Barber v. Allright Kansas City, Inc.

Decision Date04 October 1971
Docket NumberNo. 25561,25561
Citation472 S.W.2d 42
PartiesM. S. BARBER, Plaintiff-Respondent, v. ALLRIGHT KANSAS CITY, INC., a corporation, et al., Defendants-Appellants.
CourtMissouri Court of Appeals

Koenigsdorf, Kaplan, Kraft & Fox, by Errol Copilevitz, Kansas City, for defendants-appellants.

Robert J. Taylor, Kansas City, for plaintiff-respondent.

SHANGLER, Presiding Judge.

Plaintiff's petition, which came in two counts, undertook to plead a cause of action for false imprisonment in Count I and for malicious prosecution in Count II. At the conclusion of the plaintiff's evidence, the defendant moved for directed verdict as to both counts, but the trial court sustained the motion only as to County I. After defendant had adduced evidence, the cause of action for malicious prosecution was submitted to the jury which found a verdict for plaintiff for $500 actual damages and $75 punitive damages. Defendant's Motion for Judgment in Accordance with Motion for Directed Verdict or for New Trial was overruled.

Our disposition of the points defendant raises on this appeal requires only this brief evidential reference. On March 1, 1965, plaintiff, who was then employed by the Post Office Department at its Kansas City, Missouri, airport facility, leased parking space for that month for his 1955 Buick automobile from defendant Allright Ansas Coty, Inc., which operated parking lots nearby. Plaintiff was given the appropriate adhesive identification marker for that month which, as directed by defendant, he placed on the windshield of his automobile. The parking lots were regularly unattended but were periodically checked by Hans Stuemmel, the manager of defendant's airport facilities, by inspecting the windshields of the cars parked there for the appropriate identification marker valid during that particular month. Since defendant had been prompted by the Aviation Department of the City of Kansas City to discourage unauthorized parking on these lots, and particularly on lot number four where plaintiff had leased space, its manager 'was over there * * * once or twice a day checking that particular lot'. On March 8, 1965, in the course of his inspection of lot number four, Stuemmel detected three cars without apparent valid identification, plaintiff's 1955 Buick among them. He summoned a policeman who, upon Stuemmel's written complaint, issued citations to plaintiff and the others for illegal parking on private property. The policeman did not, himself recall examining the windshields of the cars.

On his way home from work that evening, plaintiff discovered the ticket fluttering from beneath his windshield wiper, stopped his car and examined it. The ticket disclosed that it had been issued upon Stuemmel's signed complaint. Since plaintiff was not scheduled to work the following two days, on the third day he brought the car to Stuemmel and pointed to the windshield which clearly displayed a valid identification marker. Stuemmel told plaintiff he could see the marker then, but that he did not see such a marker on March 8, 1965, and freely admitted that the ticket had issued upon his written complaint. Stuemmel told plaintiff that since the fine for the infraction was $5.00, if plaintiff would pay it, defendant would reimburse him by allowing him a month's free parking. Plaintiff, obviously agitated, refused because '(he) knew (he) was not guilty'. With that, he informed the Clerk of the Municipal Court that he intended to plead 'not guilty' to the charge, requested and received a trial setting. Plaintiff in the company of employed counsel, appeared in court, tried the issue, and was discharged. This suit for damages ensued.

Defendant's first point is that its motion for directed verdict at the close of plaintiff's case as to Count II of plaintiff's petition which alleged a malicious prosecution should have been sustained because plaintiff failed to prove want of probable cause and the presence of malice. Defendant presented evidence after its motion for directed verdict at the close of plaintiff's case was overruled, however, and having done so, waived the motion and any error which may have resulted from the court's action denying the motion. Garvis v. K Mart Discount Store, Mo.App., 461 S.W.2d 317, 320(1); Mo.Digest, Trial k420.

