Foster v. Chicago, B. & Q.R. Co.

• Decision Date: 02 March 1929
• Docket Number: 26782
• Parties: James A. Foster v. Chicago, Burlington & Quincy Railroad Company and Frank Vest, Appellants
• Court: Missouri Supreme Court

14 S.W.2d 561

321 Mo. 1202

James A. Foster v. Chicago, Burlington & Quincy Railroad Company and Frank Vest, Appellants

No. 26782

Supreme Court of Missouri

March 2, 1929

Motion for Rehearing Overruled December 18, 1928.

Motion to Transfer to Banc Overruled March 2, 1929.

Appeal from Jackson Circuit Court; Hon. Nelson B. Johnson Judge; Opinion filed July 25, 1928. Motion for rehearing overruled December 18, 1928. Motion to transfer to Court en Banc overruled March 2, 1929.

Affirmed.

H J. Nelson and Langworthy, Spencer & Terrell for appellants.

(1) Defendant's demurrers at close of all the evidence and the peremptory instruction to find for defendants should have been given. (a) For reasons of public policy actions for malicious prosecution are not favored by the law and these considerations necessarily enter into the determination of the legal questions presented. Wilkinson v. McGee, 265 Mo. 574; Harris v. Railroad, 172 Mo.App. 261; 18 R. C. L. 11; Sebastian v. Cheney, 25 S.W. 691. (b) All the evidence in the case, and even plaintiff's evidence standing alone, showed probable cause for the prosecution. Wilkinson v. McGee, 265 Mo. 574; Pinson v. Campbell, 124 Mo.App. 260; Sharpe v Johnston, 76 Mo. 660; Stainer v. San Luis Land Co., 166 F. 220; Christian v. Hanna, 58 Mo.App. 37; Hanser v. Bieber, 271 Mo. 342; Williams v. Van Meter 8 Mo. 339; Eckerle v. Higgins, 159 Mo.App. 177; Harris v. Railroad 172 Mo.App. 261; Nolen v. Kaufman, 70 Mo.App. 651; Warren v. Flood, 72 Mo.App. 199; Railroad Co. v. Smith, 60 Kan. 4. (c) The evidence shows conclusively that the Prosecuting Attorney of Clay County was the procuring cause of the prosecution of the plaintiff. Babcock v. Merchants' Exchange, 159 Mo. 381; White v. Shradski, 36 Mo.App. 635; Carp v. Ins. Co., 203 Mo. 295; 26 Cyc. 17; Halladay v. State Bank, 212 P. 861; Malloy v. Ry. Co., 34 S.D. 330; Ryan v. Ins. Co. (Vt.), 119 A. 423; Western Oil Ref. Co. v. Glendenning (Ind. App.), 156 N.E. 182; Florida East Coast Ry. Co. v. Groves, 55 Fla. 436; Christy v. Rice, 152 Mich. 553; Moriarty v. Almich (Minn.), 169 N.W. 798; Atkinson v. Burmingham (R. I.), 116 A. 205. (2) The