Babcock v. Merchants' Exchange

• Decision Date: 25 December 1900
• Citation: 159 Mo. 381,60 S.W. 732
• Parties: BABCOCK v. MERCHANTS' EXCHANGE et al.
• Court: Missouri Supreme Court

60 S.W. 732

159 Mo. 381

BABCOCK v. MERCHANTS' EXCHANGE et al.

Supreme Court of Missouri.

December 25, 1900.

MALICIOUS PROSECUTION — ACTIONS FOR — PLEADING — ANSWERS — EVIDENCE — ADMISSIBILITY — SUFFICIENCY.

1. Where the officers of an exchange obtained the arrest of plaintiff, who was trading in the corridor of its building, on the charge of vagrancy, and on the following day the city attorney filed an information charging plaintiff with disturbing the peace in such transactions, and the information recited that it was on the information of a certain officer of the exchange, but there was no evidence, in an action of malicious prosecution against the corporation and its officers, based on such second prosecution, that they instigated such second proceeding, they were not liable therefor.

2. An answer in an action for malicious prosecution that the defendants procured the arrest of plaintiff, and that he was committing a breach of the peace, and that a citation was issued against him by the city authorities on the following day for such breach of peace, does not show that defendants instituted such latter proceedings, on which the suit was founded, when his first arrest was on the charge of vagrancy.

3. An action for malicious prosecution was instituted against an exchange for procuring the arrest of plaintiff on the charge of a breach of the peace, in attempting to do business as a broker in the corridor of its building; and the answer alleged that plaintiff was not a member of the exchange, and persons not members thereof had been forbidden to use the corridor for such purpose. Held, that it was not error to strike out a special reply alleging that plaintiff was entitled to membership, since he was not entitled to do business on such premises until his rights were determined by a competent court.

4. It was not error to strike out a special reply that plaintiff was one of a large number trading in the corridor in violation of a rule of the exchange, and was alone prosecuted therefor.

5. Evidence that other persons, including members of the exchange, were engaged in the irregular trading in the corridor in violation of the rules of the exchange, is not admissible, since it is not in support of any material issue, and does not tend to prove malice on the part of defendants.

Valliant and Gantt, JJ., dissenting.

In banc. Appeal from St. Louis circuit court; Rudolph Hirzel, Judge.

Action by Austin E. Babcock against the Merchants' Exchange and others for malicious prosecution. Judgment of nonsuit in favor of defendants affirmed by the court in banc on the opinion in division.

The following opinions were delivered in division No. 1:

"MARSHALL, J.

This is an action for ten thousand dollars actual and forty thousand dollars punitive damages for malicious prosecution of the plaintiff in the police court of the city of St. Louis upon a charge of disturbing the peace of Nat L. Moffitt, one of the co-defendants herein. The information was filed in the police court by H. A. Clover, Jr., the city attorney, ex officio, on the 15th of July, 1897, and the prosecution was in the name of the city of St. Louis and against the plaintiff. As is usual in such proceedings, a summons was issued and served on plaintiff (the defendant therein) by reading the same to him. There was no arrest. Upon trial on such information the plaintiff was acquitted, on July 17, 1897; and thereafter, on the 21st of October, 1897, this action was begun in the circuit court of the city of St. Louis, and afterwards, on plaintiff's application, was removed from that court, by change of venue, to the circuit court of St. Louis county, where the case was tried on the 27th day of June, 1898, and resulted in the plaintiff's taking an involuntary nonsuit, with leave, and, the motion to set aside being overruled, the plaintiff perfected this appeal.

