Coleman v. Ziegler

• Decision Date: 14 April 1952
• Docket Number: No. 42475,No. 1,42475,1
• Citation: 248 S.W.2d 610
• Parties: COLEMAN v. ZIEGLER
• Court: Missouri Supreme Court

Page 610

248 S.W.2d 610

COLEMAN v. ZIEGLER.

No. 42475.

Supreme Court of Missouri, Division No. 1.

April 14, 1952.

Rehearing Denied May 12, 1952.

W. A. Brookshire, Columbia, for appellant.

Dearing & Matthes and M. C. Matthes, all of Hillsboro, for respondent.

DALTON, Judge.

This is an action for $8,000 actual and $5,000 punitive damages for malicious prosecution. Verdict and judgment were for defendant and plaintiff has appealed.

On the first trial, plaintiff obtained a judgment for $3,125 but, on appeal, the St. Louis Court of Appeals reversed the judgment and remanded the cause on account of error in the admission of evidence of alleged 'special damages' not pleaded. Coleman v. Ziegler, Mo.App., 226 S.W.2d 388.

On remand, plaintiff filed an amended petition wherein he alleged 'that on or about the first day of February, 1943, the defendant maliciously contriving and intending to injure him in his good name and reputation appeared before Frank X. Siebert, Justice of the Peace, and then and there maliciously and without probable cause did make an affidavit and lodged a charge before said Justice on February 1, 1943, that, in the said County of Ste. Genevieve, State of Missouri, this plaintiff did unlawfully and wilfully throw down and open a certain fence on the premises of the defendant and leave the said fence open and down, the said fence being the property of the defendant * * * and that the Justice issued a warrant, on which the plaintiff was arrested and brought before said Justice; that the plaintiff was on the seventeenth (17th) day of February, 1943, tried before said Justice; that the defendant testified as a witness against him, but the plaintiff was acquitted by said Justice.'

Plaintiff further alleged that he had theretofore on December 15, 1941, entered into a contract with defendant and another for cutting and removal of timber on described lands in Ste. Genevieve County; and that on February 1, 1943, he had cut some 1500 saw logs of the value of $3,000 and had them ready to be manufactured into lumber, 'but the defendant maliciously, and in violation of his contractual duties, drove the plaintiff's employees from the job and refused to permit them to proceed with their work; that said employees, because of the threats and demands of the defendant, quit the employment of the plaintiff and did not return until after the plaintiff had been tried and acquitted * * * that because of the delay occasioned by the malicious and illegal driving away of his employees from their jobs, as aforesaid, he was unable to remove the logs and to manufacture them into lumber until after his trial and acquittal, as aforesaid, and that in the meantime, the land upon which the logs and sawmill were located got into such a condition because of a thaw that he could not remove the logs nor manufacture them into lumber, and that immediately thereafter a flood came and washed all of the logs away resulting in a loss to the plaintiff in the sum of three thousand dollars ($3000.00); that this loss was the direct and proximate result of the defendant's malicious acts and malicious, illegal arrest and prosecution * * * that he (plaintiff) was humiliated and disgraced and injured in his good name, fame and reputation, and was compelled to employ an attorney to defend himself against said charge and suffered a loss in the sum of three thousand dollars, ($3000.00), due to the washing away of the logs, as aforesaid * * *.'

The answer of defendant was a general denial coupled with allegations to the effect that defendant prior to the institution of the alleged prosecution consulted a reputable attorney who advised defendant to lay all the facts before the Prosecuting Attorney; that defendant fully and fairly laid all the facts before the Prosecuting Attorney; that at the request of the Prosecuting Attorney he appeared and testified as to the facts; and that defendant acted only on probable cause and in good faith and was not guilty of maliciously prosecuting plaintiff as alleged in plaintiff's petition.

Plaintiff's original petition filed on January 31, 1948, did not contain an allegation with reference to the alleged loss of logs or claim damages for their loss. The amended petition was filed on April 14, 1950. It contained the allegation as hereinbefore set out and, as to it, defendant in his answer to the amended petition alleged that said petition by injecting the alleged loss of logs had introduced an entirely new and distinct cause of action from that pleaded in the original petition and, as to such new cause of action, defendant pleaded the five year statute of limitations as a bar to any recovery. Sec. 516.120 RSMo 1949, V.A.M.S. Defendant was subsequently granted permission to amend his answer by alleging that plaintiff's entire cause of action was barred by said five year statute of limitations.

