Bonzo v. Kroger Grocery & Baking Co.

• Decision Date: 21 February 1939
• Docket Number: 35549
• Parties: Gerald Thomas Bonzo, Appellant, v. Kroger Grocery & Baking Company, a Corporation, and Edgar A. Fuhr, Respondents
• Court: Missouri Supreme Court

125 S.W.2d 75

344 Mo. 127

Gerald Thomas Bonzo, Appellant, v. Kroger Grocery & Baking Company, a Corporation, and Edgar A. Fuhr, Respondents

No. 35549

Supreme Court of Missouri

February 21, 1939

Appeal from Circuit Court of St. Louis County; Hon. Robert W McElhinney, Judge.

Affirmed.

Fred Berthold, Berthold & Chase and Louis P. Wagner Jr., for appellant.

(1) On demurrer, plaintiff's evidence is accepted as true, and plaintiff is given the benefit of any and all facts and circumstances, and the reasonable inferences therefrom tending to support his theory of the case. Schneider v. Term. Railroad Assn., 107 S.W.2d 789; Gray v. Columbia Terminals Co., 331 Mo. 73, 52 S.W.2d 809; Tash v. St. L.-S. F. Ry. Co., 335 Mo. 1148, 76 S.W.2d 690; Gilliland v. Bondurant, 332 Mo. 881, 59 S.W.2d 679; Williams v. K. C. So. Ry. Co., 257 Mo. 87, 165 S.W. 788; Riggs v. Met. St. Ry. Co., 216 Mo. 304, 115 S.W. 969; City of Festus v. Kansler, 105 S.W.2d 648; Troll v. Ehrler Drayage Co., 254 Mo. 337, 162 S.W. 185; Townsend v. Boatmen's Natl. Bank, 104 S.W.2d 665; Young v. Wheelock, 333 Mo. 992, 64 S.W.2d 954. (2) Master is liable in action for malicious prosecution, if its servant had one arrested and prosecuted for robbery, where the servant acted maliciously and without probable cause. Polk v. M.-K.-T. Ry. Co., 111 S.W.2d 139; Dye v. Loewer, 94 S.W.2d 950; Pritchett v. Northwestern Mut. Life Ins. Co., 73 S.W. 820; Randol v. Kline's, Inc., 18 S.W.2d 500; Hines v. Fireman's Fund Ins. Co., 235 S.W. 174; Stubbs v. Mulholland, 67 S.W. 650; Coffman v. Shell Petroleum Corp., 71 S.W.2d 97. (3) The court erred in directing a verdict against plaintiff and in favor of both defendants, because the evidence clearly showed: (a) Prosecution of plaintiff. (b) Its legal causation by both defendants. (c) Its termination in favor of plaintiff. (d) The absence of probable cause for the prosecution. (e) The presence of malice by both defendants. (f) Damage to the plaintiff. LaChance v. Natl. Pigments & Chemical Co., 104 S.W.2d 693; Dawes v. Starrett, 82 S.W.2d 55; Higgins v. Knickmeyer-Fleer Realty & Inv. Co., 74 S.W.2d 812. (4) Whether a witness testified falsely in procuring the information is a question of fact for the jury. Dawes v. Starrett, 82 S.W.2d 43. (5) The inference or presumption of probable cause which the information created was overcome and wiped out by plaintiff's acquittal and an inference of want of probable cause arose and supplied that essential element of his cause of action. Dawes v. Starrett, 82 S.W.2d 43. (6) In malicious prosecution malice may be inferred from want of probable cause. Randol v. Kline's, Inc., 18 S.W.2d 507. (7) In action to recover damages for malicious prosecution, erroneous, belief, however bona fide, not based on facts amounting to probable cause, is no defense. Alexander v. Emmke, 15 S.W.2d 868. (8) Conviction of juvenile under the age of 17 years is inadmissible in evidence. Sec. 2591, R. S. 1919; Sec. 14136, R. S. 1929.

Harold F. Hecker, Lyon Anderson and Roby Albin for respondents; Leahy, Walther, Hecker & Ely of counsel.

(1) Where a person accused of crime is bound over to the grand jury at the preliminary hearing, a presumption of probable cause is established, which can only be overcome by substantial evidence that the person procuring the arrest and prosecution did not believe the accused to be guilty, but induced the action of the court by perjured testimony or other improper means. Sharp v. Johnston, 76 Mo. 660; Wilkinson v. McGee, 265 Mo. 574; Peck v. Chouteau, 91 Mo. 138; Steppulin v. C. G. W. Ry. Co., 199 Mo.App. 571, 204 S.W. 579; Foster v. C., B. & Q. Ry. Co., 14 S.W.2d 561; Higgins v. Knickmeyer-Fleer Realty & Inv. Co., 74 S.W.2d 805. (2) The record in this case fails to show any evidence to sustain the charge that the action of the court at the preliminary hearing was procured through false or perjured testimony. (a) To sustain a charge of perjury it must be shown that the person giving such testimony acted willfully, corruptly, and with knowledge of the falsity of the matter sworn to. 48 C. J. 897; Bishop's Crim. Law, sec. 1048; State v. Higgins, 124 Mo. 650; United States v. Otto, 54 F.2d 279. (b) Plaintiff's evidence that he was innocent is not sufficient to make a case for the jury on the issue of perjury or false swearing. Laughlin v. St. Louis Union Trust, 50 S.W.2d 92; Boeger v. Langenberg, 97 Mo. 397. (3) The prosecuting attorney is presumed to have made a sufficient investigation to satisfy himself of the probability of the guilt of the accused before issuing an information. The filing of the information is prima facie evidence of probable cause. Wilkinson v. McGee, 265 Mo. 574; Sharp v. Johnston, 76 Mo. 660; Higgins v. Knickmeyer-Fleer Realty & Inv. Co., 74 S.W.2d 805.

