Carp v. Queen Ins. Co.

• Decision Date: 19 March 1907
• Citation: 101 S.W. 78,203 Mo. 295
• Parties: CARP v. QUEEN INS. CO. et al.
• Court: Missouri Supreme Court

101 S.W. 78

203 Mo. 295

CARP v. QUEEN INS. CO. et al.

Supreme Court of Missouri, Division No. 2.

March 19, 1907.

1. APPEAL—HARMLESS ERROR—EVIDENCE.

Where, in malicious prosecution for the prosecution of plaintiff for arson, instituted by insurers of the property destroyed by the fire, it was shown that a board of underwriters had offered a reward for the conviction of the person who set the fire, the allowance of a witness, for the purpose of connecting the insurers with the board of underwriters to testify relative to the existence and objects of the board, though incompetent, was not prejudicial to the insurers.

2. EVIDENCE—RECORDS OF COURTS—ADMISSIBILITY —STATUTES.

Rev. St. 1889, § 3135, providing that copies of the records of any court of record, attested by the clerk thereof with the seal of the court annexed, shall be received as evidence, does not exclude from evidence original records of a court of record properly identified by a witness.

3. APPEAL — HARMLESS ERROR — ERRONEOUS ADMISSION OF EVIDENCE CURED BY OTHER EVIDENCE.

The error in admitting in evidence the records of a court of record because not properly authenticated is cured by subsequent testimony of a witness identifying the records.

4. MALICIOUS PROSECUTION — EVIDENCE — ADMISSIBILITY.

Where, in malicious prosecution for the prosecution of plaintiff for arson, instituted by insurers of the property destroyed by the fire, it appeared that a board of underwriters had offered a reward for the conviction of the person who set the fire, and that a third person had sent to a witness printed notices of the reward and money for posting the same, the testimony of the witness that the third person was a special agent for one of the insurers, because the

third person had said so, was inadmissible to prove the connection between the board and any of the insurers.

5. PRINCIPAL AND AGENT—PROOF OF AGENCY —EVIDENCE—SUFFICIENCY.

Proof that one acted as adjuster of an insurer in adjusting a fire loss is not evidence that he was, prior to his employment, an agent of the insurer.

6. MALICIOUS PROSECUTION—EVIDENCE—ADMISSIBILITY.

In malicious prosecution for the prosecution of plaintiff for arson, instituted by insurers of the property destroyed by the fire, evidence of the posting of a reward for the conviction of the person setting the fire, offered by a board of underwriters, was inadmissible, in the absence of evidence that the board was connected with the insurers.

7. SAME.

In malicious prosecution for the prosecution of plaintiff for arson, instituted by insurers of the property destroyed by the fire, evidence examined, and held not to show a connection between any of the insurers and a board of underwriters, which offered a reward for the conviction of the person guilty of setting the fire, rendering evidence of the giving of the reward inadmissible.

8. SAME — PETITION — EVIDENCE — ADMISSIBILITY.

Where the petition, in malicious prosecution for the prosecution of plaintiff for arson, instituted by insurers of the property destroyed by the fire, alleged that plaintiff had lost time and incurred and expended money in defense of the criminal prosecution, proof of plaintiff's loss of time in defending against the criminal charge, of his earnings prior thereto, and of the expenses incurred in defending himself, was admissible.

9. APPEAL—REVIEW—RULINGS ON EVIDENCE.

An objection to the admission of evidence, not raised in the trial court, is not reviewable on appeal.

10. EVIDENCE—JUDICIAL RECORDS—ADMISSIBILITY —AUTHENTICATION.

To make original papers in a suit competent as primary evidence in another action, it is essential that they be identified by a witness who can testify of his own knowledge that they are the original papers.

11. MALICIOUS PROSECUTION—EVIDENCE—ADMISSIBILITY.

In malicious prosecution for the prosecution of plaintiff for arson, instituted by insurers of the property destroyed by the fire, the petitions, answers, and replies, in actions on policies insuring the property, were admissible to show the interest which the insurers had in commencing or assisting in the continuance of the criminal prosecution; but the verdicts and judgments in such actions were incompetent.

12. SAME.

Where, in malicious prosecution for the prosecution of plaintiff for arson, instituted by insurers of the property destroyed by the fire, the evidence showed that before the institution of the prosecution witnesses had informed the prosecuting attorney that plaintiff was present at the building immediately before the ringing of the fire bell, and was seen standing in the shadow of the building near by after the alarm had been given, evidence that the next-door neighbor of plaintiff would have testified that she saw plaintiff going through his front gate to the fire after the fire bell rang was inadmissible to show want of diligence of the insurers in procuring evidence on the question of the guilt of plaintiff.

