Dawes v. Starrett

• Decision Date: 17 April 1935
• Docket Number: No. 31555.,31555.
• Citation: 82 S.W.2d 43
• Parties: DAWES v. STARRETT et al.
• Court: Missouri Supreme Court

82 S.W.2d 43

DAWES v. STARRETT et al.

No. 31555.

Supreme Court of Missouri, Division No. 1.

April 17, 1935.

Appeal from Circuit Court, Randolph County; A. W. Walker, Judge.

Action by Cecil C. Dawes against John W. Starrett and others. Judgment for plaintiff, and defendants appeal.

Reversed, and cause remanded.

C. M. Hulen and J. A. Walden, both of Moberly, and Henry I. Eager, of Kansas City (Aubrey Hammett, of Moberly, and Meservey, Michaels, Blackmar, Newkirk & Eager, of Kansas City, of counsel), for appellants.

Harvey & Bellamy and Robert D. Johnson, all of Marshall (Major J. Lilly and Hunter & Chamier, all of Moberly, of counsel), for respondent.

FERGUSON, Commissioner.

This is a malicious prosecution action. Plaintiff herein, Cecil C. Dawes, a former agent at Slater, Mo., of the defendant Prudential Insurance Company of America, was charged, by an indictment returned by the grand jury of Saline county, with the crime of embezzlement of money of said insurance company. The case was tried in the circuit court of Saline county, at Marshall, and Dawes was acquitted. He thereupon brought this action for damages for malicious prosecution against John W. Starrett, a district superintendent for the Prudential Company, Claude Old, an assistant superintendent, and the insurance company. The petition herein alleges that Starrett and Old "were agents and officers of said defendant insurance company"; that "the defendants by themselves, their agents, servants and employees, acting within the scope of their employment * * * without reasonable and probable cause therefor, voluntarily appeared before the grand jury of Saline County * * * and did then and there maliciously, falsely and fraudulently make complaint of and falsely charge plaintiff with having * * * embezzled and converted to his, plaintiff's use, the sum of $302.49 * * * money and property of said Prudential Insurance Company; * * * that said defendants, their agents, servants and employees, acting as aforesaid fraudulently, maliciously and without probable or reasonable cause, instigated, instituted, presented, pressed and continued said charge against plaintiff before said grand jury and falsely, maliciously, wantonly and without probable or reasonable cause testified before said grand jury that plaintiff did * * * embezzle and convert to his use said sum of $302.49; that upon their false and perjured testimony aforesaid said grand jury found and returned a true bill of indictment against plaintiff * * * charging plaintiff with having * * * embezzled and converted to his own use said sum of $302.49; that upon the trial of said indictment the defendants by themselves, their agents, servants and employees took an active part therein, employed counsel to assist in the prosecution and then and there falsely and maliciously testified that the plaintiff did * * * embezzle and convert to his own use said sum of money; that the defendants at the time of giving said false and perjured testimony against plaintiff, and at all times herein mentioned, knew that plaintiff was not guilty but was innocent of said charge; that plaintiff * * * was acquitted of said charge; that said indictment * * * was instigated and procured without reasonable cause by the fraudulent, false and perjured evidence of the defendants, their agents, servants and employees and in all of said matters said defendants, their agents, servants and employees * * * failed to disclose to said grand jury the true facts known to them bearing upon the question of the guilt or innocence of the plaintiff, of said charge; that if said defendants, their agents, servants and employees, had truthfully and fairly disclosed said facts to said grand jury it would not have returned said indictment against this plaintiff." The petition continues with allegations that, "in each and every act done in the prosecution of plaintiff the defendants, their agents, servants and employees acted with malice," etc. The defendants' separate answers, in substance the same state that "plaintiff was arrested and prosecuted * * * upon an indictment duly and regularly voted and returned" by the grand jury; "that the facts, matters and things upon which the indictment was returned and based were first submitted to competent counsel who advised that same constituted sufficient ground and probable cause to believe the plaintiff guilty of a crime and that same should be submitted to the prosecuting attorney"; thereupon such facts were submitted to the prosecuting attorney who "upon his own judgment and responsibility submitted same to the said grand jury for its action" and that there was "probable and reasonable cause to believe and * * * to suspect that plaintiff had committed a criminal offense." The action was filed in the circuit court of Pettis county, but went on a change of venue to, and was tried in, the circuit court of Randolph county. The verdict of the jury was for plaintiff and against all the defendants, assessing compensatory damages in the sum of $30,000 and punitive damages in the sum of $10,000. Defendants filed separate motions for new trial, and upon the hearing thereof plaintiff, as a condition prescribed by the court to the overruling of the motions for a new trial, entered a remittitur for $20,000 of the compensatory damages and $5,000 of the punitive damages, awarded by the verdict of the jury, and thereupon the motions for a new trial were overruled and judgment for plaintiff for compensatory damages in the sum of $10,000 and punitive damages in the sum of $5,000, an aggregate of $15,000, was entered. Defendants separately appealed from the judgment.

