Dodson v. MFA Ins. Co.

• Decision Date: 13 May 1974
• Docket Number: No. 1,No. 57286,57286,1
• Citation: 509 S.W.2d 461
• Parties: John DODSON, Respondent, v. MFA INSURANCE COMPANY and Countryside Casualty Company, Appellants
• Court: Missouri Supreme Court

Page 461

509 S.W.2d 461

John DODSON, Respondent, v. MFA INSURANCE COMPANY and Countryside Casualty Company, Appellants.

No. 57286.

Supreme Court of Missouri, Division No. 1.

May 13, 1974.

Motion for Rehearing or to Transfer to Court en Banc Denied

June 10, 1974.

Lantz Welch, Kansas City, Martha Sperry Hickman, Independence, for respondent.

Thomas A. Sweeny, Kansas City, for appellants; Popham, Popham, Conway, Sweeny & Fremont, Kansas City, of counsel.

WELBORN, Commissioner.

Action for malicious prosecution. Jury awarded plaintiff $15,000 actual damages and $200,000 punitive damages. Defendants' motion for new trial was overruled; judgment entered on verdict; defendants appealed.

In March, 1962, plaintiff John Dodson resided at Brookfield, Missouri. He was then some 36 years of age, a veteran of World War II who had lost a leg in that was, and had had less than one year of high school education. In November, 1961, Dodson purchased a 1961 GMC truck from Gilbert Motor & Oil Co. of Brunswick. The price of the truck was $4,342. Dodson paid $525 cash and traded in a pickup truck for which he was allowed credit of $1,117. He financed the balance of the purchase price through Yellow Manufacturing Acceptance Corporation (YMAC), by means of a chattel mortgage on the truck to secure an indebtedness of $3,279.90, which was to be paid at the rate of $109.33 per month, beginning January 4, 1962. Dodson obtained comprehensive insurance coverage of the truck through an MFA Insurance Company agent in Marceline. The policy was written by the Countryside Casualty Company, a subsidiary of MFA.

Dodson used the truck in a general hauling operation, principally of farm products. On March 21, 1962, a YMAC representative told Dodson that he had made only one payment and that he was delinquent in two payments. Dodson told the YMAC man that he had made a second payment for which he had not received credit.

At around 5:00 A.M., March 22, 1962, the Brookfield volunteer fire department responded to a call that a truck was burning on what was known as Cemetery Road, a gravel road outside the city limits of Brookfield. A member of the fire department notified Sergeant Conyers of the State Highway Patrol of the fire. Cemetery Road was in poor condition and the fire truck was unable to get through a mudhole some distance from where the truck was burning. Firemen took dry chemicals to the scene of the blaze and extinguished the fire. The truck was Dodson's and Dodson was present.

Sergeant Conyers arrived at the scene at about the time the fire was extinguished. He asked Dodson about the fire and Dodson told him that he was driving west and the truck backfired a couple of times. 'I smelled something and got out and lifted the hood and there was fire around the carburetor. It started spreading into the cab so I left and tried to get help.' That was the statement which the trooper put in his accident report and 'Report of Burned Vehicle' which he prepared after he had been at the scene and had taken Dodson to the Brookfield police station where the reports were prepared.

A little after 8:00 A.M. a tow truck was dispatched to remove the burned truck. Sergeant Conyers also returned to the scene of the fire. The tow truck operator found a cork gasket at the rear of the truck. The gasket had the odor of fresh gasoline and was turned over to Conyers. Conyers and a Brookfield policeman made a further search of the area. In a field some 90 feet to the rear of the truck and 75 feet from the road, Conyers, found a five-gallon gasoline can that contained a little more than a gallon of gasoline. The filler cap of the can was removed. It had no gasket. The gasket found behind the truck fit the filler cap. The morning was frosty and neither the gasket nor the can had frost on it.

The discovery of the gasket and can, coupled with the fact that the fire had been concentrated in the cab of the truck, led Conyers to suspect that the fire had been set.

Conyers had learned from Dodson that the truck was insured by MFA. Conyers knew Harry Hansen who was employed by MFA as a special investigator to investigate fire losses when there was evidence of the questionable origin of a fire. Hansen was a former member of the highway patrol and had been Conyers' troop commander for about three years when Conyers joined the patrol in 1942. Conyers got in touch with Hansen and Hansen came to Brookfield around noon on March 22. Conyers drove Hansen to the scene of the fire and then took Hansen to the place where the burned truck had been towed. Hansen examined the vehicle and took photographs of it.

