Alexander v. Emmke

• Decision Date: 11 February 1929
• Docket Number: No. 16170.,16170.
• Citation: 15 S.W.2d 868
• Parties: ALEXANDER v. EMMKE et al.
• Court: Missouri Court of Appeals

15 S.W.2d 868

ALEXANDER v. EMMKE et al.

No. 16170.

Kansas City Court of Appeals. Missouri.

February 11, 1929.

Rehearing Denied April 1, 1929.

Appeal from Circuit Court, Livingston County; Ira D. Beals, Judge.

"Not to be officially published."

Action by M. C. Alexander against John Emmke and others. Judgment for plaintiff, and defendant named and another appeal. Affirmed as to defendant named, and reversed as to defendant Ann Emmke.

Arch B. Davis, of Chillicothe, Everett L. Sisk, of Excelsior Springs, and Stanton, Hardaway & Moritz, of Kansas City, for appellants.

Lawson & Hale, of Liberty, and Walter H. Maloney, of Kansas City, for respondent.

LEE, C.

This is an action for damages for malicious prosecution, brought in Clay county, and taken by change of venue to Livingston county. Defendants John Emmke and Ann Emmke, husband and wife, as owners of the Excelsior Springs Steam Laundry, employed plaintiff as manager thereof from 1924, when they acquired it, to March, 1926. In that month he was superseded as such manager by defendant W. Tunstead. Plaintiff then secured employment as manager of a laundry in Kansas City, a position which he continued to hold during the events involved in this action, and up to the time of the trial. When plaintiff left defendants' employment, he took with him a Dodge truck which had been used in the laundry's business, the true ownership of which was or became a subject of controversy.

On August 23, 1926, defendant Tunstead filed a criminal complaint before a justice of the peace in Excelsior Springs, charging plaintiff with the larceny of the said car, alleged to be of the value of $400. A warrant was issued, upon which plaintiff was arrested at his place of business in Kansas City by the Clay county constable and a city policeman, at about 2 o'clock in the afternoon. He was first taken to the Kansas City police "hold-over," where he was registered and held for about an hour. He was then taken to Excelsior Springs, arraigned before the justice, gave bond, and was released about 7 o'clock the same evening. The holding of the preliminary examination was continued several times, and finally was set for October 8, 1926, on which date plaintiff herein (defendant in that prosecution) duly appeared. So did also all the defendants herein, with their personal attorneys, and, at the direction of Mr. and Mrs. Emmke, the prosecuting attorney dismissed the case without trial; the costs being paid by defendant Tunstead out of laundry money. That same morning, shortly before the dismissal, the constable served on plaintiff Alexander a summons (which he testified he had been carrying "quite a while") in a case in the circuit court in which the Emmkes were plaintiffs and Alexander was defendant, involving matters in controversy between them arising out of Alexander's employment.

Alexander thereafter brought this action against the Emmkes and Tunstead for malicious prosecution, in which the jury returned a verdict for $906 actual damages and $1,100 punitive damages against all the defendants. From judgment on this verdict, defendants John Emmke and Ann Emmke in due time brought this appeal. Defendant Tunstead did not appeal.

Appellant John Emmke testified that after the change in managers he told Tunstead to check up the laundry and see what was wrong, why the laundry was losing so much money. He says that in three or four days Tunstead reported one truck gone, and that he then told Tunstead to replevin it; that Tunstead reported that he had a lawyer who "would handle the whole thing." He denies any intention on his part that Alexander should be arrested, and claims that he knew nothing of the criminal charge until October 8th, when he appeared in court on what he says he thought was the replevin case; that, when he then learned of the criminal charge, he directed that it be dismissed, which was done.

Appellants did not either of them personally file the criminal charge, and their liability, if any, rests upon the agency for them of Tunstead in so doing. There is no evidence that they directly authorized it, and there is nothing in the nature of the employment as manager of the laundry which would of itself create implied authority for such act. The only thing connecting appellant Ann Emmke with the case at all was her acknowledged co-ownership of the laundry, and her unrebutted testimony that she heard a conversation between her husband and Tunstead in reference to replevining the truck, in which she states nothing was said about a criminal prosecution, and that her first knowledge of this was on October 8th, when she immediately directed that the case be dismissed. The facts shown in the record raise at most a mere suspicion, not sufficient to justify a finding, that she authorized a prosecution, either directly or by implication, or that she had such knowledge thereof or gave such acquiescence and consent thereto as to constitute a ratification of Tunstead's act in the matter. As to her, the judgment should be reversed.