13. EVIDENCE — EVIDENCE OF TESTIMONY OF WITNESS ON FORMER TRIAL—ADMISSIBILITY.

It is competent for one present at a trial and who heard the evidence of a witness to state at a subsequent trial his recollection of what the witness testified to.

14. APPEAL — ADMISSION OF TESTIMONY — HARMLESS ERROR.

Where, on objection, the court ruled that a person could testify to anything that he remembered a witness at a former trial testified to, and he only answered a few questions, when the party called the witness at the former trial, who testified fully, the error, if any, in permitting the person to testify, was not reversible.

15. MALICIOUS PROSECUTION—EVIDENCE—ADMISSIBILITY.

Where, in malicious prosecution for the prosecution of plaintiff for arson, instituted by insurers of the property destroyed by the fire, the evidence showed that a third person, who filed with the prosecuting attorney an affidavit charging plaintiff with the crime, reported the evidence which he had gathered to an attorney for the insurers and to the prosecuting attorney, and that they, in instituting the prosecution, relied on the testimony so furnished, the insurers were estopped from denying that the third person was their agent in looking up the testimony, rendering proof of his attempt to obtain information for the prosecution competent.

16. SAME.

In malicious prosecution for the prosecution of plaintiff for arson, instituted by the insurers of the property destroyed by the fire, evidence of the capitalization of the insurers was competent to show their wealth.

17. SAME.

In malicious prosecution for the prosecution of plaintiff for arson, instituted by insurers of the property destroyed by the fire, the testimony of a clerk in the store destroyed by the fire, who had had 15 years' experience in clerking, that in her judgment the stock was worth about $12,000, while the insurance was only $6,000, was competent on the issue of diligence of the insurers in procuring evidence of the guilt of plaintiff before instituting the prosecution.

18. SAME.

Where, in malicious prosecution for the prosecution of plaintiff for arson, instituted by the insurers of the property destroyed by the fire, the insurers tendered the issue of the guilt of plaintiff, and not the mere question of probable cause, it was competent for plaintiff, in rebuttal, to disprove the evidence offered by the insurers to show guilt, by showing that the witnesses for the insurers were either mistaken or had given false testimony, and he could show that he was at his home and did not start to the fire until after the fire alarm had been sounded.

19. WITNESSES — IMPEACHMENT — PROOF OF CONTRADICTORY STATEMENTS.

A party who has not offered a person as a witness, and thereby vouched for his credibility, may show by the deposition of such person, given on a previous trial, that he made statements contrary to his testimony.

20. MALICIOUS PROSECUTION — EVIDENCE — PROOF OF GOOD REPUTATION.

In malicious prosecution, it is competent for plaintiff to prove his good reputation prior to the institution of the criminal charge.

21. SAME—PROOF OF BAD REPUTATION—ADMISSIBILITY.

On a trial for malicious prosecution for the prosecution of plaintiff for arson by setting fire to property insured to defraud the insurers, the prosecuting attorney testified that he could not say that he had, at the time of the institution of the prosecution, information that plaintiff had burned out at another place under another name, and that he derived information from a third person, who told him that he had written insurance for plaintiff which companies refused. Held, that the evidence was properly stricken out as hearsay and incompetent to prove plaintiff's bad reputation.

22. WITNESSES—IMPEACHMENT—BAD REPUTATION.

A witness who testified that he was acquainted with a person and with his reputation for veracity, and that the same was not of the best, and based his statement on his business dealings with such person, was incompetent to testify to his reputation for veracity.

23. MALICIOUS PROSECUTION — EVIDENCE — SUFFICIENCY.

On a trial for malicious prosecution for the prosecution of plaintiff for arson, evidence examined, and held to justify a finding that defendants instituted the prosecution, rendering them liable.

24. SAME.

In an action for malicious prosecution of plaintiff for arson, at the instigation of insurers of the property destroyed by the fire, the question whether a third person, acting for the insurers in instituting the prosecution, disclosed all the facts to the attorney of the insurers and the prosecuting attorney, held, under the facts, for the jury, thereby depriving the insurers, as a matter of law, of the defense of reliance on advice of counsel.

25. SAME—PROBABLE CAUSE—QUESTION FOR JURY.

In an action for malicious prosecution for the prosecution of plaintiff for arson, instituted by insurers of the property destroyed by the fire, evidence examined, and held, that the question whether the insurers...