Bohling, C. Cooley and Westhues, CC., concur.

OPINION

BOHLING

Action for malicious prosecution. The petition is in two counts, each count praying damages in the amount of $ 50,000 ($ 25,000 actual and $ 25,000 punitive). Cast on demurrer at the close of his evidence, plaintiff appeals.

Edgar A. Fuhr was in charge of the grocery department of a store of the Kroger Grocery and Baking Company, a corporation, located at 1239 Sutter Avenue, University City, St. Louis County, Missouri. Louis Gephardt was in charge of the meat department of said store. Fuhr and the corporation are defendants. About 7:20 A. M. on May 11, 1927, two young men entered the store and, by means of a gun, took approximately $ 70 in money, the property of the corporate defendant. About 6:20 A. M. on June 22, 1927, at Woodson and Sutter Streets, two men using a gun, robbed Fuhr, while he was on his way to work, of approximately $ 98, also the property of the corporate defendant. On July 2, 1927, Gerald T. Bonzo, plaintiff, entered said Kroger store and Fuhr recognized him as one of the parties who had committed the robberies. After Bonzo's departure Fuhr made inquiry and ascertained the name of Bonzo. We understand another robbery occurred at the Kroger store on July 7, 1927, and that Fuhr again recognized defendant as one of the offenders.

Upon separate affidavits signed by Fuhr, dated October 11, 1927, charging plaintiff with the offense of robbery in the first degree, in one, on May 11th and, in the other, on June 22, 1927, plaintiff was arrested under warrants issued. In the interim between the robberies and the issuance of the warrants, we understand the police informed Fuhr they had a letter advising that plaintiff was at Linn, Missouri, on July 7, 1927. On October 14th in each of said proceedings, the Justice of the Peace found "that defendant Gerald T. Bonzo is under the age of seventeen years, and this cause is accordingly certified to the juvenile division of the circuit court of St. Louis county for further adjudication." On October 28, 1927, the circuit court, juvenile division, after a hearing, entered its findings and orders in each of said proceedings stating that "there is probable cause to believe that the said defendant is guilty of the charge of robbery, 1st degree, as charged in the information herein and it is ordered that said defendant be held over to await the action of the grand jury." Thereafter, and under date of November 17, 1927, the prosecuting attorney of St. Louis County, Missouri, filed separate informations charging Bonzo, under the general law, with first degree robbery, in one, on May 11th, and, in the other, on June 22, 1927; and the record discloses another entry of the "circuit court, juvenile division," under date of January 6, 1928, wherein, after a hearing, said court, juvenile division, finds in each of said proceedings that "defendant is not guilty."

Each count of plaintiff's petition charges that the statements of fact in Fuhr's affidavits and the testimony of Fuhr and the agents of defendant corporation as to the facts at each of said proceedings in the circuit court, juvenile division, were false, fraudulent and perjured.

To sustain said allegations plaintiff testified that he did not commit any of the robberies and, adducing corroborating testimony from other witnesses, that at the time of the robberies on May 11th and June 22nd he was at the Fulton Iron Works Company, and on July 7th at Linn, Missouri, where he remained until sometime in September or October, 1927. He admitted being in said Kroger store on July 2nd, but testified he left for Linn, Missouri, on July 3rd. Plaintiff and his father were employed at the Fulton Iron Works; the father reporting for work at 7 A. M., while plaintiff's duties required his presence at 8 A. M. The Iron Works was located approximately six or seven blocks from the Kroger store and approximately two and one-half blocks from Woodson and Sutter Avenues. Plaintiff testified he accompanied his father to work. On May 11th plaintiff "punched" the time clock of said Iron Works at 6:37 A. M., and on June 22nd, at 7:30 A. M. He testified he remained at the Iron Works and assisted his father until it was time for him to perform his own duties. According to plaintiff's testimony he was identified as one of the robbers on May 11th by both Fuhr and Gephardt prior to the proceedings in the circuit court, juvenile division, and as one of the robbers of June 22nd by Fuhr. He said: "There wasn't any doubt about Mr. Fuhr's identification of me at the store. He said positively that it was me. And at these hearings Mr. Fuhr picked me out right away, and so did Mr. Gephardt."

The litigants agree that the constitutive elements of an action for malicious prosecution are: "(1) The commencement or prosecution of the proceedings 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...