Burnett v. Griffith

• Decision Date: 16 May 1989
• Docket Number: No. 69147,69147
• Citation: 769 S.W.2d 780
• Parties: Karl E. BURNETT, Respondent-Appellant, v. Roger GRIFFITH, et al., Appellants-Respondents.
• Court: Missouri Supreme Court

Page 780

769 S.W.2d 780

Karl E. BURNETT, Respondent-Appellant, v. Roger GRIFFITH, et al., Appellants-Respondents.

No. 69147.

Supreme Court of Missouri En Banc.

May 16, 1989.

Ronald M. Sokol, St. Joseph, for respondent-appellant.

George A. Barton, Kansas City, Robert Randolph, St. Joseph, for appellants-respondents.

ROBERTSON, Judge.

This consolidated appeal arises out of a suit for assault and battery, false imprisonment and malicious prosecution. The plaintiff, Karl Burnett, sued Roger Griffith, a security guard, and Griffith's employers, East Hills Merchants' Association and Belt Highway Investment Company. The jury returned a verdict against all defendants on the assault and battery count, awarding Burnett $1,500 in actual damages. The jury found in favor of the guard, Griffith, but against his employers East Hills Merchants Association (East Hills) and Belt Highway Investment Company (Belt Highway) on the false imprisonment and malicious prosecution counts, awarding the plaintiff $5,000 and $20,000, respectively, in actual damages. The trial court refused to instruct the jury on Burnett's claims for punitive damages. All parties appealed.

Prior to opinion, the Court of Appeals, Western District, transferred the case to this Court to determine whether the rule announced in Douglass v. Safire, 712 S.W.2d 373 (Mo. banc 1986), applied to the inconsistent verdicts reached by the jury in this case. The jury received instructions on the false imprisonment claim based on a theory of respondeat superior. The jury exonerated Griffith, the employee, but assessed liability against East Hills, the employer. This Court held that Douglass required a party to object to inconsistent verdicts before the jury is discharged or waive the error. Having failed to do so, under the holding in Douglass, Burnett waived his right to complain of the error. Burnett v. Griffith, 739 S.W.2d 712, 715 (Mo. banc 1987). As a result, East Hills was entitled to a verdict as a matter of law on the false imprisonment claim.

We did not reach the remaining issues presented on appeal by the parties and retransferred the case to the Court of Appeals, Western District, for resolution. The court of appeals heard the appeals en banc. The majority opinion held that East Hills was entitled to judgment on the charge of malicious prosecution because there was no evidence that East Hills encouraged, instigated or advanced the prosecution of Burnett. However, the Court of Appeals affirmed the jury's verdict and award of actual damages on the assault and battery count. The majority relied on this Court's decision in Sanders v. Daniel International Corp., 682 S.W.2d 803 (Mo. banc 1984), and held the evidence insufficient to submit the issue of punitive damages to the jury. Three judges dissented on the issue of the submissibility of the punitive damages, arguing that the majority misinterpreted the level of malice necessary to submit a claim for punitive damages. Based on their belief that MAI 16.01 provided the proper standard for a submission of punitive damages, the dissenters certified the case to this Court, citing a conflict between the majority opinion and Fordyce v. Montgomery, 424 S.W.2d 746 (Mo.App.1968), and Chapman v. Duraski, 721 S.W.2d 184 (Mo.App.1986). We have jurisdiction. Mo. Const. art. V, § 10.

The issue before us is whether MAI 16.01 correctly states the law with regard to the submission of punitive damages in an intentional tort case. We hold it does not. The judgment of the trial court is, therefore, affirmed in part, reversed in part, and remanded with directions.

I.

Belt Highway Investment owns the East Hills Shopping Center in St. Joseph, Missouri. The tenants of the shopping center, including The Ground Round, a restaurant, were members of the East Hills Merchants' Association.

