Fischer v. MAJ Inv. Corp.

• Decision Date: 09 March 1982
• Docket Number: Nos. 43536,43537,s. 43536
• Parties: David FISCHER, Plaintiff-Respondent, v. MAJ INVESTMENT CORPORATION, Defendant-Appellant.
• Court: Missouri Court of Appeals

Page 902

631 S.W.2d 902

David FISCHER, Plaintiff-Respondent, v. MAJ INVESTMENT CORPORATION, Defendant-Appellant.

Nos. 43536, 43537.

Missouri Court of Appeals, Eastern District, Division Two.

March 9, 1982.

Motion for Rehearing and/or Transfer Denied April 16, 1982.

Application to Transfer Denied May 17, 1982.

Ben N. Messina, St. Louis, for defendant-appellant.

John E. Bell, St. Louis, for plaintiff-respondent.

GUNN, Judge.

Plaintiff-respondent David Fischer brought a two-count action against defendant-appellant MAJ Investment Corp. (MAJ) arising out of an alleged false return of service in a suit for unpaid rent and for wrongful sequestration of wages. ¹ Fischer was eminently successful in the presentation of his case to the jury, for he was awarded a verdict of $15,000 actual damages and $15,000 punitive damages on each of the two counts-a total of $60,000. However, the trial court, stating that it had no discretion in the matter, reduced the amount of actual damages in each count to $1,000, which was the amount of the prayer.

On appeal MAJ alleges the following trial court errors: (1) excluding the corporate president from the courtroom under the witness exclusion rule; (2) submitting an instruction on wrongful sequestration which deviated from the MAI on malicious prosecution and omitted the probable cause element; (3) refusing to grant a motion for directed verdict on the Count I punitive damage issue; (4) denying its motion for a new trial based on jury bias, passion and prejudice by reason of excessive verdict.

Fischer appeals the trial court's order reducing the actual damages awarded and its refusal to grant leave to amend the petition to conform to the verdict.

We affirm.

Fischer and his wife, Julie Fischer, rented a Clayton apartment from MAJ, signing a one-year lease. At the end of the lease term, the Fischers remained in the apartment as month-to-month tenants. They separated in August, 1977 with Julie moving to Cleveland, Ohio on a permanent basis. Bonds of marriage were sundered in September, 1977, with Fischer remaining in the apartment for a time.

In November and December, 1977, Fischer experienced periods of inadequate heating in the apartment. Also, a large section of plaster fell from the living room ceiling damaging several items of personal property. Expostulations of discontent were made, but MAJ was not fain to respond to the entreaties, and remedy was long in coming. In fact, a Clayton building inspector determined the apartment to be untenantable. As a forcible means of complaint, Fischer sent MAJ only a portion of his December rental payment. MAJ's response was to return the check with a form letter demanding full payment plus a late charge. Fischer advised MAJ that he was leaving and by the end of December had moved into the St. Louis apartment of a very close friend, Cynthia Black.

In January, 1978, Fischer suggested that MAJ retain the $125.00 security deposit made at the time the lease was entered into as payment for any rent due, but MAJ insisted on full rent for December and January. Receiving no further payment, MAJ filed suit against David and "Julia" Fischer in St. Louis Magistrate Court. MAJ utilized a special process server for the service of summons who certified that in April, 1978 he had obtained service on "Julia E. Fischer" by giving her a summons at the Fischer's St. Louis apartment and leaving a copy for Mr. Fischer with her.

On May 24, 1978, MAJ obtained a default judgment against Fischer for $270.00 plus costs. By letter it informed Fischer of the judgment. His attorney responded that there had been no service of summons. MAJ executed on its default judgment by obtaining a writ of sequestration, causing the seizure of two of Fischer's paychecks and the withholding of the total sum of $304.52.

Fischer subsequently instituted suit in St. Louis Circuit Court for false return of process and wrongful sequestration, seeking $1,000 actual damages and $25,000 punitive damages for each count. At trial, Fischer's whilom wife, Julie, testified that she had neither been served with summons nor been to St. Louis since her separation and divorce from Fischer. Cynthia Black likewise testified that she had never been served, and Fischer denied ever having received a summons. The process server insisted that he had left two copies of the summons at Cynthia Black's St. Louis apartment, serving them on a woman acknowledging herself to be "Julia" Fischer. At trial he identified Ms. Black as the person served.

