Bellington v. Clevenger

• Decision Date: 03 April 1950
• Docket Number: No. 21237,21237
• Citation: 228 S.W.2d 817
• Parties: BELLINGTON v. CLEVENGER.
• Court: Missouri Court of Appeals

Page 817

228 S.W.2d 817

BELLINGTON v. CLEVENGER.

No. 21237.

Kansas City Court of Appeals, Missouri.

April 3, 1950.

Lawson, Hale & Coleberd, Liberty, Arthur R. Kincaid, Liberty, for appellant.

J. P. Zimmerman, Kansas City, for respondent.

CAVE, Judge.

This is a malicious prosecution suit. Trial before a jury resulted in a verdict and judgment in favor of the plaintiff for actual and punitive damages. The defendant has appealed.

The amended petition is cast in two counts. The first alleges a cause of action for false arrest and imprisonment, and the second for malicious prosecution. At the close of all the evidence the court sustained defendant's motion for a directed verdict on the first count, and submitted the cause to the jury on the second count.

Under our view of the law and the evidence we need consider only one of the assignments of error presented, i. e., that defendant's motion for a directed verdict on the second count should have been sustained because the evidence fails to make a submissible issue.

In a mailcious prosecution suit the evidence must clearly establish all of the following elements: (1) The commencement or prosecution of the proceeding against plaintiff; (2) its legal causation by the defendant; (3) its termination in favor of the plaintiff; (4) the absence of probable cause for such proceeding; (5) the presence of malice therein; and (6) damage to plaintiff by reason thereof. Higgins v. Knickmeyer-Fleer Realty & Inv. Co., 335 Mo. 1010, 74 S.W.2d 805; Ripley v. Bank of Skidmore, 355 Mo. 897, 198 S.W.2d 861. In the Higgins case the court said, 74 S.W.2d at page 814:

'The charge of malicious prosecution is no favorite of the law and when made the elements necessary to sustain it must be strictly and clearly proven. It is said: 'Action for malicious prosecution are regarded by law with jealousy' and 'ought not to be favored but managed with great caution.' Newell on Malicious Prosecution, p. 21. And 18 R.C.L. at page 11, citing numerous authorities in support thereof, says that the action for malicious prosecution 'has been hedged about by limitations more stringent than those in the case of almost any other act causing damage to another and the courts have allowed recovery only when the requirements limiting it have been fully complied with.'' (Italics ours.)

This strict rule has been approved and applied in Huffman v. Meriwether, Mo.App., 201 S.W.2d 469; Madden v. Covington, Mo.App., 86 S.W.2d 190; Randol v. Kline's, Inc., 330 Mo. 343, 49 S.W.2d 112; Dye v. Loewer, Mo.App., 94 S.W.2d 948; La Font v. Richardson, Mo.App., 119 S.W.2d 25. See also, 54 C.J.S. Malicious Prosecution, Sec. 3, page 954, and Sec. 93, page 1077; 34 Am.Jur. p. 705, Sec. 5. Especially is this stringency applied where the prosecution complained of was a criminal proceeding, since public policy encourages the exposure of crime.

Defendant specifically urges that the evidence fails to prove that he legally caused or instigated the prosecution of plaintiff. The test whether a defendant causes or instigates the prosecution is: 'Was defendant actively instrumental in putting the law in force? * * * It must affirmatively appear * * * that the party sought to be charged was the proximate and efficient cause of maliciously putting the law in motion. Mere passive knowledge or acquiescence or consent in the acts of another is not sufficient to make one liable. To impose liability there must be some affirmative action by way of advice, encouragement, etc.' 38 C.J. p. 395, Sec. 23; 54 C.J.S., Malicious Prosecution, Sec. 14; Coffman v. Shell Petroleum Corp., 228 Mo.App. 727, 71 S.W.2d 97, 103; Richardson v. Empire Trust Co., 230 Mo.App., 580, 94 S.W.2d 966, 970.