On July 9, 1983, Burnett and three other men were standing outside of the Ground Round in the East Hills parking lot near Burnett's automobile. Burnett had just left the restaurant. Griffith, a St. Joseph police officer moonlighting as a security guard for East Hills, arrived on his motorcycle and parked behind Burnett's car. At this point, accounts of events diverge according to the interests of the witnesses. Taken in the light most favorable to Burnett the evidence was that Griffith approached Burnett and, without making any inquiry as to what the group's purpose was in being at the shopping center and without identifying himself as a shopping center employee, ordered Burnett and the others to leave. Burnett told Griffith he would comply if Griffith would move his motorcycle. Instead, Griffith demanded identification. Burnett, already holding car keys, displayed a billfold containing his driver's license. Griffith slapped both from Burnett's hand; the keys and billfold fell to the pavement. Griffith ordered Burnett to lean against the car for purposes of a search. In "assisting" Burnett in assuming the search position, Griffith kicked at Burnett's feet causing Burnett to lose his balance and strike his face against the car. Griffith manacled Burnett's hands and used a long flashlight inserted between Burnett's arms and back to twist and pry his arms upward. Following the search, Griffith placed Burnett under arrest and, with the assistance of another police officer who was called to the scene, escorted Burnett to the St. Joseph police station. Griffith charged Burnett with disorderly conduct and willful misuse of premises, ¹ both municipal ordinance violations. Burnett was released after posting bond.

The following day, Burnett went to the manager of the Ground Round and protested Griffith's conduct. The manager expressed his concern and accompanied Burnett to the office of Betty Hartman, the on-site manager of the shopping center, with the intention of resolving the complaint. Hartman, however, was unsympathetic and told Burnett that shopping center merchants had experienced problems with people drinking in the parking lot and announced she felt it was time to make an example. Prior to the incident involving Burnett, East Hills had written to St. Joseph authorities asking that the willful misuse ordinance be enforced at East Hills to promote security in the parking areas.

Burnett was tried in the St. Joseph municipal court on the ordinance violations. That court acquitted Burnett of all charges.

II.

On appeal, East Hills contends that the trial court erred in failing to sustain its motion for judgment notwithstanding the verdict on the malicious prosecution count. East Hills argues there was no evidence that East Hills, apart from the conduct of Griffith, instigated the prosecution of Burnett for violation of the city ordinances. On this count the jury returned verdicts exonerating Griffith, as employee, but holding against East Hills the employer. The malicious prosecution claim, however, was not based solely on the theory of respondeat superior.

In this Court's prior opinion in this case, we suggested that a jury could render a verdict against East Hills, despite a verdict in favor of Griffith, if the evidence showed conduct by other officers, agents or employees of East Hills sufficient to prove the elements of malicious prosecution. Burnett, 739 S.W.2d at 716. However, East Hills' liability may not rest on Griffith's acts.

In reviewing a trial court's denial of a motion notwithstanding the verdict, we examine the evidence in the light most favorable to the party against whom the judgment is sought. McGuire v. Wilcher, 689 S.W.2d 719, 721 (Mo.App.1985). Our review is conducted against the requirement that proof of the essential elements of malicious prosecution be strict and clear. Zahorsky v. Griffin, Dysart, Taylor, Penner and Lay, P.C., 690 S.W.2d 144, 151 (Mo.App.1985).

The elements of a cause of action for malicious prosecution include, among the six ingredients, ² proof that the defendant instigated the prosecution. Sanders, 682 S.W.2d at 807. Instigation requires proof that the defendant stimulated, promoted or encouraged the specific action taken. Linkogel v. Baker Protective Services, Inc., 626 S.W.2d 380, 384 (Mo.App.1981). Mere passive knowledge of or acquiescence in the acts of another is not sufficient. Palermo v. Cottom, 525 S.W.2d 758, 764 (Mo.App.1975).

In this case no evidence shows that anyone associated with East Hills, except Griffith, instigated Burnett's arrest or prosecution. Griffith alone confronted Burnett in the parking lot, took him to the police station and prepared the charges. No evidence exists that Griffith consulted with or received any directions from anyone at East Hills about Burnett's arrest; to the contrary, the evidence shows that no one from East Hills went so far as to investigate the matter following Burnett's arrest. Betty Hartman's acknowledgment of the general request for enforcement of the city ordinance and her lack of sympathy for Burnett's difficulties, when he complained of Griffith's conduct, show a willingness on the part of East Hills to accept Griffith's judgment as a police officer (though acting as East Hills' employee in this case) as to the conformance of Burnett's conduct to the city ordinances. We do not believe the mere request by a commercial citizen to the police department that ordinances be enforced--a request made well in advance of the arrest in this case, without any knowledge of Burnett's activities and without any specific direction to effect Burnett's arrest or prosecution--is a sufficient predicate for liability for either East Hills or Belt Highway.

Once consideration of Griffith's conduct is eliminated, the case is barren of any proof that East Hills instigated the prosecution of Burnett. The failure of proof of this element of the tort ends the inquiry. The trial court erred in failing to direct a verdict for East Hills and Belt Highway Investment on the malicious prosecution count.

III.

East Hills next contends the trial court erred in failing to...