O'Donnell v. Chase Hotel, Inc.

• Citation: 388 S.W.2d 489
• Decision Date: 16 February 1965
• Docket Number: No. 31814,31814
• Parties: Mildred S. O'DONNELL, Plaintiff-Appellant, v. CHASE HOTEL, INC., a Corporation, Defendant-Respondent.
• Court: Court of Appeal of Missouri (US)

Page 489

388 S.W.2d 489

Mildred S. O'DONNELL, Plaintiff-Appellant, v. CHASE HOTEL, INC., a Corporation, Defendant-Respondent.

No. 31814.

St. Louis Court of Appeals, Missouri.

Feb. 16, 1965.

Motion for Rehearing or to Transfer to Supreme Court Denied

March 18, 1965.

Charles M. Shaw, Claude Hanks, Leonard L. Bornschein, Clayton, for plaintiff-appellant.

Morris A. Shenker, Frank B. Green, Jr., St. Louis, for defendant-respondent.

DOERNER, Commissioner.

By this action plaintiff sought to recover actual and punitive damages of $50,000 for the alleged malicious prosecution by defendant of a charge of peace disturbance. A verdict for plaintiff for $1500 was returned, upon which judgment was entered. Thereafter the court set aside the judgment and entered judgment for defendant in accordance with its motion for a directed verdict at the close of all the evidence, and, alternatively, overruled defendant's motion for a new trial. Plaintiff brings this appeal.

On March 5, 1960 plaintiff, together with her husband, James Thomas O'Donnell, her son, Frank O'Donnell, and a Miss Rita Taylor, attended a private party held in the hotel operated by the defendant in the City of St. Louis. Upon their arrival about 9:00 P.M. they turned their automobile over to one of defendant's attendants to be parked. When they sought to leave around 12:30 P.M., they requested their car from the same attendant. After a search and some delay he informed them that he was unable to locate their car, and after a further period had elapsed, denied that he had parked it for them. An argument ensued, primarily between Frank O'Donnell, on the one hand, and John Nelson, defendant's desk clerk, and Harry Price, its security officer, on the other, which developed into a scuffle between Frank O'Donnell and Price. Plaintiff testified that in attempting to pull Frank away she was knocked to the floor in the melee. She stated that when she looked up she saw Price, who was also on the floor; that he had his gun in his hand and was pointing it at her, and was directing foul language at her. At the suggestion of the Metropolitan Police who arrived on the scene all of the members of plaintiff's party as well as Price, went to the district police station. Interrogated by her counsel, plaintiff testified:

'Q. What did the (Police) Captain say?

'A. Well, the Captain asked me if I wanted to charge Mr. Price, and I said yes, for pulling a gun; and then he asked Mr. Price if he wanted to cross-charge me or put a charge against me.

'Q. Now what did Mr. Price say?

'A. He said yes.'

Plaintiff related that she was charged with disturbance of the peace and stood trial in the Municipal Court of St. Louis. She was found guilty, fined $300, and appealed to the Court of Criminal Correction. After a trial in that court, she was acquitted. This suit followed.

Error is assigned on the action of the court in setting aside the judgment for plaintiff and entering a judgment for defendant in accordance with defendant's motion for a directed verdict presented at the close of all of the evidence. As grounds therefor the trial court stated that the plaintiff's conviction in the Police Court was prima facie evidence of probable cause for the instigation of the prosecution and that the burden was on plaintiff to show that such conviction had been obtained by fraud or perjured testimony; and that plaintiff failed to show that the conviction had been obtained by such means. Much of plaintiff's brief is devoted to an attack upon the view expressed in the court's order, but as was said under similar circumstances in Gruetzemacher v. Billings, Mo., 348 S.W.2d 952, 955:

'* * * we are not particularly concerned with the reasons assigned by the court for its order setting the verdict and judgment aside and entering judgment for defendants, because, if the judgment entered was for the proper parties, it will not be set aside on appeal even if the court gave a wrong or insufficient reason for entering it. Spiking School Dist. No. 71, DeKalb County v. Purported 'Enlarged School Dist. R-11, DeKalb County, Mo.', 362 Mo. 848, 245 S.W.2d 13, 17; Huttig v. Brennan, 328 Mo. 471, 41 S.W.2d 1054, 1062.'

And see in accord City of St. Louis v. Evans, Mo., 337 S.W.2d 948, 954; Producers Produce Co. v. Industrial Commission of Missouri, 365 Mo. 996, 291 S.W.2d 166, 170.

