Beatty v. Puritan Cosmetic Co.

• Decision Date: 05 January 1942
• Parties: STELLA PARKE BEATTY, PLAINTIFF IN ERROR, v. PURITAN COSMETIC COMPANY, A CORPORATION, AND W. ARNOLD BRANNOCK, JR., DEFENDANTS IN ERROR
• Court: Kansas Court of Appeals

158 S.W.2d 191

236 Mo.App. 807

STELLA PARKE BEATTY, PLAINTIFF IN ERROR, v. PURITAN COSMETIC COMPANY, A CORPORATION, AND W. ARNOLD BRANNOCK, JR., DEFENDANTS IN ERROR

Court of Appeals of Missouri, Kansas City

January 5, 1942

Writ of Error to Jackson Circuit Court.--Hon. Thos. J. Seehorn Judge.

AFFIRMED AS TO DEFENDANT BRANNOCK; REVERSED AND REMANDED AS TO DEFENDANT COSMETIC COMPANY.

Clif Langsdale and Clyde Taylor for plaintiff in error.

(1) A suit lies for the malicious prosecution of a civil action as well as a criminal prosecution and in general the same principles apply to both. Wilcox v. Gilmore (Mo.), 8 S.W.2d 961; LaChance v. National Co., 104 S.W.2d 693, 699; Laughlin v. Trust Co., 50 S.W.2d 92, 93; Bonzo v. Kroger, 125 S.W.2d 75, 775; Randol v Kline, 49 S.W.2d 112, 114; Wilkinson v. McGee, 178 S.W. 471; Boogher v. Hough, 12 S.W. 524; Peck v. Chouteau, 3 S.W. 577; Sharpe v Johnston, 76 Mo. 670; Frier v. Lowery, 59 Mo.App. 97; Vanscicle v. Brown, 68 Mo. 627; Dawes v. Starrett (Mo.), 82 S.W.2d 45; Steppuhn v. Ry. Co. (Mo. App.), 204 S.W. 579. (2) Under the foregoing case plaintiff made a case for the jury. Sec. 2635, R. S. Mo. 1939; Art. 6, secs. 23 and 37, Mo. Const.; McNair v. Hunt, 5 Mo. 300; State v. Vaile, 26 S.W. 672; State v. Bank, 25 S.W. 372. (3) Under the cases of Steppuhn (204 S.W. 579) and of Dawes (82 S.W.2d 43) plaintiff made a submissible case. Dawes v. Starrett (Mo.), 82 S.W.2d 43; Steppuhn v. Ry. (Mo. App.), 204 S.W. 579; Dawes v. Staire, 82 S.W.2d 45. (4) Plaintiff's position does not violate the "rule" against drawing inference from inference. Norris v. Dupont (Mo.), 109 S.W.2d 1228; Martin v. Ry. (Mo.), 46 S.W.2d 152; State v. Hostetter (Mo.), 139 S.W.2d 939. (5) As to want of probable cause and malice. Kennedy v. Holliday, 25 Mo.App. 503; Witascheck v. Glass, 46 Mo.App. 200; Callahan v. Kelso (Mo. App.), 156 S.W. 716; Waddell v. Krause (Mo. App.), 241 S.W. 964; Pritchett v. Ins. Co. (Mo. App.), 73 S.W.2d 815; Campbell v. Myers, 287 S.W. 842; Peterson v. Fleming (Mo. App.), 297 S.W. 163; Randol v. Kline (Mo.), 18 S.W.2d 500; Alexander v. Emmke (Mo. App.), 15 S.W.2d 868; La Font v. Richardson (Mo. App.), 119 S.W.2d 25. (6) As to the evidence that on occasion plaintiff sent her checks to the company. (7) In determining whether a submissible case was made plaintiff's evidence, together with all reasonable inferences to be drawn therefrom shall be treated as true, and contrary facts and all unfavorable inferences should be rejected. Smith v. East St. Louis Ry. Co., 152 S.W.2d 204, 209; Clark v. Atchison & Eastern Bridge Co., 324 Mo. 544, 24 S.W.2d 143; Gorman v. St. Louis & Ry. Co., 325 Mo. 326, 28 S.W.2d 1023; Ingram v. Mobile & Ry. Co., 326 Mo. 163, 30 S.W.2d 989; Clason v. Lenz, 332 Mo. 1113, 61 S.W.2d 727; Young v. Wheelock, 333 Mo. 992, 64 S.W.2d 950. (8) Defendant by offering a demurrer to the evidence admits as true every fact and circumstance which the evidence tends to prove. Clark v. Bridge Co., 324 Mo. 544, 24 S.W.2d 143; Young v. Wheelock, 333 Mo. 992, 64 S.W.2d 950; Harden v. Illinois Central Ry. Co., 334 Mo. 1169, 70 S.W.2d 1075. (9) Contradictory statements, if any, made by plaintiff go only to the weight and value of her testimony and should not be considered on the demurrer to the evidence. Jones v. St. Louis & C. Ry. Co., 333 Mo. 802, 63 S.W.2d 94; Parrent v. Mobile & Co. Ry. Co., 334 Mo. 1202, 70 S.W.2d 1068.

Cowgill & Popham and Sam Mandell for defendants in error.

Plaintiff did not make a submissible case. Dye v. Loewer, 94 S.W.2d 948.

