Douglas v. Hoeh

• Decision Date: 19 February 1980
• Docket Number: Nos. 39983,39984,s. 39983
• Citation: 595 S.W.2d 434
• Parties: L. S. DOUGLAS, Plaintiff-Appellant, v. Harold W. HOEH, Sheriff of St. Louis County, and Reliance Insurance Companies, Defendants-Respondents.
• Court: Missouri Court of Appeals

Page 434

595 S.W.2d 434

L. S. DOUGLAS, Plaintiff-Appellant, v. Harold W. HOEH, Sheriff of St. Louis County, and Reliance Insurance Companies, Defendants-Respondents.

Nos. 39983, 39984.

Missouri Court of Appeals, Eastern District, Division Four.

Feb. 19, 1980.

Raymond Howard, Jr., St. Louis, for appellant Douglas in Case No. 39983 and for respondent Douglas in Case No. 39984.

Don R. Williams, Associate County Counselor, Thomas W. Wehrle, St. Louis County Counselor, Clayton, for appellants Hoeh and Reliance Ins. Co. in Case No. 39984.

SATZ, Judge.

This is an action for damages against a sheriff and the surety on his bond for the making of a false return.

In Count I of a two Count petition, plaintiff L. S. Douglas sued defendant Harold W. Hoeh, for actual and punitive damages on the alleged grounds that defendant Hoeh, as Sheriff of St. Louis County, had made a false return to the service of summons and petition in another lawsuit, which caused a default judgment to be entered in that suit against plaintiff, without notice to him. In Count II, plaintiff alleged defendant Reliance Insurance Companies ¹ was Sheriff Hoeh's bonding company and, thus, was vicariously liable for the acts of the Sheriff. Plaintiff obtained a jury verdict for actual damages in the amount of $10,000.00 against both defendants. In their joint motion for a new trial, defendants asserted, among other things, that the verdict was against the weight of the evidence and that the verdict directing instruction against each defendant was prejudicially erroneous. The trial court sustained defendants' motion for a new trial on the grounds that the verdict as to damages was against the weight of the evidence, granted a new trial on the issue of damages only and overruled defendants' motion in all other respects.

Plaintiff appeals, contending, in several different arguments, that the trial court erred in setting aside the verdict as to damages. Defendants also appeal, contending, among other things, that plaintiff's verdict directing instructions were prejudicially erroneous. Finding defendants' arguments against plaintiff's verdict directing instructions to have merit, we reverse and remand on that ground and, thus, do not reach plaintiff's arguments against the trial court's order granting a new trial on damages only. We discuss those facts pertinent to our decision and we discuss such other points raised that are likely to arise on retrial.

According to plaintiff's evidence, he and a Sonja Douglas were married in 1960, and they were divorced in 1972. In April, 1975, a default judgment was entered against plaintiff and Sonja in the Magistrate Court of St. Louis County. The return to the summons in that case showed that a deputy sheriff employed by defendant Hoeh had served plaintiff by leaving a copy of the summons at plaintiff's "usual place of abode . . . with a member of his family over the age of fifteen years, . . . his mother-in-law . . .". That service was obtained at 10631 Linnell, St. Louis County, the home of plaintiff's ex-mother-in-law. However, plaintiff's evidence showed that, at the time of the service of summons, he was living at his home in the City of St. Louis, that he was on unfriendly terms with his ex-mother-in-law and that he had never lived at or even been inside the Linnell residence of his ex-mother-in-law. In addition, plaintiff's ex-mother-in-law did not recall being served with a summons, for either her daughter, Sonja, or plaintiff.

Basing his theory of recovery on the filing of a false return, plaintiff's verdict director against defendant Hoeh, Instruction No. 3, required a finding for plaintiff, if the jury believed:

"First, a Sheriff's deputy did not serve a summons upon plaintiff or a member of his household, and

Second, a Sheriff's deputy made a false return, and

Third, plaintiff was thereby damaged."

Plaintiff's verdict director against defendant Reliance Insurance Company, Instruction No. 4, was identical to Instruction No. 3 with the added finding:

"Fourth, defendant Reliance Insurance Company was the holding company of defendant Hoeh."

Defendants contend these instructions do not properly submit the ultimate facts upon which the jury could find the return in issue to be false. Stated otherwise, defendants argue that these instructions fail to give the jury any real direction but, on the contrary, give the jury a "roving commission" to speculate and determine, on their own, why and in what manner the return was false. We agree.