court committed error in admitting as part of plaintiff's case in chief, testimony of the character witnesses from Canadian, Texas, in overruling defendants' motion to strike the same from the records, and in refusing defendants' requested Instruction N and Instruction P. Kennedy v. Holladay, 25 Mo.App. 503; Boeger v. Langenberg, 97 Mo. 396; Christian v. Hanna, 58 Mo.App. 37; Carp v. Ins. Co., 203 Mo. 295; Skidmore v. Bricker, 77 Ill. 164; Lewis v. Goldman, 241 Mass. 577; McIntire v. Levering, 148 Mass. 546; Melanowski v. Judv (Ohio), 131 N.E. 360; Carroll v. Railroad Co., 134 F. 684; McAllister v. Kimberly-Clark Co. (Wis.), 173 N.W. 216; Sappington v. Fairfax (Md.), 108 A. 576; Monske v. Klee (Idaho), 221 P. 152; Puutio v. Roman (Mt.), 255 P. 731; Clark v. Eastern Mass. Ry., 254 Mass. 441; Southern Ry. Co. v. Mosby, 70 S.E. 517; Waters v. Street Ry. Co., 101 Ill.App. 273; Israel v. Brooks, 23 Ill. 577; Murphy v. Davids (Cal.), 186 P. 148; Funk v. Amor, 7 Ohio Ct. Cir. 419; Miles v. Salisbury, 21 Ohio Cir. Ct. 333; Bank of Miller v. Richmon, 64 Neb. 111. (3) The court committed error in giving to the jury, plaintiff's Instruction 5, because of the failure of said instruction to state that punitive damages could be awarded only in the event of a finding of express malice. Ruth v. Transit Co., 98 Mo.App. 1; Sparrow v. Bank, 112 A. 205; Ross v. Kerr, 30 Ida. 492; Motsinger v. Sink, 168 N.C. 548; Cartwright v. Elliott, 45 Ill.App. 458; Barnett v. Reed, 51 Pa. St. 190; Brown v. Martin (N. C.), 96 S.E. 642; Clark v. Fairley, 30 Mo.App. 335; White v. Text-Book Co. (Iowa), 146 N.W. 829. (4) The court erred in refusing Instruction M requested by and on behalf of defendants. Secs. 12551, 12549, 12561, 12562, R. S. 1919; Vansickle v. Brown, 68 Mo. 627; Zebley v. Storey, 117 Pa. 478; Redman v. Hudson, 124 Ark. 26; Seidler v. Burns, 84 Conn. 111; Duckwall v. Davis, 142 N.E. 113. (5) The petition does not state facts sufficient to constitute a cause of action against these defendants. Wilkinson v. McGee, 265 Mo. 574; State v. Ransberger, 106 Mo. 142; Stainer v. San Luis Land Co., 166 F. 220; Sec. 1230, R. S. 1919; Bank v. Murdock, 62 Mo. 73. (6) The verdict of the jury is grossly excessive in amount. Ruth v. Transit Co., 98 Mo.App. 1; Farrell v. Transit Co., 103 Mo.App. 454; Irons v. Am. Ry. Exp. Co., 300 S.W. 283; Carp v. Ins. Co., 203 Mo. 295.