Defendant next argues that the trial court erred in having overruled its motion for directed verdict at the close of all the evidence because Count II, the only subsisting portion of plaintiff's petition, was fatally defective as a statement for malicious prosecution in that it did not allege that plaintiff suffered actual damage. In asserting this argument, defendant not only acknowledges that the constitutive elements of a cause of action for the malicious prosecution of a cause, whether civil or criminal, are: "(1) the commencement of prosecution of the proceeding against him or her; (2) its legal causation by the present defendant; (3) its termination in favor of the present plaintiff; (4) the absence of probable cause for such proceeding; (5) the presence of malice therein; and (6) damage to plaintiff by reason thereof" (Bonzo v. Kroger Grocery & Baking Co., 344 Mo. 127, 125 S.W.2d 75, 77(1); Ripley v. Bank of Skidmore, 355 Mo. 897, 198 S.W.2d 861, 866(22, 23); Hughes v. Aetna Ins. Co., Mo., 261 S.W.2d 942, 949(6--8); 54 C.J.S. Malicious Prosecution § 4), but also effectively concedes the sufficiency of Count II as a pleading for malicious prosecution in all essential respects except as to actual damages.

It should be noted that plaintiff specifically stated a claim for punitive damage in Count II of his petition. And although he did not explicitly allege actual damage in Count II, he did allege such damage in Count I and undertook to incorporate by reference into Count II 'all the statements, allegations and averments set forth in Count I of his petition'. It is appellant's position, however, that while incorporation by reference is undeniably a proper form of pleading, 1 'the incorporation must refer in a clear and direct, positive and explicit manner to that which it attempts to incorporate'. Thus, the 'total incorporation' of Count I into Count II attempted by plaintiff was ineffective to adopt the actual damage allegation from one into the other, so Count II remained fatally defective in that respect. The defendant then concludes that since an award for actual damages is a necessary foundation for punitive damages and a properly pleaded basis for both must be laid in the petition (see Keller v. Summers, 262 Mo. 324, 171 S.W. 336, 339(5); Civil Rule 55.21, V.A.M.R.), a petition which does not allege actual damage cannot support an award for either and should have been dismissed.

These arguments come too late. While the sufficiency of a petition to state a claim may be raised at any stage of the proceedings (State ex rel. Gardner v. Webber, 177 Mo.App. 60, 164 S.W. 184, 186(3); Valleroy v. Southern Railway Company, Mo., 403 S.W.2d 553, 556(4); Civil Rules 55.43 and 79.03, V.A.M.R.), and even for the first time on appeal (Matthews v. Truxan Parts, Inc., Mo.App., 327 S.W.2d 28, 38(12); Sec....

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17 cases
  • Sprung v. Negwer Materials, Inc.
    • United States
    • Missouri Supreme Court
    • August 1, 1989
    ...as to the cause of action it is called upon to meet and bar another action for the same subject-matter. Barber v. Allright Kansas City, Inc., Mo.App., 472 S.W.2d 42, 44. Sumpter, 492 S.W.2d at Applying these principles to respondent's petition, the Court finds that the petition states a val......
  • Green v. Penn-America Ins. Co.
    • United States
    • Missouri Court of Appeals
    • October 16, 2007
    ...as to the cause of action it is called upon to meet and bar another action for the same subject-matter." Barber v. Allright Kansas City, Inc., 472 S.W.2d 42, 44 (Mo.App.1971) (internal quotation omitted). See also Phillips v. Bradshaw, 859 S.W.2d 232, 234 (Mo.App. S.D.1993) (applying the st......
  • Vittengl v. Fox
    • United States
    • Missouri Court of Appeals
    • April 21, 1998
    ...statement of that claim without changing the cause of action will be held good after verdict.' " Id. (quoting Barber v. Allright Kansas City, Inc., 472 S.W.2d 42, 44 (Mo.App.1971)). See also State ex rel. Gardner v. Webber, 177 Mo.App. 60, 164 S.W. 184, Here, no challenge was made to the su......
  • Derboven v. Stockton
    • United States
    • Missouri Court of Appeals
    • December 20, 1972
    ...This point raises nothing for review since the defendants Stockton, after adverse ruling, presented evidence. Barber v. Allright Kansas City, Inc., 472 S.W.2d 42 (Mo.App.1971), Garvis v. K Mart Discount Store, 461 S.W.2d 317 The point is restated in the same vein in the next point under the......
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