101 S.W. 78 (Mo. 1907), S. Carp v. Queen Insurance Company

Citation:101 S.W. 78, 203 Mo. 295
Opinion Judge:GANTT, J.
Party Name:S. CARP v. QUEEN INSURANCE COMPANY et al., Appellants
Attorney:Edward J. White, Martin L. Clardy and Barger & Hicks for appellants. H. H. Bloss, McNatt & McNatt and G. A. Watson for respondent.
Judge Panel:GANTT, J. Fox, P. J., and Burgess, J., concur. Fox, P. J., and Burgess, J., concur.
Case Date:April 02, 1907
Court:Supreme Court of Missouri
 
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Page 78

101 S.W. 78 (Mo. 1907)

203 Mo. 295

S. CARP

v.

QUEEN INSURANCE COMPANY et al., Appellants

Supreme Court of Missouri, Second Division

April 2, 1907

Page 79

[Copyrighted Material Omitted]

Page 80

Appeal from Christian Circuit Court. -- Hon. Asbury Burkhead, Judge.

Reversed and remanded.

Edward J. White, Martin L. Clardy and Barger & Hicks for appellants.

(1) Incompetent and illegal evidence was permitted to be introduced by plaintiff over defendants' objection and exception. (a) All the testimony of W. O. Oldham, relative to the existence and objects of the National Board of Underwriters, and his information of its business and methods, shown by him to be wholly derived from what he had been told by others, was purely hearsay and incompetent. Greenl. Ev., sec. 98; Chouteau v. Searcy, 8 Mo. 733; Atkisson v. Castle Garden, 28 Mo. 124. (b) The unverified and uncertified files and records of the circuit court of Lawrence county, were incompetent, because not properly authenticated by the certificate of the clerk of the county court from whence they came. R. S. 1899, sec. 3135; Greenl. Ev. (14 Ed.), sec. 502; Crow, Hargadine & Co. v. Stevens, 44 Mo.App. 140; Gentry v. Field, 143 Mo. 409; Hickman v. Griffin, 6 Mo. 37; Moyer v. Lyon, 38 Mo.App. 635. (c) The act of the court in admitting the declarations of the alleged adjusters of defendants for the purpose of establishing their agency, and the acts and declarations of such illegally established agents, was manifest error. Craighead v. Wells, 21 Mo. 404; Anderson v. Vollmer, 83 Mo. 403; Waverly Co. v. Cooperage Co., 112 Mo. 383; Stove Co. v. Furniture Co., 93 Mo.App. 237; Oil Co. v. Zinc Co., 98 Mo.App. 324; Diel v. Railroad, 37 Mo.App. 454. (d) The posting of the reward, by the National Board of Underwriters, not shown to be connected in any way with a single one of the defendants, was illegal evidence. Diel v. Railroad, 37 Mo.App. 458; Smith v. Ins. Co., 107 Cal. 432; Atkisson v. Castle Garden, 28 Mo. 124. (e) The evidence of the injury from the prosecution to the business of plaintiff was incompetent, not only because all the evidence showed that plaintiff never had any business in Aurora, but also because no injury to his business -- if he had had any -- was alleged as a basis for such special damages. 13 Ency. Pl. and Pr., 453; Fine v. Navarre, 104 Mich. 93. (f) The petitions, answers, judgments and verdicts in the suits on the policies, even if they had been properly authenticated, and verified, were incompetent and illegal evidence in this case, and only tended to the further prejudice of defendants' rights. The suits on the policies were not tried until six months after the criminal suit, and the issues were wholly different. Kennedy v. Holladay, 25 Mo.App. 515. (g) The statements of the assets of the several defendants, not shown to have been issued by them, or to have been authorized by them, and the evidence set forth therein, was incompetent and prejudicial. Evidence of the wealth of defendant in such cases is held to be admissible, but it must be confined to proper evidence of such facts and limited by proper inquiry to legal evidence. Newell, Mal. Pros., p. 604; Spear v. Hiles, 67 Wis. 350. (2) (a) The court erred in overruling defendants' demurrer offered at the close of plaintiff's evidence and again at the close of the whole case. White v. Shradski, 36 Mo.App. 635; Babcock v. Mer. Exch., 159 Mo. 381; Newell, Mal. Pros., sec. 7, p. 108; Warren v. Flood, 72 Mo.App. 199; Smith v. Ins. Co., 107 Cal. 432; Engelke v. Chouteau, 98 Mo. 629; Boden v. Railroad, 84 S.W. 181; Leigh v. Webb, 3 Esp. 164; Hahn v. Schmidt, 64 Cal. 284; McNeeley v. Driscoll, 2 Blackf. 259; Newman v. Davis, 58 Iowa 447; Armstrong v. Railroad, 46 La. Ann. 1448; Bartlett v. Brown, 6 R. I. 37; Shea v. Lumber Co., 92 Minn. 348; Black v. Buckingham, 174 Mass. 102; Bell v. Railroad, 58 N. J. L. 227; Strehole v. Pettitt, 96 Wis. 22. (b) The evidence connecting plaintiff with the burning of the store was sufficient, as a matter of law, to have justified the court in holding that the prosecution was based upon probable cause, and for this reason the demurrer should have been given. Meysenberg v. Engelke, 18 Mo.App. 346; Taaffe v. Kyne, 9 Mo.App. 15; Pandjiris v. Hartman, 196 Mo. 539; Johnson v. Miller, 63 Iowa 529. (c) The demurrer should also have been sustained because of the total lack of evidence showing any malice upon the part of defendants against plaintiff. Vansickle v. Brown, 68 Mo. 627; Jordan v. Railroad, 105 Mo.App. 446. (3) The court erred in giving instructions 1, 2, 3, 4, 5, 6 and 7, and each and every one thereof, on the part of plaintiff. Fox v. Smith, 55 A. 689; Herbener v. Crossman, 55 A. 223; Ruth v. Railroad, 98 Mo.App. 1; 13 Ency. Pl. and Pr., 435; Vansickle v. Brown, 68 Mo. 627; Jordan v. Railroad, 105 Mo.App. 446; Boden v. Railroad, 84 S.W. 181; White v. Shradski, 36 Mo.App. 635; Warren v. Flood, 72 Mo.App. 199; Babcock v. Merchants Exchange, 159 Mo. 381; Slater v. Kimbro, 91 Ga. 217. (4) The court erred in refusing instructions 1, 2, 3 and 4, and each thereof, asked by defendants. White v. Shradski, 36 Mo.App. 640; Johnson v. Miller, 63 Iowa 529; McCaskey v. Garrett, 91 Mo.App. 354. (5) The damages found by the jury were grossly excessive and the result of passion and prejudice. Ruth v. Railroad, 98 Mo.App. 19; Farrell v. Railroad, 103 Mo.App. 454; Chitty v. Railroad, 166 Mo. 435.

