Coleman v. Treece

• Decision Date: 07 July 1910
• Citation: 149 Mo. App. 61,130 S.W. 56
• Parties: COLEMAN v. TREECE et al.
• Court: Missouri Court of Appeals

130 S.W. 56

149 Mo. App. 61

COLEMAN v. TREECE et al.

Springfield Court of Appeals. Missouri.

July 7, 1910.

1. APPEAL AND ERROR (§ 1002) — CONFLICTING EVIDENCE — VERDICT — CONCLUSIVENESS.

Where the evidence upon an issue is conflicting, and the question is submitted to the jury by proper instructions, their verdict is conclusive on appeal.

2. MALICIOUS PROSECUTION (§ 64) — EVIDENCE — SUFFICIENCY.

In an action for malicious prosecution, evidence held sufficient to take the case to the jury.

3. MALICIOUS PROSECUTION (§ 49) — PETITION — SUFFICIENCY — ATTACK AT TRIAL.

Where the petition in an action for malicious prosecution alleged that defendant without "reasonable or probable cause" charged the plaintiff before a justice of the peace with embezzlement, and it subsequently alleged that defendants did maliciously, and without "proper cause" aforesaid, procure a warrant for plaintiff's arrest, it was not objectionable as not stating a cause of action because of the use of the words "proper cause" instead of "probable cause," since the word "aforesaid" referred to the want of reasonable or probable cause theretofore stated, especially where the objection was not made until the opening of the trial.

4. MALICIOUS PROSECUTION (§ 58) — EVIDENCE — ADMISSIBILITY.

In an action for malicious prosecution, where plaintiff had been prosecuted for embezzlement, and at the same time a charge of unlawful detainer was also brought against him, it was not error to admit evidence relating to the unlawful detainer charge, where there was evidence that when the warrant was served, two of the defendants asked the constable for the key, and when told that he did not get it, one of them said, "You didn't, by God; that is what we did it for, to get the keys in our possession," and plaintiff claimed the remark related to the embezzlement charge and defendants claimed that it related to the unlawful detainer charge, since, in order to present defendant's theory, it would have been necessary to show that such charge had been filed.

5. MALICIOUS PROSECUTION (§ 58) — EVIDENCE — ADMISSIBILITY.

In an action against certain members of a corporation for malicious prosecution by the

manager who was arrested for embezzlement, it was error to allow plaintiff to prove the feelings of the defendants toward each other, and toward other members of the corporation, since it could only prejudice the jury against the defendants.

6. WITNESSES (§ 388) — ABSENT WITNESSES — CONTRADICTORY STATEMENTS — ADMISSIBILITY.

Under Rev. St. 1899, § 687 (Ann. St. 1906, p. 697), permitting an affidavit for continuance on account of the absence of a witness to be used in lieu of his testimony, and providing that the opposite party may prove any contradictory statements made by the witness in relation to the matter in issue, evidence of contradictory statements made by the witness are admissible, though no foundation was made to contradict him.

7. TRIAL (§ 260) — INSTRUCTIONS.

Instructions fairly covered by instructions given are properly refused.

8. MALICIOUS PROSECUTION (§ 72) — MISLEADING INSTRUCTIONS.

In an action for malicious prosecution, where plaintiff, the manager of a corporation, after being discharged, took the amount of his salary to the end of the year and was arrested for embezzlement, an instruction that if the jury believed that the alleged acts of defendants were done wantonly, maliciously, and against the plaintiff's rights as the manager of the firm, then they could award punitive or exemplary damages, was misleading, and should not have contained the reference against plaintiff's rights as the manager of the firm, etc., since the board of directors had the right to discharge him, his contract being executory, and, if he was wrongfully discharged, he could collect his salary in an action for damages.

Appeal from Circuit Court, Pemiscot County; Henry C. Riley, Judge.

Action by Lee A. Coleman against Charles M. Treece and others. Judgment for plaintiff, and defendants appeal. Reversed and remanded.

Ward & Collins, for appellants. McKay & Corbett and Faris & Oliver, for respondent.

GRAY, J.

This proceeding was commenced by the respondent against appellants in the circuit court of Pemiscot county, on the 2d day of October, 1908, upon a petition charging the defendants with malicious prosecution. The petition states that on the 7th day of October, 1907, the defendant, Charles M. Treece, at the suggestion and request of the other defendants, and without reasonable or probable cause, charged the plaintiff before a justice of the peace with the crime of embezzlement; "that defendants did maliciously and without proper cause aforesaid procure said justice to issue a warrant for the arrest of plaintiff upon said charge;" that a warrant was issued, plaintiff was arrested, and upon preliminary examination before the justice, was discharged; and that on account of the malicious acts of the defendants, plaintiff has been damaged in the sum of $10,000, and asking for that sum as actual damages, and $10,000 for punitive damages. The answer was a general denial, and a further plea that whatever was done in the premises by the defendants was done in good faith, and, further, upon the advice of competent counsel, after a full, fair, and honest investigation of all the facts and a narration of said facts to counsel. There was a trial by jury, resulting in a verdict in favor of plaintiff for $500 actual damages, and $4,500 punitive damages, signed by 10 of the jurors. The defendants appealed.

During the years of 1906 and 1907, appellants and respondent were stockholders in a corporation known as the Farmers' Mercantile Company. This company operated a store and bought, ginned, and sold cotton at the town of Steele. During the year 1906 the respondent was the general manager of the company, and during that year the company made and declared a dividend of 25 per cent. At the close of that year, the respondent was elected manager, and while there is some conflict relating to the period of his employment, the by-laws of the company provide that the manager shall hold his position for the term of one year. During the year 1907 the defendants, who were directors of the corporation, and the other directors and stockholders of the company, became dissatisfied with the plaintiff's management. Instead of making money, the corporation had lost money, and was several thousand dollars in debt. The respondent when called upon was unable to give the board of directors any reason for the financial condition of the company. It was decided by the board of directors to call for the resignation of the plaintiff and a request therefor was made. The plaintiff refused to resign, whereupon the board proceeded to hold a meeting, and a motion was made and carried discharging the plaintiff. This was about the 1st of October, 1907. The plaintiff knew of the contemplated action of the board, and took $225 of the money of the corporation. No one knew of this except a clerk in the office, and he was instructed by plaintiff to say nothing about it, and told if the board discharged plaintiff, he would keep the money for his salary for the balance of the year. He was getting $75 per month, and this $225 would equal his salary for October, November, and December. No entry was made on the books of the company that any money had been taken, but a receipt was left in the safe. After the company made the order discharging the plaintiff he was notified of it, but refused to surrender the key to the store, or permit Mr. Chambers, who was selected by the board as his successor, to take charge of the business, but finally did consent to a man by the name of Franklin acting as manager. The board, when considering the affairs of the company and the discharging of plaintiff, attempted to hold meetings at the usual meeting place, but plaintiff insisted on being present, notwithstanding he knew the board desired to transact the business in his absence.

While things were in this condition, and upon learning that plaintiff had taken the $225, the defendants sent for an...