La Font v. Richardson

• Citation: 119 S.W.2d 25
• Decision Date: 05 July 1938
• Docket Number: No. 5953.,5953.
• Parties: LA FONT v. RICHARDSON et al.
• Court: Court of Appeal of Missouri (US)

119 S.W.2d 25

LA FONT v. RICHARDSON et al.

No. 5953.

Springfield Court of Appeals. Missouri.

July 5, 1938.

Rehearing Denied August 10, 1938.

Appeal from Circuit Court, Scott County; Frank Kelly, Judge.

"Not to be published in State Reports."

Action for malicious prosecution by Clara LaFont against Walter Richardson and others. Judgment for plaintiff in the amount of $300, and the defendants appeal.

Affirmed.

Ward & Reeves, of Caruthersville, and R. F. Baynes, of New Madrid, for appellants.

Corbett & Peal, of Caruthersville, and Sharp & Sharp, of New Madrid, for respondent.

FULBRIGHT, Judge.

This action was brought by the plaintiff in the circuit court of New Madrid county for damages against the defendants for malicious prosecution. The petition alleges, among other things, that defendants maliciously and without probable cause signed an affidavit before a justice of the peace in New Madrid county charging defendant, plaintiff herein, with burglary and larceny; that the prosecuting attorney of said county, at the instance of the defendants, filed an information based upon said affidavit charging the defendant, Clara LaFont, with burglary and entering a building with a false key; that when said cause was called for trial in New Madrid county an application for change of venue was filed and the cause sent to the circuit court of Pemiscot county; that when the case was called for trial in said court the charge was by the prosecuting attorney dismissed. The answers of defendants to the petition herein were general denials. Plaintiff filed her affidavit for a change of venue in this cause which was granted and the cause sent to the circuit court of Scott county where trial was had, resulting in a verdict and judgment for plaintiff for $300. Failing in their motion for a new trial, defendants have appealed to this court.

The record discloses that plaintiff lived in the small town of Conran, and that all the defendants were her neighbors. In March, 1934, the Masonic Lodge and the Henrietta Chapter No. 181 Order of the Eastern Star held their meetings in the same lodge room in a building located at Conran. All the defendants were masons, and the plaintiff and two of the defendants, Charles Pikey and Claude Cambron, were members of the Star. On March 16, 1934, it was determined by the members of said chapter of the Eastern Star that their charter be surrendered and that the piano which was used jointly by the members of both organizations, be given to the Masons. About the first of August, 1935, plaintiff, acting upon authority from the Grand officers of the Order (although perhaps they had not been informed of all the facts), entered the building in Conran, secured the piano and some dishes which she had transferred to the chapter in New Madrid. The plaintiff had a key to the building in Conran by virtue of her long connection with the Order of the Eastern Star, and entry was made into the building after showing the letter received from the Grand Secretary to P. J. Stearns, who had been elected Master of the Masonic Lodge at Conran, and to Junot Purcell, Treasurer of said lodge. Soon after the articles were removed the defendants herein were appointed a committee of the Masonic Lodge to investigate and the prosecution followed which was subsequently dismissed.

The only assignment of error urged upon this appeal is that the court erred in refusing defendants' instructions in the nature of demurrers to the evidence offered at the close of plaintiff's case and at the close of the whole case.

When it is claimed that a demurrer to the evidence should have been sustained, the appellate court cannot interfere if there is any substantial evidence to support the verdict, and in passing upon the demurrers herein, the law is well settled, requiring no citations, that all the evidence favorable to plaintiff must be considered as true and that she must be given the benefit of all favorable inferences that may be reasonably drawn therefrom.

The burden was on plaintiff to show affirmatively that defendants instituted the prosecution maliciously and without probable cause. Therefore, in order for defendants' demurrers to be efficacious now, the evidence must fail to establish either malice or want of probable cause. Polk v. Missouri-Kansas-Texas R. Co., Mo.Sup., 111 S.W.2d 138, 114 A.L.R. 873.

The evidence most favorable for plaintiff, and which we shall consider as true, is, in substance, as follows:

Lloyd Tate, constable, testified that about October 1, 1935, warrant for the arrest of Mrs. LaFont was placed in his hands; that he made out the return on the back of the warrant; that he heard she was in Charleston and went to the sheriff of Mississippi county and got him to go along, but learned that Mrs. LaFont was not there; that when he went to Mrs. LaFont's home in Conran she came to the door and asked him not to read the warrant then because she had company; that he told her to come to Marston to make bond; and that he met her the next day at Mr. Sharp's office where she made bond.

P. J. Stearns testified that he had been county superintendent of schools for twelve years and county collector four years; that he had been a member of Point Pleasant Lodge No. 176 for six or seven years; that in 1935 he was elected Master of the lodge; that he had seen the letter dated June 24, 1935, addressed to Mrs. Clara LaFont, signed Pearl E. Peabody, Grand Secretary, Order of the Eastern Star; that Mrs. LaFont showed him the letter the first time in a store in Lilbourn.

The letter was admitted in evidence as plaintiff's exhibit 1, and stated: "The Worthy Grand Matron directed me to write you today that she granted you permission to secure the property and effects (including piano) of Henrietta Chapter No. 181, now defunct, for the use of New Madrid Chapter."

Plaintiff offered section 201 of the constitution and by-laws of the Grand Chapter, Order of the Eastern Star of Missouri, which reads as follows: "Chapters ceasing to exist from any cause (except in case of consolidation) forfeit to the Grand Chapter all of their property and effects. The last Worthy Matron, Secretary or Treasurer of the Chapter, or, the special representative of the Worthy Grand Matron in charge of the property of a Chapter extinct from any cause, shall forward to the Grand Secretary all the books, papers, jewels, charter, seal and funds of said Chapter, and hold all other property subject to her order."

Clara LaFont Alexander, plaintiff, testified that she lived in Conran, and had for about twenty-five years or longer; that she was a member of Henrietta Chapter, Order of the Eastern Star, formerly located at Conran, and had been a member for about twenty years; that she was worthy matron six different terms; that she had been secretary and had held other offices; that she was District Deputy Grand Matron in 1929-1930; that she then belonged to the New Madrid Chapter where she was worthy matron year before last and "it was while I...