Butcher v. Hoffman

• Decision Date: 03 March 1903
• Citation: 73 S.W. 266,99 Mo. App. 239
• Parties: BUTCHER v. HOFFMAN.
• Court: Missouri Court of Appeals

73 S.W. 266

99 Mo. App. 239

BUTCHER v. HOFFMAN.

Court of Appeals at St. Louis, Missouri.

March 3, 1903.

MALICIOUS ARREST—CONSULTATION OF ATTORNEY — PROBABLE CAUSE — EVIDENCE — SUFFICIENCY—PRESUMPTION OF MALICE.

1. Where the state of facts insisted on by plaintiff rendered larceny by him of certain goods impossible, while that insisted on by defendant tended strongly to show larceny, the mere fact that defendant stated his contention to the prosecuting attorney, and was advised that plaintiff was guilty, did not exonerate him of liability for malicious prosecution.

2. Evidence in an action for malicious arrest for larceny examined, and held to show a want of probable cause.

3. Where want of probable cause is shown, the burden is on defendant to show that he acted without malice.

Appeal from Circuit Court, Jefferson County; Frank R. Dearing, Judge.

Action for malicious prosecution by Charles Butcher against Emanuel Hoffman. From a judgment for plaintiff, defendant appeals. Affirmed.

Sam Byrns, for appellant. E. J. Bean and Green & Berkley, for respondent.

Statement of Facts and Opinion.

GOODE, J.

This is an action for malicious prosecution, begun in the circuit court of Jefferson county, Mo., on June 7, 1901, and tried in said court on January 15, 1902, on an amended petition which avers:

That the plaintiff was a married man on and prior to April 14, 1901, and was living in Jefferson county, Mo. That he was living as a tenant, with his family, on the farm of the defendant. That on or about said 14th of April the defendant, maliciously contriving and intending to injure him in his good name, fame, and reputation, appeared before L. B. True, a justice of the peace, and then and there, maliciously and without probable cause, did make an affidavit and lodge a charge before said justice on April 13, 1901, at the said county of Jefferson, state of Missouri, that this plaintiff did unlawfully steal, take, and carry away from his premises (E. Hoffman's):

                One half barrel of mess pork, of value.. $ 5 50
                One half bushel of navy beans, of value    2 35
                One half barrel of sauerkraut, of value    2 35
                One case of tomatoes, of value .........   1 80
                One half bushel peas, of value .........     80
                Two pounds of green tea, of value ......   1 60
                Two pounds of Java coffee, of value ....   1 00
                Two pounds caraway seed, of value ......     24
                One bushel of onions, of value .........   1 80
                Two pieces of breakfast bacon, of value    1 96
                Fifty pounds of granulated sugar, of
                  value ................................   2 75
                One large ham, of value ................   2 64
                                                         ______
                    All being of the value of .......... $24 79
                

—And being the personal property of said Hoffman. That without probable cause he maliciously signed said affidavit, and that the justice issued a warrant on which he was arrested, and was brought before said justice. Was poor, and could not give bond. Was cast into jail to await trial. That he was in jail from the 15th day of April until the 25th day of April, 1901. That he was tried before said justice. That the defendant was a witness against him and testified, and that he was acquitted by the justice. That while in jail he contracted a disease of the eyes. That his sight is impaired. That he suffered in body, and has been humiliated and disgraced, injured in his good name, fame, and reputation. And that his actual damage is $5,000, and punitive damage $5,000.

The defendant answered by a general denial.

The evidence showed that in the spring of 1901 the plaintiff, Charles Butcher, obtained information that the defendant, Hoffman, wanted help on his dairy farm in Jefferson county, and applied for work. He met Hoffman at an employment office in the city of St. Louis, and arranged to work for him for one dollar a day, house rent, and fuel, moving to Hoffman's farm the same day. Hoffman boarded him and his family for about a week, until their household goods arrived, and then assigned him quarters in a house some 200 feet from Hoffman's own home, and there he stayed for about three months. A written contract was made between the parties some time after Butcher went on the farm, by which it was agreed Butcher should work for Hoffman, and should receive as consideration a place in which to live and one dollar for every week day he worked.