Hansen and Conyers then went to Dodson's residence. Dodson refused to talk in the presence of Conyers. Conyers and Hansen went back into town and Hansen returned alone. Although Dodson had said he would talk to Hansen if he was alone, Dodson was not at home when Hansen returned. Hansen returned to the house several times during the evening, but Dodson was not there.

At around 8:00 A.M. on March 23, Brookfield police picked up Dodson and took him to the police station. Hansen was at the station and he assisted Dodson in the preparation of a sworn statement in proof of loss, in which Dodson set forth his claim for loss under his insurance policy of $2,500.

On either March 22 or 23, Conyers and Hansen talked with Robert Devoy, the prosecuting attorney of Linn County, and laid before him the information which they had gathered. Devoy filed a complaint in the Linn County Magistrate Court, charging Dodson with arson of insured property. § 560.030, RSMo 1969, V.A.M.S. Dodson was arrested on the afternoon of March 26 on a warrant issued on the complaint. Devoy and Conyers saw Dodson after his arrest and, after advising Dodson of his rights, asked him if he wanted to make a statement. Dodson said that he had nothing to say except that he was innocent. Dodson was jailed and later released on bond. After preliminary hearing, Dodson was bound over to the circuit court. Hansen testified at the preliminary hearing. An information was filed and the case was tried before a jury on January 16 and 17, 1963. The jury returned a verdict of not guilty. The cause of action for malicious prosecution was filed February 17, 1965.

Dodson testified to the purchase of the truck about four months before the incident in question. He had trouble with the truck backfiring. The truck was worked on but it continued to backfire.

Dodson testified that, on the evening of March 21, 1962, he went to the Do Drop Inn and Wilma's Tavern where he stayed till midnight. Then he went to the Duck Inn where he ate dinner and visited over coffee till two or three A.M. When he left he headed east on Highway 36 and encountered a motorist out of gas. Although the motorist said that he had already sent for help, Dodson volunteered to drive back to the Duck Inn Service Station for gas. There was no other station within 15 or 20 miles that was open. Dodson asked for a gallon of gasoline, and gave the attendant a dollar. The attendant ran 'a gallon or so' in a five-gallon MFA can and since there was a deposit on the can, he kept the dollar. Dodson put the can on the righthand seat of the truck, drove back to where he had left the motorist and he was gone.

Dodson, having no job for the next day and being separated from his wife, decided to drive around. He drove past his room and then westbound on Cemetery Road. He experienced 'quite a bit of trouble' getting through the first mudhole encountered, both the wheels spinning and the motor backfiring.

Dodson went a 'ways farther' and encountered another mudhole. The truck was still backfiring and the wheels spinning. He pulled it through but the 'truck seemed like it was getting hot and I smelled something.' He stopped, got out, raised the hood and 'it was on fire around the motor someplace.' He went around to the right side of the cab, 'took the can of gasoline out and started up the road to get away from it' and 'threw it over into a field.' Dodson then headed back up the road and attempted to summon help at one house with no success and continued on to the second house, that of 'Peg' McCollum. He knocked on the door but McCollum didn't respond right away. Dodson knocked again and yelled, 'Good God, man get up--my truck's on fire.' McCollum responded this time and Dodson came in, called the fire department, then 'set down on the porch and held his head down in his hands.'

Harold 'Peg' McCollum, who lived within fifty feet of the first mudhole, was awakened by a terrific noise like a motor backfiring, raised up out of bed and saw a truck that was smoking with its 'underneath part--all lit up like it could have been on fire.' The mudhole had been caused by the melting of a bid snowdrift and a number of vehicles had been 'stuck in this low place.' McCollum testified to Dodson's coming to his house and calling the fire department.

Audra Borron, an employee of the Duck Inn Service Station, testified that he sold thirty cents' worth of gasoline to Dodson in the early morning of March 22.

Sergeant Conyers testified for the defendants that, when he first went to the scene of the fire and spoke with Dodson, he did not suspect arson. His original accident report made no reference to Dodson's' statement that he had been accompanied by a woman, but the resport did note the finding of the gas can and suspicion of arson. When Conyers returned to the scene, his suspicion was aroused by the finding of the gas can, the loose gasket, the fact that the right door of the truck was open and the left door closed. He wrote an investigation report in which he noted those factors, as well as the MFA insurance and Dodson's being delinquent in his payments on the note. This report was dated March 24. Conyers acknowledged that, although he suspected a crime had been committed, he did not ask patrol experts to study for evidence but instead got in touch with Hansen.

Mr. Robert Devoy, Linn...