There is no applicable MAI instruction for the charge of a false return, and, thus, a verdict directing instruction must be drafted in compliance with Rule 70.02(e), which provides that such "an instruction shall be simple, brief, impartial, free from argument, and shall not submit to the jury or require findings of detailed evidentiary facts". In general, the instructions in question meet these requirements. However, the instructions still must be unambiguous and clear to a reasonably intelligent jury, e. g., Wims v. Bi-State Development Agency, 484 S.W.2d 323, 325 (Mo. banc 1972), and the instructions still must tell the jury what ultimate facts have to be determined in order for the jury to return its verdict. See e. g., R-Way Furniture Co. v. Powers Interiors, Inc., 456 S.W.2d 632, 639 (Mo.App.1970). The instructions in question fail to meet the latter requirements.

As noted, plaintiff's theory of recovery was based upon the filing of a false return. A false return has been defined as "a return to a writ made by a ministerial officer in which is stated a fact contrary to the truth and injurious to a party having an interest in it". State v. Morant, 266 S.W.2d 723, 726 (Mo.App.1954). Thus, a cause of action based upon a false return has three basic elements: (1) the true facts, (2) a misstatement of those facts in the return, and (3) injury resulting from the misstatement of the true facts. A proper verdict directing instruction must, at least, submit the ultimate facts which define these elements. Applying this pattern to the instant case, the plaintiff's verdict directing instructions must, at least, require the jury to find first, the deputy sheriff did not serve summons in a defined manner, ² (the "true" facts according to plaintiff's evidence), and, second, the deputy sheriff made a return that he did serve summons in the manner defined in the first paragraph (a misstatement of facts in the return contrary to the "true" facts) and, third, plaintiff was thereby damaged. See Moore v. Securities Credit Co., 475 S.W.2d 430, 433 (Mo.App.1971). Under such a submission, if the jury finds the return describes conduct contrary to the conduct that it finds actually took place, the jury is compelled to conclude the return was false. Obviously, a finding of what conduct was stated in the return is an essential pre-requisite to a determination of whether that conduct differed from the conduct that actually took place. But plaintiff's instructions failed to submit this essential finding to the jury and, thus, the instructions failed to instruct the jury on the ultimate facts essential to the jury in reaching its verdict. Without this submission, the jury was given no effective direction, but, rather, was given a roving commission to consider whatever facts they pleased in order to reach their determination that the return was false. Therefore, we find plaintiff's verdict directing instructions to be erroneous. E. g., Vasquez v. Village Center Inc., 362 S.W.2d 588, 595-6 (Mo.1962); Moore v. Quality Dairy Co., 425 S.W.2d 261, 266 (Mo.App.1968).

To counter this reasoning, plaintiff contends that in State v. Morant, supra, we approved an instruction similar to the present instructions. Plaintiff's reliance on the Morant case is misplaced. In Morant, a deputy constable stated in his return that he served a summons on a member of plaintiff's family over the age of fifteen years, but plaintiff's evidence showed that the member of the family served, a son, was fourteen years old. Plaintiff's verdict director required the jury to find, among other facts, that the deputy constable "did not serve summons upon a member of (plaintiff's) family as stated in his return to said Magistrate Court " (emphasis added). Id. at 727. Thus, as can easily be seen, this instruction is similar to the form of instruction previously discussed in this opinion and it differs from plaintiff's verdict directing instructions because it properly requires the jury to determine, as one of its findings, what manner of service was reported in the return.

Plaintiff also argues that to cure the defect in issue would require him to submit detailed evidentiary facts contrary to Rule 70.02(e). In addition, plaintiff argues there was no need to define "false return" because "the jury was fully informed as to what a sheriff's return is" and "false" is a commonly understood word; or, alternatively, plaintiff argues that if the term "false return" required greater definition, defendants were required to offer an appropriate definition instruction.

These arguments misconceive the defect in issue. The instructions in question were not insufficient in detail or in definition of terms. For example, there was no need, and it may well have been improper, for plaintiff to submit specific facts pertaining to his divorce or his unfriendly relationship with his ex-mother-in-law as a pre-requisite finding to a finding that service was not had on a "member of (plaintiff's) household". Moreover, there was no real need for plaintiff to use the term "false return" in his verdict directing instructions. As can be seen from our previous discussion of an acceptable form of instruction, the term "false return", in and of itself, is not essential and, perhaps, may not even be necessary to a proper submission and, thus, that term need not be used in the instructions. What was needed and what plaintiff failed to submit to the jury...