Shortly after Butcher's engagement, Hoffman engaged another hand on the place, and asked Butcher to board him, which he agreed to do. A dispute arose about the entertainment he furnished the hand, Hoffman contending that Butcher did not provide enough to eat, and rather insisting on his getting more. During the conversation, Hoffman said he was going to order some groceries from St. Louis, and wanted to order some for Butcher at the same time. Butcher consented, and made out a list of articles, and they were sent for by Hoffman in the same order with the goods purchased for his own use. The goods got to Vineland, the railway station nearest Hoffman's farm, on a Tuesday early in April, and the evidence tends to prove Butcher was notified of that fact by the station agent, and told Hoffman about it the evening of their arrival. Hoffman paid the freight on them the next day at noon, and had them set out on the station platform with the intention of having them hauled to his residence, but forgot about it that day. In the course of the afternoon Butcher took a wagon and team, drove to the station, got the goods which had been ordered for him, hauled them to his home, and put them in the cellar. It is not altogether clear whether he took any articles which were not included in the list he had furnished Hoffman, but, so far as we can gather, he only took those which had been ordered for him. Hoffman was at Butcher's home the same night, and Butcher told him he had the goods. Hoffman asked him how many pieces there were, and Butcher said he did not know; whereupon Hoffman angrily told him he ought to know, and was a fool for not knowing, or words to that effect. Hoffman does not deny this conversation, or that he was informed by Butcher of the latter having hauled the goods from the station, but declares he understood all the time that Butcher had hauled them to his (Hoffman's) residence and put them in the cellar there; that Butcher had no right to any part of the goods except as they were turned over to him by Hoffman, who had bought them and was responsible for them. Butcher had previously bought other provisions from Hoffman, and carried a pass book in which were entered all purchases which he made, such as butter and lard, to be deducted from his wages at the end of the current month.

On the Saturday before the goods in question arrived, the parties had a settlement, and it was found the defendant owed plaintiff $13 or $14, which the latter insisted on having in order that he might pay a man named Simon, whom he owed; so defendant paid him his wages to that time. Plaintiff swore that Hoffman agreed to let the debt plaintiff owed him for the groceries run over until the next pay day, which would fall on the 4th day of the ensuing month of May.

The real question of fact in dispute between the parties is whether Butcher got the goods with the full knowledge and authority of Hoffman, to be charged to Butcher, and the price worked out by him during the coming month, or whether they were to be stored in Hoffman's cellar, and belong to him, to be doled out to Butcher as the latter needed them, and was entitled to them on his wages, each article being charged on the pass book as it was obtained. Plaintiff's testimony tends to support the former theory, and the defendant's the latter. The plaintiff's testimony further tends to prove that a sharp quarrel or dispute came up between him and the defendant a day or so after the arrival of the goods, which resulted in plaintiff loading a wagon with his property, including the goods in controversy, hauling them to Vineland station, and shipping them to Bismarck the following Saturday, to which point he and his family took the train Saturday evening. Hoffman had gone to St. Louis that morning, and was not notified by plaintiff of the latter's intention to leave, nor was any settlement had between the parties. Plaintiff affirms that Hoffman owed him for seven days' work at one dollar a day, and also owed his wife for some work she had done, while he admits owing Hoffman for the groceries. When Hoffman returned home Saturday evening, he was notified by one of the hands of Butcher's departure, and that he had taken the goods with him. The next day he consulted the prosecuting attorney of the county, and afterwards swore out a warrant before L. B. True, a justice of the peace of Bismarck, Mo., charging plaintiff with the larceny of the groceries. Hoffman said he never knew until after Butcher's departure that the goods had been stored in the latter's house, but supposed all the time they were in his (Hoffman's) cellar.

The testimony of the prosecuting attorney, Joseph G. Williams, as to Hoffman's statement...