On retrial of the cause, the evidence offered was in substantial conformity to that reviewed at length in the opinion of the St. Louis Court of Appeals, 226 S.W.2d 388, 390, 393. For the purposes of this opinion it is sufficient to refer to that opinion for the facts, except as to specific matters hereinafter referred to. Plaintiff did produce two additional witnesses to corroborate plaintiff's testimony to the effect that defendant had authorized plaintiff to cut the fence and had showed him where to cut it, before the fence was cut. Plaintiff also offered evidence in support of his claim for the loss of logs as alleged in his amended petition.

Plaintiff testified that in the prosecution he was charged with cutting the fence; that he was tried as a criminal; that the fence consisted of three rusty barbed wires, very rusty; that it was very necessary to cut the fence, since he could not get the timber out except in that way; that he did cut the fence; and that in the trial he was represented by Senator Brookshire and Mr. Ziegler was represented by the prosecuting attorney of Ste. Genevieve County and Judge Taylor Smith. Plaintiff further offered the record of the proceedings in his alleged trial and acquittal before Frank X. Siebert, Justice of the Peace at Ste. Genevieve, Missouri, and the same was received in evidence as follows:

'Parties Louis J. Ziegler Plaintiff

vs.

Arch Coleman Defendant

Nature of Proceedings

Action on Opening Fence

Record of Proceedings

Louis J. Ziegler Plaintiff filed by Louis J. Ziegler

'On the 1st day of February, 1942, issued a Writ of warrant against the defendant, returnable on the ___ day of 19----, at 10 o'clock A. M., and delivered the same to Henry J. Drury, Sheriff of _____ Township, in said County and State.

'On the 4th day of February, 1943, the said writ having been returned duly served on Defendant as follows:

"I hereby certify that I have executed the routine writ by reading same to and in hearing distance of Arch Coleman the 4th day of February, 1943 in Ste. Genevieve Township, Ste. Genevieve County, Missouri,' and this cause coming on for trial, come February 4th, 1943, comes Arch Coleman and asks to set date for trial, I here set case for February 17th, 1943. 10 A.M.

'And now February 17th, A. M. 1943 comes the plaintiff and the defendant comes to the court informed it waready to procede. After hearing the testimony on both sides for plaintiff and for the defendant the attorneys argued cause and I find from the testimony that the defendant has not violated his contract and thereby found him not guilty., and fixed judgment in favor of the defendant and have hereoff execution.

F. X. Siebert.'

Appellant contends (1) that the court erred in failing and refusing to reprimand and rebuke defendant's attorney William B. Dearing who, during the cross-examination of plaintiff, asked plaintiff this question: 'Isn't it the truth Mr. Ziegler has made claim against Brookshire for some hay that Brookshire didn't pay for?'; (2) that the court erred in sustaining the objection of William Dearing 'to the argument of Wm. A. Brookshire about paying for the hay'; (3) that reversible error was committed by the trial court in receiving evidence relative to the statute of limitations, particularly concerning the date of the filing of the original petition; (4) that the court erred in refusing to discharge the jury and declare a mistrial when defendant was withrawn as a witness because he allegedly was to ill to testify; (5) that the court erred in refusing to permit counsel for plaintiff to state to the jury 'his opinion about the failure of the defendant to continue on the witness stand' and 'to argue to the jury why the defendant allegedly suffered a heart attack while he was on the witness stand'; (6) that the court erred in permitting the testimony of the defendant at the former trial to be read to the jury; (7) that the court erred in giving defendant's instruction No. 7; and (8) that the court erred in receiving the verdict of the jury, since there was 'not sufficient legal and competent evidence in the record to support a verdict for defendant' and the verdict rendered 'was the result of sympathy and prejudice.'

We have carefully examined the record with reference to each of these assignments and the authorities cited in support thereof and find that only one of them has merit, towit, the objection to Instruction No. 7. Defendant's Instruction No. 7, in part, advised the jury that '* * * the plaintiff must therefore prove, to the satisfaction of the jury, that the defendant did prosecute the plaintiff on said charge; that the charge was false; that the defendant was instigated by malice against the plaintiff; that he made the charge without reasonable or probable cause to believe the plaintiff guilty; and unless all this be proved to the satisfaction of the jury they will find for the defendant.' (Italics ours.) Appellant says the instruction 'was erroneous in that it required the plaintiff not only to prove a lack of probable cause, but also malice and falseness of charge.'...