"The facts shown by this record are these: The Merchants' Exchange is an incorporated association, and owns a large building in St. Louis, located in the block lying between Pine, Chestnut, Third, and Fourth streets. There are entrances from Pine, Chestnut, and Third streets to the first or ground floor of the building, through which members reach the large hall on the upper floor, where the members of the exchange transact business. There are a number of rooms or offices in the building, which are rented to third persons, who may or may not be members of the exchange. The plaintiff had desk room in one of these offices, which had been rented to the Gratiot Street Warehouse Company. The plaintiff was not a member of the exchange. He had some time previously purchased from a member his certificate of membership, but the exchange had refused to permit the plaintiff to become a member thereof. The certificates of membership are negotiable, and are received by the exchange in payment of initiation fees, but only when presented by a transferee who has been admitted to membership. The confluence of the three entrances aforesaid is called the `Curb,' in which there are a telegraph office, a lunch counter, a cigar stand, etc. Here the members of the exchange congregate after the sessions of the exchange proper in the large hall upstairs, and trade with each other. Persons not members of the exchange (among them, the plaintiff) were in the habit of going there and trading with the members of the exchange, and with any persons desiring to trade. On the 12th of July, 1897, the board of directors of the exchange adopted a resolution prohibiting any person not a member of the exchange from using the corridors, halls, or landing stairs of the building except for purposes of passing to and from the floor of the exchange and offices of the building, unless by permission of the board, and instructing the committee on irregular trading, at that time composed of the co-defendants Aiken and Moffitt, to enforce the resolution. Accordingly, on the 13th of July, when the plaintiff, as had been his habit, appeared at the curb and attempted to carry on his business of broker with the persons there assembled, the co-defendant Moffitt attempted to read the resolution aforesaid to the plaintiff; but he refused to hear it read in full, although he admits he knew its purport, and continued to carry on his business as usual. On the following day, July 14th, plaintiff again attempted to carry on his business on the curb; and the defendants Aiken and Moffitt, as such committee, again called his attention to the resolution, and asked him to desist from transacting his business there. The plaintiff kept moving away from the defendants Aiken and Moffitt, and refused to stop trading or to recognize the resolution or to quit the premises. Thereupon the defendants Aiken and Moffitt called a police officer, who arrested the plaintiff and carried him to the police station, about two blocks distant, where a charge of vagrancy was lodged against him. The plaintiff gave bond, and upon being released returned immediately to the curb, and resumed his business there. The defendants Aiken and Moffitt again called the police officer, and plaintiff was again arrested and taken to the police station, but the sergeant in charge of the station ordered his release for the reason that one arrest for the same charge was sufficient. Thereafter, on July 15th, the city attorney filed, ex officio, two informations against the plaintiff, — one for disturbing the peace, and the other for trespassing on private property, which is called the `Vagrancy Ordinance' in St. Louis. The plaintiff was acquitted on the first charge (disturbing the peace), which is made the basis of this action, and convicted on the vagrancy charge, but appealed from that judgment to the court of criminal correction, in which court he was discharged, and that judgment was affirmed by this court. City of St. Louis v. Babcock, 56 S. W. 732. In explanation of his refusal to leave the curb or to respect the resolution of the exchange, the plaintiff said he considered that he owned the property, and again that he considered it as much public property as a street. His theory of ownership rested upon his holding the certificate of membership above referred to. The plaintiff testified that prior to his arrest defendant Moffitt came to him in front of his office and read to him a `message not to do any more trading up there.' His account of what took place just before he was arrested on the 14th of July is as follows: `I told the gentlemen to go away and let me alone, and not bother me; but Aiken followed me clear around the hall, and I said: "Aiken, go way from me. I have no business with you. Go away from me. Let me alone. Don't bother me. I don't wish any trouble with you." * * * I was trying to get away, because I didn't wish any trouble, and they called a police officer and told him to arrest me.' That he was arrested and taken to the police station `amid the yells of five thousand people.' The information charged a violation of section 1036, c. 26, art. 3, Rev. Ord. St. Louis 1893, in that the plaintiff `did then and there willfully disturb the peace of others, and particularly of Nat L. Moffitt, by violent, tumultuous, offensive, and obstreperous conduct and carriage, and by loud and unusual noises, and by unseemly, profane, obscene, and offensive language, calculated to provoke a breach of the peace, and by assaulting, striking, and fighting others, and particularly Nat L. Moffitt, contrary to the peace,' etc.

"1. The action of the trial court in sustaining a demurrer to the evidence at the close of the plaintiff's case is the first error assigned. At the outset it is proper to observe that the question of whether the plaintiff was a trespasser upon the premises of the Merchants' Exchange is not involved in this case. That charge was a separate charge lodged by the chief of police in the police court. It was the charge which was preferred against the plaintiff when he was taken under...