OPINION

CAVE, J.

This case reaches this court on writ of error to the Circuit Court of Jackson County, to review a final judgment rendered by that court against the plaintiff, Stella Parke Beatty, and in favor of both defendants. We will continue to refer to the parties as plaintiff and defendants.

The plaintiff sued the defendants for malicious prosecution and at the close of plaintiff's evidence, the court announced he would sustain, and did mark as "given," separate demurrers offered by the defendants. Thereupon the plaintiff took an involuntary nonsuit with leave to move to set the same aside, which motion, together with motion for new trial, was overruled and final judgment rendered. There is but one point at issue in this court and that is whether the trial court committed error in sustaining the separate demurrers of the defendants at the close of plaintiff's evidence.

Plaintiff's petition in substance alleged: That on or about January 25, 1935, the defendant Cosmetic Company, acting through and with defendant Brannock, wilfully, wrongfully and maliciously filed before a justice of the peace in Jackson county, a suit against plaintiff and her husband, claiming that a certain sum of money was due said company from this plaintiff and her husband on account of certain merchandise which it was alleged the company had sold and delivered to the plaintiff; that the defendants knew at the commencement of said suit and thereafter knew that this plaintiff had never bought any merchandise or received the same or agreed to pay therefor, and was in no way responsible therefor; that they caused a summons to be issued out of said court against this plaintiff; that said summons was never in fact served upon plaintiff and that plaintiff had no knowledge of the filing of said suit or the issuance of said summons; that on February 13, 1935, defendants caused judgment to be rendered against the plaintiff in the sum of $ 219, which included the costs of the justice of the peace court; that had plaintiff known of the filing of the suit, she would have appeared in court and defended against said action; that thereafter, defendants wilfully, wrongfully and maliciously caused the plaintiff to receive no notice of said judgment until the statutory period for appeal had lapsed; that had she known of such judgment within proper time she would have appealed therefrom; that thereafter, defendants issued a writ of attachment and garnishment against the Columbia National Bank of Kansas City, where plaintiff had on deposit certain monies, and collected on said judgment the full amount thereof; that the defendants wilfully, wrongfully, unlawfully and maliciously, and by the use of perjured testimony, caused said judgment to be rendered against this plaintiff; and that as a result thereof, she was damaged in the sum of $ 2500 actual damages, and $ 5000 punitive damages.

Defendants answered by filing a joint general denial.

Because the sole question for consideration is the propriety of the trial court in sustaining demurrers at the close of plaintiff's case, we must detail the evidence more fully than otherwise would be necessary.

Plaintiff introduced the records of the Justice of the Peace court which disclose the following facts: On January 25, 1935, the Puritan Cosmetic Company, Inc., a corporation, one of the defendants in error here, filed its suit based on statement of account against Stella Parke (Mrs. Ray) Beatty and her husband, Ray Beatty, before Louis J. Mazuch, Justice of the Peace, demanding judgment for $ 208.41 and costs for goods purchased in October, 1933; that summonses were issued directed to Mr. and Mrs. Ray Beatty and were returnable February 8, 1935. The constable's return shows that he personally served the summonses on the defendants Ray Beatty and Mrs. Ray Beatty, on January 28, 1935. On February 8, the cause was continued by plaintiff to February 13, on which date a default judgment in the sum of $ 208.41 was entered by the Justice of the Peace against both Mr. and Mrs. Ray Beatty; the judgment reciting that "although the defendants had been duly and legally served with process, come not but make default," and said cause was taken up and the "evidence heard" and judgment rendered for the plaintiff in the sum of $ 208.41 and costs against both defendants. Thereafter execution was issued on March 9th, and on March 11th a summons of garnishment was served on Columbia National Bank of Kansas City; on March 22nd the cause was continued by agreement to March 26th, at which time the garnishee filed answer admitting that Mrs. Ray Beatty had on deposit in said bank money in excess of the amount of the judgment. On April 8th, the plaintiff herein filed her motion in justice of the peace court to vacate the service of the garnishment and to quash it, because there had been no service of the original summons on her, which said motion, after a hearing, was overruled and the garnishee ordered to pay the money into court, which, in due course, was done and the judgment satisfied. There was no appeal taken by Mrs. Beatty from the order of the justice of the peace overruling her motion to vacate and quash the garnishment writ. This judgment was satisfied on April 22, 1935, and on April 25, 1935, the plaintiff filed her petition in this cause against Puritan Cosmetic Company and W. Arnold Brannock, Jr., the attorney who had filed the original suit.

Harry A. Austin, clerk of the justice court, testified as a witness for plaintiff and identified the records of that court and from the records only and not from any independent recollection, testified that neither of the defendants, Mr. or Mrs. Beatty, appeared at the trial in the justice court. Elizabeth Hanger also testified as a witness for plaintiff and stated that she was formerly a partner of Ray Beatty in his business for which the bills sued on were contracted and that Mrs. Beatty had no interest in that business.

The account as filed in the justice court was made out to "Mr. and Mrs. Ray Beatty, 1023 Grand Avenue, Kansas City, Missouri," and showed sales of merchandise to them on October 2-4-20-24, 1933, totalling $ 283.41, and showed credits by three checks of $ 25 each on January 4-22, and February...