Boquist v. Montgomery Ward & Co., Inc., KCD

• Court: Missouri Court of Appeals
• Writing for the Court: Before DIXON; WASSERSTROM
• Citation: Boquist v. Montgomery Ward & Co., Inc., 516 S.W.2d 769 (Mo. App. 1974)
• Decision Date: 02 December 1974
• Docket Number: No. KCD,KCD
• Parties: William BOQUIST, Respondent, v. MONTGOMERY WARD & CO., INC., Appellant. 26607.

Page 769

516 S.W.2d 769

William BOQUIST, Respondent, v. MONTGOMERY WARD & CO., INC., Appellant.

No. KCD 26607.

Missouri Court of Appeals, Kansas City District.

Dec. 2, 1974.

James F. Duncan, Thomas R. Brous, Kansas City, for appellant.

Lloyd S. Hellman, Ann M. Whittier, Achtenberg, Sandler & Balkin, Kansas City, for respondent.

Before DIXON, C.J., and SHANGLER, WASSERSTROM and TURNAGE, JJ.

WASSERSTROM, Judge.

This malicious prosecution action arises from defendant's having instigated prosecution of plaintiff for the alleged shoplifting of a $24.97 car coat. Defendant appeals from a jury verdict in favor of plaintiff for both compensatory and punitive damages.

On the brisk fall morning of December 12, 1970, plaintiff (then 57 years of age) and his friend Sue Jones were Christmas shopping. They were particularly interested in finding a pair of women's white galoshes to be sent to plaintiff's cousin. This interest led them to the Factory Outlet Shoe Store at 39th and Main in Kansas City, Missouri, where two salesmen noticed plaintiff's new frost blue car coat. While discussing the coat's unusual fabric, one of the salesmen, McIver McQueen, actually touched it.

After leaving the shoe store, the couple decided to go to defendant's store located at 3040 Troost Avenue. They entered the store and after quickly discovering that defendant did not carry the galoshes sought, they separated and each shopped alone for some period of time. For a short while during this period, plaintiff browsed at the men's coat rack, but he testified that he did not try on any of the coats. Thirty or forty minutes after entering the store, he met Jones at the check-out counter and waited off to one side while she paid for a tie. They then left the store. Immediately after leaving the building, plaintiff, an antique car enthusiast, stopped for a few seconds to look at a model antique car in the store window. At this point, he was tapped on the shoulder by Charles Weir and asked to step back inside. Weir was an off-duty policeman, who was working part-time as one of defendant's security guards. He had been observing plaintiff inside the store and had concluded to his own satisfaction that plaintiff had shoplifted the car coat he was wearing as he left the store.

Upon stepping back inside the store, plaintiff was quickly taken to a room in the rear of the store, where the car coat was confiscated and plaintiff was 'frisked' and questioned by Weir. After Weir told plaintiff that he was under arrest for shoplifting the car coat, plaintiff responded by insisting: that he had bought the coat; that employees of a nearby shoe store had seen him wearing the coat earlier in the day; that he had the receipt at home; and that he would show Weir the receipt if Weir would go home with him. He also produced identification in the form of his Kansas City Power & Light Employee Identification Card, with his picture attached. Ignoring those responses, though verified by Jones who was also present, Weir proceeded to check with the police station records section to learn whether plaintiff had a police record. This inquiry disclosed no record, other than traffic violations. During the questioning Weir also discovered that, except for the price tag which was visible from the back, all of the garment tags were missing from the coat. They were not found on plaintiff, and a search of the store turned up only one tag that could possibly have been on the coat. Plaintiff also told Weir that he thought he had the missing tags at home. Nevertheless, Weir then proceeded to call a paddy wagon and he prepared an offense report setting forth the commission by plaintiff of a violation of a municipal ordinance.

After arrival of the paddy wagon, plaintiff was escorted by the police through the store to the police wagon, in which he was transported to the police station and booked. This procedure included fingerprinting, the taking of a 'mug-shot,' and the issuance of a citation charging the intentional stealing of the car coat. This citation was concededly in response to and based upon Weir's offense report. It gave notice of December 15, 1970, as the hearing date. After a 30 to 45 minute stay, plaintiff posted a $25.00 cash bond and was permitted to leave.

He immediately then went to the Factory Outlet Shoe Store in order to be certain McQueen would remember both him and the coat. Next he went to his home and found a Ward's cash register receipt for $24.97 and three clothing tags: a material description tag; a washing tag; and a stock control tag. He then sought legal counsel, who secured a two week continuance of the Police Court hearing.