As to the appellant John Emmke, there was sufficient evidence to justify submitting the case to the jury and to support the verdict. If he did not directly authorize the arrest of respondent, the jury was justified from the evidence in finding that he ratified Tunstead's acts in the matter. He had told Tunstead "to check up the laundry and catch what was wrong." When Tunstead reported that a truck was gone, he authorized the employment of a lawyer who "would handle the whole thing." There was evidence that this lawyer called on Alexander in Kansas City about August 18th or 20th and demanded the truck, and said that "if I didn't return it I would regret it." Even though Mr. Emmke testified that he did not know of the arrest, yet he appeared in court on October 8th with this lawyer and another one (whom he first said he had retained a week or ten days before, but later said he met him in the courtroom), besides the prosecuting attorney. After a conference with the lawyers that morning, he directed that the case be dismissed, and the costs were paid out of laundry money by Tunstead. This was about six weeks after the arrest, an account of which had been published in the Excelsior Springs paper. Thereafter he continued Tunstead as manager of the laundry until about Christmas time, some three weeks prior to the trial of the present suit in the circuit court. Appellant testified that "Tunstead was manager, but I had power over him to tell him what do do and what not to do. The arrest of Mr. Alexander was in the newspapers. I read it, I think, shortly after it was done. I don't remember whether I read it in August or not. I don't remember reading the article of August 24th. I did not know it was a criminal charge. I told him to reclaim the truck, a civil charge. It wasn't my idea to arrest him and then dismiss the charge if he gave up the truck. I left Alexander to handle the whole thing, I mean Tunstead." And again: "I didn't know much about the case. I left it all to Tunstead." Later he reiterated that he did not read the newspaper article, and did not know that the pending case was a criminal one until the day it was dismissed. The evidence shows that he gave Tunstead his full confidence to handle the matter in his own way, and it is impossible to believe that a thing of this sort could run for six weeks as a matter of common knowledge by all who read the local newspapers in a small city, and during which he was in daily contact with Tunstead, and employed special attorneys in the matter, without being chargeable with such notice as would justify the jury in finding that he had actual knowledge sufficient to form a basis for a binding ratification. The instructions of the court clearly and fully submitted the question of ratification to the jury, and the evidence was sufficient to sustain their verdict on that point as to appellant John Emmke.

Plaintiff's instruction No. 2 reads as follows: "The term `malice' as used in the instructions, does not necessarily mean actual ill-will or spite, but means merely intentional doing of a wrongful act without just cause or excuse. And by the term of `probable cause' as used in the instructions, is meant reasonable ground supported by facts and circumstances sufficiently strong in themselves to warrant a reasonably prudent and cautious person, under the same circumstances, in believing the accused to be guilty of the offense."

This instruction is substantially in the form approved by the Supreme Court of this state in State ex rel. Mann v. Trimble et al., 290 Mo. 661, 232 S. W. 100. See, also, McNamara v. St. Louis Transit, 182 Mo. 676, 81 S. W. 880, 66 L. R. A. 486.

Defendants' instruction No. B2 reads as follows: "Unless you find from the evidence that defendants Emmke and Emmke caused said prosecution to be instituted or the criminal case to be prosecuted, with malice on their part, you cannot award against them punitive damages."

Instruction No. F, given at the request of defendants, reads as follows: "The court instructs the jury that if you find and believe from the evidence that there was probable cause, as defined in these instructions, for the prosecution about which plaintiff complains, then your verdict will be for the defendants."

These instructions squarely submitted the question of malice and probable cause to the jury. The evidence as to the ownership of the car was conflicting. Alexander testified that he purchased the car with his own money, with the understanding that it was to be used in the laundry's business, for which he was to receive a special commission. The title certificate issued by the state was in his name. On the other hand, he admitted that the original motor block of the car had been replaced by a motor block taken from another car which had been burned, the salvage of which was purchased with laundry money. He also admitted that the laundry paid for two new tires for the car, and also...