With these legal principles in mind, we shall examine the evidence in the light most favorable to the plaintiff. The record discloses that Pete Bellington, the plaintiff, lived in Kansas City and was the owner of a Chevrolet Sedan; his brother, John Bellington, also lived in Kansas City. Both men were gainfully employed, but not at the same place. John frequently borrowed Pete's car without his knowledge or consent. About the first of December, 1944, John took his brother's car and with three other men, Zullick, Elly and Thrift, went duck hunting on the Missouri river in Ray County. They entered the farm operated by defendant and parked the car near the levee and went toward the river to hunt ducks. After a lapse of about three hours they returned to the car and in driving out of defendant's field, broke an axle. They noticed defendant's tractor a short distance away. John and his three hunting companions used the tractor, without the consent or knowledge of the defendant, in attempting to pull their damaged car to the highway. The radiator had been, drained for the winter and, due to this fact, the motor got very hot and John and his companions poured water into the radiator, which caused severe damage to the motor. They discontinued their efforts to move the car and walked to a filling station on the highway, near defendant's farm, for the purpose of getting a ride into Kansas City. While they were there defendant appeared and questioned them about the use of the tractor.

John Bellington testified that, while he and his hunting companions were at the filling station, Mr. Clevenger and some other man drove up in a truck and Mr. Clevenger '* * * wanted to know what we was going to do about that tractor and we told him we would pay for any damages we had done to the tractor. He wanted to know whose car it was down there and I told him it belonged to my brother in Kansas City, Pete Bellington. * * * He said he wanted his tractor fixed and we all told him we would pay for any damages that was done to the tractor and we left, * * * . I told him who I was, I told him I was driving the car, I was Pete Bellington's brother and the car belonged to him and one of the other fellows said, 'we will give you all our names so you will know we are not running off.' He said, 'I don't care anything about your names. I want my tractor fixed.' I told him the car didn't belong to us. He also said he was going to keep the car until the tractor was fixed. I told him again the car didn't belong to us, it was my brother's. He said he would have my brother in jail, was the way he said it, he would have my brother in jail, have him arrested or have him in jail.'

The next day John Bellington and a friend went to the field where the car was parked and put in a new axle. While they were there Mr. Clevenger came and told them to leave the car there until they paid for the damage to his tractor. At that time he stated the amount but John did not remember what it was. The car was left there at that time but within the next night or two John went down and drove the car out some time after two o'clock in the morning. He went out a different road than the one the hunters used in driving into the farm. They never paid for the damage to the tractor.

Witness Elly testified: 'He (Clevenger) drove up and wanted to know whose car that was. We told him it was our car and then he wanted to know what we was going to do about it and we told him--about his tractor, and we told him, we gave him our names and that we would come back down and make it right with him for any damages we had done to the tractor. He said he was going to keep the car there until we straightened it out, all damages to his tractor. Q. He claimed the tractor then, Mr. Clevenger? A. Yes, sir. For any damage done to his tractor. We told him the car didn't belong to us, the fellow probably didn't even know it was down there. We would like to get it out of there, it belonged to Pete Bellington, Kansas City one of these fellow's brother that was with us. We would like to get it back up there to him. He said he was going to keep the car there until the tractor was fixed, if we didn't get it fixed somebody was going to get arrested and in trouble over it and so we offered to give him our names and he said to keep the names, he was going to keep the car. Again we told him it didn't belong to us, we wanted to get it out, it belonged to Pete. He just drove on off and said he was going to keep the car, * * *. Q. But you didn't give him your name? A. He didn't wait for it. He said he would just keep the car.'

Plaintiff, Pete Bellington, testified concerning his employment, and that his brother, John, frequently borrowed his car for use without his knowledge; that he knew nothing about the duck hunting trip at the time of his arrest; that about 6:30 or 7:00 o'clock p.m., two police officers appeared at his home and arrested him on a warrant, took him to the city jail and kept him there until about midnight, when Mr. Paugh, a deputy sheriff, came and took him to Richmond, the County Seat of Ray County; that he spent the remainder of the night at the home of the deputy sheriff and the next morning they had breakfast and went to the prosecuting attorney's office. '* * * and we talked, the three of us, and he (prosecutor) called Mr. Clevenger and after his conversation with Mr. Clevenger he told me to go back to Kansas City * * *.' On cross-examination he testified: 'Q. Now, you didn't know Mr. Dale (prosecuting attorney) or Mr. Paugh? A. No, sir.

'Q. You never heard of them before? A. No, sir.

'Q. So far as you know, they didn't know you? A. That's right.

'Q. But when you explained your situation and told them it was a case of mistaken identity, they turned you loose? A. Yes, sir.'

Plaintiff testified at some length concerning the effect the arrest had had on his health, peace of mind, and ability to work,...