Plaintiff's counsel proceeded to investigate the incident and on December 18, 1970, he sent a letter to defendant, which was received by William Voss, defendant's house counsel, detailing the evidence he had marshalled in his client's behalf and asking defendant to request a dismissal of the charges. Throughout a series of mail and telephone correspondence, defendant steadfastly refused to intercede on the ground that the matter was beyond its control and in the hands of the City Counselor. Voss told plaintiff's counsel that if he had substantial exculpatory evidence, he should take it to the prosecutor.

On December 29, 1970, a hearing was held in the Kansas City Municipal Court. After a full hearing, including testimony by Weir, the charge was dismissed.

Plaintiff then brought this action for damages. In his original petition, he sought recovery in three separate counts on the theories of false arrest, malicious prosecution and conversion of the coat which had been seized by defendant on December 12th and never returned. Immediately prior to trial, however, he amended his original petition by merging all allegations concerning the false arrest with those pertaining to malicious prosecution, thus leaving the petition with only two counts.

The jury found for plaintiff on both counts. On Count I, which was submitted on the theory of malicious prosecution, ten members of the jury signed a verdict for $10,000 actual damages and $46,000 punitive damages. On Count II, which was submitted on the theory of conversion of the car coat, the jury unanimously awarded $24.97 actual damages and $100 punitive damages. Defendant raises no objection relative to the verdict under Count II. However, it raises six assignments of error against recovery under Count I.

I.

Defendant's first assignment of error is that 'plaintiff erroneously and to defendant's prejudice joined separate and distinct causes of action for false arrest, false imprisonment and malicious prosecution into a single count.' This point fails to comply with the clear requirement of Rule 84.04(d), V.A.M.R. that '(t)he points relied on shall state briefly and concisely what actions or rulings of the court are sought to be reviewed and wherein and why they are claimed to be erroneous' and, therefore, preserves nothing for review. See Blackwell Printing Co. v. Blackwell-Wielandy Co., 440 S.W.2d 433 (Mo.1969), and Picone v. DeStefano, 453 S.W.2d 671 (Mo.App.1970). The purpose for the above rule is well illustrated by the situation here, for a survey of the record leaves in doubt when and how, if at all, defendant requested timely relief by the trial court in this respect.

In any event, defendant errs in its assumption that the allegations pertaining to matters preliminary to the instigation of prosecution interjected a separate cause of action for false arrest independent of the cause of action for malicious prosecution. It is customary and proper in malicious prosecution cases to consider all the circumstances preliminary to and surrounding the institution of the prosecution. See for example Randol v. Kline's, Inc., 330 Mo. 343, 49 S.W.2d 112 (1932); Huffstutler v. Coates, 335 S.W.2d 70 (Mo.1960); Hoene v. Associated Dry Goods Corp., 487 S.W.2d 479 (Mo.1972); Polk v. Missouri-Kansas-Texas R. Co., 351 Mo. 865, 174 S.W.2d 176 (1943). Since evidence with respect to these matters is relevant to proof of malicious prosecution, allegations relative thereto must also be deemed part of the pleading of that cause of action.

Still further, an examination of the whole transcript reveals that any potential confusion arising from the alleged pleading of more than one claim for relief in the same count was remedied at a conference in chambers immediately before trial, when plaintiff's counsel specifically elected to proceed only on the theory of malicious prosecution under Count I. It was noted in McHugh v. St. Louis Transit Co., 190 Mo. 85, 88 S.W. 853 at 855 (1905), a case decided under an early statute to which the current Rule 55.11 can be traced, that if a 'petition improperly joins two different causes of action in the same count . . . (the) remedy is by timely motion to require the plaintiff to elect upon which count he will proceed to trial.' The same purpose was served here by Plaintiff's voluntary pre-trial election. Defendant's failure to demonstrate prejudice from this matter of pleading is reinforced by the fact that plaintiff did ultimately submit Count I solely on the malicious prosecution theory.

II.

Defendant's next point is that the trial court erred in refusing to direct a verdict for the defendant on the ground that plaintiff failed to prove that the defendant had 'actively urged continuation of the prosecution.' Plaintiff replies to this point that his cause of action against defendant is not based upon any theory of wrongful continuation of a prosecution begun initially upon reasonable grounds; instead, plaintiff insists that his cause of action is premised upon an initial lack of probable cause at the very beginning when defendant first instigated the prosecution. Defendant rejoins: 1) that plaintiff cannot complain of the original initiation of prosecution, since Weir was protected in doing so under § 84.440 RSMo 1969, V.A.M.S.; and 2) that '(t) hroughout trial...