Plaintiff's petition alleges, and his proof shows, the finding and return of the indictment by the grand jury charging that while an agent of the defendant insurance company he embezzled and converted to his own use the sum of $302.49 of the money of the company. The prevailing rule is that the finding and return of the indictment by the grand jury is prima facie evidence of and establishes probable cause unless the plaintiff in the action for malicious prosecution rebut the presumption by proof that the defendant in the action for malicious prosecution obtained or induced the indictment by false testimony before the grand jury, or by intentionally withholding or concealing from the grand jury pertinent facts necessary to a full and fair investigation which were known to defendant or which he could by due diligence have ascertained, or by other improper or fraudulent means, or by showing that defendant, though he did not believe the accused to be guilty, obtained or procured the indictment against him. Wilkinson v. McGee, 265 Mo. 574, 178 S. W. 471; Peck v. Chouteau, 91 Mo. 138, 3 S. W. 577, 60 Am. Rep. 236; Sharpe v. Johnston, 76 Mo. 660; Steppuhn v. Chicago Great Western R. Co., 199 Mo. App. 571, 204 S. W. 579; Firer v. Lowery, 59 Mo. App. 92; Foster v. Chicago, B. & Q. R. Co. (Mo. Sup.) 14 S.W. (2d) 561; 38 C. J. p. 412; 18 R. C. L. p. 44. Plaintiff, recognizing that the burden is upon him to overcome the prima facie presumption of probable cause arising out of the indictment, alleged in his petition, and undertook by proof to show, that defendants themselves and by and through agents and employees obtained and procured the indictment by false and perjured testimony before the grand jury, that they concealed and failed to disclose to the grand jury the true facts, and that at the time they knew plaintiff was not guilty of the charge made against him but defendants as appellants here contend that the record affords no substantial evidence in support of these allegations of the petition, or either of them, and that therefore the trial court erred in overruling defendants' separate demurrers to the evidence. This assignment requires a summary of the facts and circumstances shown by the evidence. It is with misgiving that the writer undertakes such statement. The record is voluminous; approximately 100 exhibits are in evidence composed of record books, accounts, and reports; the testimony of a large number of witnesses was heard. In view of the mass of evidence in this record and the complex nature of much of it, we appreciate the force of the observation which appellants make in concluding their brief herein that "we realize the difficulty — almost the futility — of trying to explain the complicated facts and contentions of this case to persons who have not specialized more or less, along such lines," referring to life insurance business of the kind carried on at Slater by the Prudential Company through plaintiff as its agent, and yet in reading the record, and the briefs herein, we are impressed with the disagreement and differences arising among witnesses, who were supposedly informed and experienced in this phase of the life insurance business, concerning the various records, accounts, and reports, and the construction and interpretation thereof, methods of bookkeeping, and the practices and rules recognized and followed in conducting the business.

The defendant Prudential Insurance Company of America does a general life insurance business. In 1925, plaintiff, a married man, resided with his family at Slater in Saline county, where he was employed in the shops of the Chicago & Alton Railroad. During that year he accepted a position as local agent at Slater for the Prudential quitting his employment at the railroad shops. He continued as agent at Slater for the Prudential until the week of July 2, 1928, when he quit that employment and went to Columbia, Mo. Slater is in the company's Sedalia, Mo., district, and during the time involved defendant J. W. Starrett was superintendent of that district and in charge of the district office at Sedalia. The district was divided into "assistancies" each in the charge of an assistant superintendent. Slater is in the "Lexington assistancy," comprising Lafayette, Ray, and Saline counties, under the immediate...