H. H. Bloss, McNatt & McNatt and G. A. Watson for respondent.

(1) (a) Where one offers the same sort of evidence, he waives any objection he might have had to its offer by the other side, and the rule would certainly apply with greater force where he offers the evidence first, of which he complains. Ruth v. Railroad, 98 Mo.App. 1; Dice v. Hamilton, 178 Mo. 81; Strother v. DeWitt, 98 Mo.App. 293. (b) The statute was passed for public convenience, to enlarge the means of evidencing public instruments. Our courts have held that the original as well as a copy are admissible. Ohmeyer v. Ins. Co., 91 Mo.App. 189; Van Riper and Rogers v. Morten, 61 Mo.App. 444; Reynolds v. Ins. Co., 88 Mo.App. 679. The case of Hickman v. Griffin, 6 Mo. 37, cited by appellant to support this contention is opposed to it. The court held that the affidavit was not identified and was not a certified copy and should have been excluded. If it had been identified it would have been admissible. If this objection relates to the original bills of exceptions read from, then we answer that appellants themselves used the bills of exception and besides the stipulation in respondent's additional abstract which appellants failed to copy in their abstract, authorized the reading of them. (c) The next alleged error assigned by appellants relates to the evidence admitted showing declarations of adjuster of defendants for the purpose, as appellants allege, to prove the agency of the adjusters. If the record showed that there was no other evidence to show the agency of the adjuster for defendants, then we concede the assignment would be well taken, but this record is full of other evidence showing the relation between defendants and their adjusters. Chase v. Rusk, 90 Mo.App. 25; Bonner v. Lisenby, 86 Mo.App. 666; Parsons v. Ins. Co., 132 Mo. 583. The adjuster is the alter ego of the insurance company and his admissions made at the time of examining the loss are the admissions of the company. Sisk v. Fire Ins. Co., 95 Mo.App. 695; Branigan v. Ins. Co., 102 Mo.App. 70. (d) Where the evidence shows that the purpose of encouraging or maintaining criminal proceedings is the enforcement of the avoidance of a civil liability, the motive for such conduct is shown to be malicious. Stubbs v. Mulholland, 168 Mo. 47; Meysenberg v. Engelke, 18 Mo.App. 346; Stanley v. Turner, 21 Mo.App. 251; Eagleton v. Kabrick, 66 Mo.App. 231; Clark v. Thompson, 160 Mo. 461. (e) The evidence of Miss Williams was properly admissible for several reasons. It developed the existence of testimony prior to the beginning of this prosecution that was accessible to defendants and their agents if they had wanted to honestly determine the probable guilt of Mr. Carp. Stubbs v. Mulholland, 168 Mo. 47; Thomas v. Smith, 51 Mo.App. 605; Eagleton v. Kabrick, 66 Mo.App. 231; Proctor Coal Co. v. Moses (Ky.), 40 S.W. 681; Pedan v. Mail, 118 Ind. 560; 19 Am. and Eng. Ency. Law (2 Ed.), 698; Ruth v. Railroad, 98 Mo.App. 19. (2) Before a defendant in a malicious prosecution case can shield himself behind the advice of counsel, he must establish that he disclosed all the material facts, truthfully and honestly, which he knew or by the exercise of reasonable diligence could have ascertained, and that he relied upon the advice of counsel, in good faith, believing the plaintiff to be guilty of the crime. Stubbs v. Mulholland, 168 Mo. 47; Sharpe v. Johnston, 76 Mo. 669; McIntyre v. Leverny, 148 Mass. 546. Where a prosecution is conducted by reason of a false affidavit or carried on by introducing false testimony, this of itself is sufficient proof of want of probable cause. Sharpe v. Johnston, 76 Mo. 672; Firer v. Lowery, 59 Mo.App. 96; Boogher v. Hough, 99 Mo. 183. And even if a person is convicted, if it was done by false testimony or unfair means, there is no probable cause. Womack v. Circle, 32 Gratt. 324; Adams v. Bickwell, 126 Ind. 210. Even if there was no evidence of ill-will, the fact that defendants were trying to evade the payment of a civil obligation, and that this would bring about the proper results should they secure a conviction, is sufficient evidence of malice. Meysenberg v. Engelke, 18 Mo.App. 346; Eagleton v. Kabrick, 66 Mo.App. 231. (3) If the testimony was found to be false by the jury (which it certainly was) and defendants aided in procuring it, then they should be made to suffer in damages for their wrongful attempt to use the criminal courts to defeat a...

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