Boyers v. Lindhorst
| Decision Date | 01 December 1919 |
| Docket Number | No. 20424.,20424. |
| Parties | BOYERS v. LINDHORST. |
| Court | Missouri Supreme Court |
Appeal from St. Louis Circuit Court; William T. Jones, Judge.
Action by John A. Boyers against Frank Lindhorst. Judgment for defendant, and plaintiff appeals. Affirmed.
James T. Roberts, of St. Louis, for appellant.
O. J. Mudd and Charles H. Franck, both of St. Louis, for respondent.
An action for damages in the sum of $10,000. The petition counts respectively on false imprisonment and malicious prosecution. Plaintiff being cast on the trial to a jury has in due course prosecuted his appeal to this court.
Defendant was the holder of a note secured by a deed of trust on a lot owned by the plaintiff in the city of St. Louis which was fenced but otherwise unimproved. Plaintiff defaulting in the payment of interest, a foreclosure sale was had under the deed of trust, through which and a mesne conveyance defendant acquired the full title. After some specious efforts to redeem, the plaintiff began tearing down and removing the fence inclosing the lot. According to defendant's version, which the jury seem to have accepted on knowledge of plaintiff's action coming to him, he went to plaintiff for an explanation of his conduct and to expostulate with him. Having previously learned from plaintiff's neighbors that plaintiff was reputed amongst them to be a dangerous man, he took a police officer with him to the interview for protection against any violence that the plaintiff might exhibit. No particular altercation took place, but plaintiff told defendant in effect that the foreclosure sale was invalid, that he (defendant) had no title, and that he could not stop plaintiff from taking the fence down. Thereupon defendant requested the officer to arrest plaintiff for tearing down the fence. Pursuant to the request, plaintiff was placed under arrest, a police patrol wagon was called, and plaintiff was therein conveyed to the police station. There the officer, without the knowledge or consent of the defendant, then or thereafter, preferred a charge of trespassing against the plaintiff. Plaintiff was locked up, but later released on bond. On the trial a few days afterwards he was acquitted.
In the trial of this cause the court, over the objection of the plaintiff, admitted in evidence the testimony of several witnesses offered by the defendant to the effect that the general reputation of plaintiff for peace and quiet in the community in which he lived was bad. This is assigned as error and is the sole matter preserved by the motion for a new trial for consideration on this appeal.
1. Appellant's chief contention is that his reputation was not put in issue by the pleadings, in that he did not ask for compensation for injury to ins reputation. Whatever construction may be put upon the petition in that respect, it is indubitably true that the essential issues tendered] by the count on malicious prosecution were malice and want of probable cause. On these it was unquestionably admissible for the defendant to introduce in evidence in chief proof of the general bad character of the plaintiff, if known to him at the time of the prosecution. Stubbs v. Mulholland, 168 Mo. 47, 67 S. W. 650; Peek v. Choteau, 91 Mo. 138, 3 S. W. 577, 60 Am. Rep. 236; Gregory v. Chambers, 78 Mo. 294; Warren v. Flood, 72 Mo. App. 199.
But the count on malicious prosecution avers that by reason of such prosecution the plaintiff "was subject to great pain of mind, humiliation, mortification, and disgrace," and for these he asks compensation. From the use of the terms "humiliation" and "mortification," it may be inferred that the plaintiff claimed that he had suffered either in his own esteem, or in that of others; but by the use of the term "disgrace" he necessarily charged that he had been brought into disrepute, so that the proof of general bad reputation was admissible on the measure of damages. Peck v. Choteau, supra.
2. Appellant next makes the point that, even though evidence of the general bad reputation of plainti...
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...testimony cannot be considered. The only objection made thereto was general and no motion was made to strike it out. Boyers v. Lindhorst, 280 Mo. 5, 216 S. W. 536; Haines v. Railway, 193 Mo. App. 453, 185 S. W. 1187. There was no ruling on this objection and no exception was saved thereto. ......
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