, point: DeWitt v. 1010, 1025-6, 74 Realty Co., 335 S. Knickmeyer-Fleer & Mo. v. Inv. Covington (Mo. Madden (2d) (5-7); 813 v. (1-4), W. (2d) App.), S. W. 190.] effect, it, in ground on the Instruction is criticized Plaintiff’s existence of proving put upon defendant burden *14 (Higgins proof rests cause, case, supra), the burden whereas begins, want of cause. Said instruction probable to show you jury “The instructs the can that before find against plaintiff making complaint justified or excused you him find continuing . . must . . . (Italics .
probable cause to believe that true.” cause. ours.) proceeds It then define language to the we of said instruction is as main criticism strictly not, speaking, burden Said instruction is have italicized. say, prepared in view of the proof We are not instruction. misleading, it is in the event whole, but instructions as given, suggest that, clarified. if another trial we complained of which not alleged arise Other errors lengthen opinion dis- We shall further trial. another judgment cussing them. Tbe is reversed and tbe is remanded. Bohling, CC., WestMies concur.
PER Cooley, C., adopted foregoing CURIAM: Tbe judges All tbe opinion of court. tbe tbe concur. S. W. (2d) Murphy, Appellant. 132. State v. Mark Two,
Division December