The jury accepted Fischer's version of events, and awarded him $15,000 actual and $15,000 punitive damages on each count. In a post-trial sua sponte order the trial court reduced the amount of actual damages to the amount prayed for-$1,000 per count-and denied Fischer's motions to reinstate the verdict and to amend the petition. Both parties appealed.

At the outset of the trial Fischer's attorney requested imposition of the so-called witness exclusion rule and its particular application to MAJ's corporate president. Over MAJ's objection, Fischer's request was granted. On appeal, MAJ alleges denial of due process by failure of representation and "necessary assistance to counsel" during trial.

MAJ concedes that the polestar on this issue is that the exclusion of a witness during trial is a matter within the discretion of the trial court. Stanford v. Morgan, 588 S.W.2d 89, 93 (Mo.App.1979). Though given opportunity by interrogatory to disclose the names of those essential to its cause, MAJ failed to list its president. Nor did MAJ assert any persuasive reason for the necessity of the president's presence at the time the motion for exclusion was made.

Having failed to demonstrate any need for its president's presence at trial, MAJ has been unable to establish abuse of trial court discretion in excluding him from the courtroom except at the time of his testimony.

We certainly recognize that a corporation is entitled to have its representatives present at a trial, and in a multitude of situations, exclusion of the corporate president or other officer from the courtroom would be an abuse of trial court discretion. But for the reasons stated, in this case there was no abuse of discretion or prejudice to the defendant by imposition of the witness exclusion rule.

MAJ next contends that Fischer's verdict director on wrongful sequestration-Instruction No. 14-was erroneous for a variety of reasons. ² It asserts that wrongful sequestration is in the nature of malicious prosecution; hence MAI 23.07, applicable to malicious prosecution, should have been submitted on the wrongful sequestration count. It also alleges that Instruction No. 14 erroneously omitted the element of probable cause, an essential element of malicious prosecution. Finally, it complains that the instruction is misleading and indefinite.

Objections to the instruction's failure to comply to MAI 23.01, malicious prosecution, and its failure to include the element of probable cause have first been raised on appeal and are therefore not preserved for review. ³ Garmon v. General American Life Insurance Co., 624 S.W.2d 42, 47-48 (Mo.App.1981); Stearns v. Be-Mac Transport Co., 621 S.W.2d 539, 543 (Mo.App.1981); Rule 70.03; Rule 78.07. We note, nonetheless, that submission of MAI 23.07 would not certainly have been appropriate, as MAJ insists. Jackson v. Missouri Rating & Collection Co., 537 S.W.2d 442, 443 (Mo.App.1976), is precisely pertinent in this regard.

Further, we find no abuse of trial court discretion with respect to the contention that the instruction is misleading and indefinite. Reid v. Timme, 611 S.W.2d 363, 368 (Mo.App.1980); Matter of Estate of Mitchell, 610 S.W.2d 681, 688 (Mo.App.1980). Submission of Instruction No. 14 did not constitute reversible error.

MAJ next asserts that the trial court erred in refusing to grant its motion for a directed verdict with respect to punitive damages for false return of service. It argues that Fischer failed to prove malice on the part of the process server.

In determining the sufficiency of the evidence to submit the question of punitive damages to the jury, we view the evidence in the light most favorable to the plaintiff and consider all inferences favorable to the submission. Deck and Decker Personnel Consultants, Ltd. v. Thomas, 623 S.W.2d 90, 92 (Mo.App.1981). It is not contested that a special process server is an agent for the principal and that a cause of action arises against the principal when a false return is made. Moore v. Securities Credit Co., 475 S.W.2d 430, 432-33 (Mo.App.1971). Further, punitive damages may be awarded against a corporate defendant for the wrongful acts of its agent committed in the course of his agency and by virtue of his authority as agent. Tietjens v. General Motors Corp., 418 S.W.2d 75, 88 (Mo.1967); Rinker v. Ford Motor Co., 567 S.W.2d 655, 669 (Mo.App.1978). Of course, to recover punitive damages, the evidence must show that the...