Babcock v. Merchants' Exchange of St. Louis
| Decision Date | 25 January 1901 |
| Citation | 60 S.W. 732,159 Mo. 381 |
| Parties | BABCOCK, Appellant, v. MERCHANTS' EXCHANGE OF ST. LOUIS et al |
| Court | Missouri Supreme Court |
Appeal from St. Louis County Circuit Court. -- Hon. Rudolph Hirzel Judge.
Affirmed.
Charles M. Napton for appellant; Chester H. Krum of counsel.
(1) The court erred in giving the instruction for a nonsuit. It is necessary for a plaintiff to show malice and want of probable cause, and when that is done a case is made. The acquittal of Babcock in this case was prima facie evidence of the want of probable cause. It was sufficient to prevent a nonsuit. Casperson v. Sproule, 39 Mo. 39; Thomas v Smith, 51 Mo.App. 605; Sharpe v. Johnson, 76 Mo. 660. Malice may be inferred from want of probable cause and the whole question should be submitted to the jury under proper instructions. Holliday v. Sterling, 62 Mo. 321. (2) When the instruction for a nonsuit was asked on the trial below, the court, in giving it, stated as the reason for doing so, that the plaintiff had failed to show that the Merchants' Exchange had authorized the arrest and prosecution of plaintiff. The court disregarded the fact that this action was not only against the Merchants' Exchange but also against Akin and Moffitt. If we should concede, which we do not, that there was no evidence of authorization by the exchange, yet that would be no reason for nonsuiting plaintiff as to the two individual defendants who personally caused the arrest and prosecution. The mere statement of the above fact necessitates the reversal of the judgment below, because, in any view of the case, there was enough of a case made out against Akin and Moffitt to go to the jury. But we do not concede that there was no authorization of this arrest and prosecution, as shown by the pleadings and evidence. The answer to the amended petition clearly admits that Akin and Moffitt were the members of the committee on irregular trading. (3) The allegations stricken out were responsive to allegations of new matter in the answer and set out facts which, if established, would tend strongly to show malice. As a part of the history of this litigation, we may be permitted to state that in December, 1897, Babcock tendered the annual dues on his certificate of membership, but the same were refused, and on the first of January, 1898, the exchange declared his certificate forfeited. He thereupon sued the corporation for damages, recovered the market value of the certificate, and the judgment was paid. We cite the above decision as that of a court of competent jurisdiction holding that Babcock, as the owner of said certificate, was the owner of an interest in all the property of defendant corporation in the proportion which his certificate bore to the total number of certificates outstanding. If that decision was correct, then, at the time of this arrest, Babcock stood in the position not only of a tenant in the chamber of commerce building, but also as a part owner of the same. Such being the situation, proof of the facts set out in the reply would tend to show malice on the part of defendants. Malice may consist of an improper motive or a willful disregard of the rights of others, whether it be to compass some unlawful end, or some lawful end by unlawful means, or to do a wrong and unlawful act, knowing it to be such. It may be inferred from the facts. Alexander v. Harrison, 38 Mo. 258; Callahan v. Caffarata, 39 Mo. 136; Sharpe v. Johnston, 59 Mo. 557, 76 Mo. 660; Vansickle v. Brown, 68 Mo. 627. (4) The court should have admitted the evidence offered by plaintiff tending to show that many members of the exchange dealt in bucket shops and also owned them. The evidence shows that this entire controversy arose out of an attempt, by the exchange, to prevent its members from dealing in bucket shops. The reason of this was not because it was illegal or immoral to do so, because they allowed their own members to do it, but because every trade executed through a bucket shop took that much business away from the exchange floor. When, therefore, the exchange took steps to punish Babcock, and nobody else, evidence that other persons were as guilty as Babcock and were not proceeded against, tended to show malice and should have been submitted to the jury with the other facts. Lalor v. Byrne, 51 Mo.App. 578. Such facts would have tended to show that there was no probable cause for this arrest. Probable cause has been defined to be "belief founded on reasonable grounds." Freymark v. McKinney Co., 55 Mo.App. 435; Staley v. Turner, 21 Mo.App. 244.
R. F. Walker and F. N. Judson for respondent.
(1) There was no evidence of want of probable cause in the prosecution for breach of the peace. The acquittal of the charge in the police court was not a discharge by an examining magistrate, but was a final judgment on all the facts, and not on a prima facie case. The authorities are unanimous that from such a judgment there is no inference that there is want of probable cause, and the authorities cited by appellant have no application. Boeger v. Langenberg, 97 Mo. 390; Williams v. Van Mater, 8 Mo. 339; Christian v. Hannah, 58 Mo.App. 37. It has been repeatedly held that malice can not be inferred from a mere failure of a criminal prosecution. Casperson v. Sproule, 39 Mo. 43; Beason v. Southard, 10 N.Y. 236; Gaven v. Railroad, 51 Cal. 140; Leavey v. Brannan, 39 Cal. 485; Heyne v. Blair, 62 N.Y. 19; Good v. French, 115 Mass. 201; Ames v. Snider, 69 Ill. 376. On the contrary, the conviction by the police magistrate under the vagrancy ordinance at the same time, is conclusive evidence of the existence of probable cause for the arrest and prosecution. In other words, it is conclusive evidence of probable cause to defendants for believing that plaintiff was a trespasser upon their property. Maddox v. Jackson, 4 Munf. (Va.), 462. (2) The affirmative proof of want of probable cause not having been made, there could be no inference of malice, and the burden of proving malice was therefore upon the plaintiff. McGarry v. Railroad, 36 Mo.App. 340; Peck v. Chouteau, 91 Mo. 138; Lalor v. Byrne, 51 Mo.App. 578. (3) There was no evidence whatever connecting the Merchants' Exchange or either of the individual defendants with the filing of the information for disturbance of the peace on July 14, whereon solely this cause of action is based. (4) There was no evidence whatever of malice on the part of defendant, the Merchants' Exchange. The alleged motives of the members in refusing to admit plaintiff as a member are clearly inadmissible. There could be no inference of malice from the lawful exercise of a right.
In Banc
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 fifteenth 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 twenty-first 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 twenty-seventh 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 those offices, which had been rented to the Gratiot Street Warehouse company. The plaintiff was not a member of the exchange. He had sometime 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 is a telegraph office, a lunch counter, a cigar stand, etc. Here the members of the exchange congregate after the session of the exchange proper in the large hall up-stairs 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 twelfth 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...
To continue reading
Request your trial