The constitutive elements of an action for malicious prosecution are: (1) the commencement or prosecution of the original proceedings against the present plaintiff; (2) its legal causation by the present defendant; (3) its termination in favor of the present plaintiff; (4) the absence of probable cause for such proceedings; (5) the presence of malice therein; and (6) damage to plaintiff by reason thereof. Huffstutler v. Coates, Mo., 335 S.W.2d 70; Hughes v. Aetna Insurance Co., Mo., 261 S.W.2d 942; Coleman v. Ziegler, Mo., 248 S.W.2d 610. Regarding the fourth element, absence of probable cause, it is the general rule in Missouri that evidence that plaintiff was convicted in the original proceedings creates a presumption that there was probable cause for its instigation; and that plaintiff to prevail must overcome such presumption by proof that the conviction was obtained by false or fraudulent testimony, or other improper means, or that the defendant himself did not believe the facts alleged in support of the prosecution. This general rule applies even though the plaintiff shows that the conviction was subsequently reversed or set aside on appeal. Boogher v. Hough, 99 Mo. 183, 12 S.W. 524; Wilkerson v. McGhee, 265 Mo. 574, 178 S.W. 471; Wilcox v. Gilmore, 320 Mo. 980, 8 S.W.2d 961; Bonzo v. Kroger Grocery & Baking Co., 344 Mo. 127, 125 S.W.2d 75; Hughes v. Aetna Insurance Co., supra; La Chance v. National Pigments & Chemical Co., Mo.App., 104 S.W.2d 693. With the necessary changes in points of detail, the same principles determine the issue of probable cause when the original proceeding was a civil suit and a judgment was rendered against the present plaintiff at the first stage of the original proceeding. Wilcox v. Gilmore, supra; Laughlin v. St. Louis Union Trust Co., 330 Mo. 523, 50 S.W.2d 92; Ripley v. Bank of Skidmore, 355 Mo. 897, 198 S.W.2d 861; McMahon v. May Dept. Stores Co., Mo., 374 S.W.2d 82. In this respect our rules are in accord with the great weight of authority. Wilcox v. Gilmore, supra; Restatement, Torts, Sec. 667, p. 421 and Sec. 675, Comment b., p. 447; 54 C.J.S. Malicious Prosecution Secs. 24b and 37; 34 Amer.Jur., Malicious Prosecution, Secs. 55 and 57.

The general rule has been extended to include not only convictions as prima facie evidence of the existence of probable cause, but also an indictment voted by a grand jury and a commitment by an examining magistrate. Wilkerson v. McGhee, supra; Higgins v. Knickmeyer-Fleer Rlty. & Invest. Co., 335 Mo. 1010, 74 S.W.2d 805; Huffstutler v. Coates, Mo., 335 S.W.2d 70. However, it appears that a conviction in a police court which is reversed on appeal, at least after a trial de novo, is not prima facie evidence of probable cause in a subsequent action for malicious prosecution. This exception to the general rule had its genesis in Hanser v. Bieber, 271 Mo. 326, 197 S.W. 68, and appears to have ripened to fruition in Randol v. Kline's Inc., 322 Mo. 746, 18 S.W.2d 500, which reached the court on a second appeal, 330 Mo. 343, 49 S.W.2d 112. In Hanser v. Bieber, supra, it was shown that the plaintiff had been arrested on complaint of defendants and charged with disturbance of the peace. He was tried, convicted and fined in the Police Court of the City of St. Louis and appealed to the Court of Criminal Correction, where he was found not guilty and discharged. Plaintiff thereafter sued the defendants, alleging false imprisonment in one count of his petition and malicious prosecution in the other. Cast on demurrer at the close of his evidence, plaintiff took a nonsuit and appealed when the trial court refused to set it aside. In what may be regarded as the controlling opinion, written by Judge Walker, it was conceded that according to the weight of authority elsewhere a judgment of conviction in a criminal case was conclusive evidence of probable cause in an action for malicious prosecution, although the conviction was reversed on appeal. But Judge Walker, after noting the distinguishing characteristics between a criminal prosecution and a proceeding for the violation of a municipal ordinance, said (197 S.W. 68, 72):

'In accord, however, with what we deem to be a right application of the cases reviewed, we conclude that a showing of probable cause conclusive in its nature was not made, under all of the facts in this case, by the defensive interposition of the judgment of former conviction. To hold otherwise would be to deny a right of redress to one who perhaps had been illegally arrested and unlawfully detained simply because in a hurried and perfunctory hearing before a police court following such arrest he had been convicted, although upon a trial de novo the judgment of conviction has been held for naught.

'This holding is not to be understood as precluding the showing of a former conviction as prima facie evidence of probable cause subject to rebuttal by proof of the reversal of the judgment of conviction in an appellate court after a full and fair hearing of all of the facts and any other relevant evidence, thus making the question of probable cause, as it should be where disputed, one of fact for the jury upon all of the evidence in the case. * * *'

Stating that he was not urging it as determinative of the case, but only expressing a personal opinion, the writer remarked (197 S.W. 68, 72):

'* * * A judgment upon reversal becomes not only nonexistent, but as though it has never been. This is true in regard to every relation sustained by a reversed judgment except in actions for malicious prosecution. Where, upon appeal, there is simply a review of the...