Rosenberger, McVey & Freet and Lawson & Hale for respondent.

(1) Defendants' demurrers at the close of all the evidence and the peremptory instruction to find for defendants were properly refused. (a) It has never been held in this, or any other state, that a plaintiff who has been prosecuted maliciously, without probable cause and irreparably damaged, is, as a matter of law, barred from recovery of compensation therefor. Irons v. Am. Ry. Exp. Co., 300 S.W. 283; Walton Trust Co. v. Taylor, 2 F.2d 342; Carp v. Ins. Co., 203 Mo. 295; Stubbs v. Mulholland, 163 Mo. 47. (b) The question of probable cause for the prosecution of plaintiff was, under the evidence one for the jury. Steppuhn v. Railroad Co., 199 Mo.App. 571; Carp v. Ins. Co., 203 Mo. 295; Walton Trust Co. v. Taylor, 2 F.2d 342; Stubbs v. Mulholland, 168 Mo. 47; Milton v. Dairy Co., 188 Mo App. 278; Irons v. Express Co., 300 S.W. 283; Campbell v. Myers (Mo. App.), 287 S.W. 842; Webb v. Byrd (Mo. App.), 219 S.W. 683; Hanser v. Bieber, 271 Mo. 326. (c) The evidence falls far short of showing, as a matter of law, that the Prosecuting Attorney of Clay County was the procuring cause of the prosecution of plaintiff. Carp v. Ins. Co., 203 Mo. 295; Irons v. Am. Ry. Exp. Co., 300 S.W. 283; Walton Trust Co. v. Taylor, 2 F.2d 342. (2) Evidence of character witnesses from Canadian, Texas, was properly admitted as a part of plaintiff's case in chief, and the court did not err in overruling defendants' motion to strike the same from the record, or in refusing defendants' requested Instructions N and P. Evidence of plaintiff's reputation was admissible on the question of probable cause and also on the question of his damages. Plaintiff showed that his reputation in Kansas City, Missouri, was good at the time of his arrest. It was not improper to show that his reputation at Canadian, Texas, from which place he had removed five months before, was also good; in other words, that his reputation had been continuously good for many years prior to his arrest. Stubbs v. Mulholland, 168 Mo. 77; Milton v. Dairy Co., 188 Mo.App. 278; Carp v. Ins. Co., 203 Mo. 346; Sutherland, Damages (4 Ed.) secs. 1237, 1257; Black v. Epstein, 221 Mo. 305; Stark v. Publishing Co., 160 Mo. 550; Foster v. Anbuchon (Mo. App.), 221 S.W. 741; Ulrich v. Railway Co., 281 Mo. 697; Shea v. Cloquet, 97 Minn. 41; Ross v. Innis, 35 Ill. 487; Sappington v. Fairfax, 135 Md. 186; Thurkettle v. Frost (Mich.), 100 N.W. 283; McIntosh v. Wales (Wyo.), 134 P. 274; Murphy v. Davids (Cal.), 186 P. 143; Monske v. Klee (Idaho), 221 P. 152; Williamson v. Echoff, 185 Mo.App. 234. (3) Instruction 5 was in proper form and the court did not err in giving it. Carp v. Ins. Co., 203 Mo. 295; Ferguson v. Ry. Co. (Mo.), 177 S.W. 616; McNamara v. Transit Co., 182 Mo. 676; Robbs v. Ry. Co., 210 Mo.App. 429; State v. Trimble (Mo.), 232 S.W. 100; Lampert v. Drug Co., 238 Mo. 409; McMillen v. Elder, 160 Mo.App. 399. (4) Instruction M offered by defendants was properly refused. 18 R. C. L. 74, sec. 56; 38 C. J. 495, 496; 2 Sedgwick on Damages, 885, sec. 457; Sutherland on Damages (4 Ed.) secs. 1237, 1257; Drumm v. Cessnum, 61 Kan. 467; Fuqua v. Gambill, 140 Ala. 464; Grimes v. Greenblatt, 47 Colo. 495; Stoecher v. Nathanson, 5 Neb. 435; Ry. Co. v. Gehr, 66 Ill.App. 173; Miller v. Fano, 134 Cal. 103; Lang v. Mitten, 185 Mass. 233; Flam v. Lee, 116 Iowa 289; Baer v. Chambers, 67 Wash. 357; Davis v. Seely, 91 Iowa 583; Rich v. Rogers, 250 Mass. 587; Leyman Co. v. Short (Ky.), 283 S.W. 96; Briggs v. Morgan, 10 Robb (La.) 119. (5) The petition is sufficient; and even if it were defective in the respects pointed out by appellants it would still be good after verdict. Nolan v. Railroad, 250 Mo. 602; Thomasson v. Ins. Co., 217 Mo. 485; Rivers v. Norman (Mo. App.), 179 S.W. 990; Hardy v. Automobile Co. (Mo. App.), 297 S.W. 169; Finer v. Nichols, 175 Mo.App. 525; Timmins v. Hale (Ore.), 256 P. 770. (6) The verdict of the jury is not excessive in amount. Irons v. Express Co. (Mo.), 300 S.W. 283; Carp v. Insurance Co., 203 Mo. 360; Black v. Railway Co., 218 F. 239; Steppuhn v. Railroad, 199 Mo.App. 571; Ry. Co. v. Gehr, 66 Ill.App. 173; Ry. Co. v. Talbot, 131 Ind. 221; Rawson v. Leggitt, 90 N.Y.S. 5; Luthmers v. Hazel, 212 Ill.App. 207; Railway Co. v. Craddock (Tex.), 174 S.W. 965; Sutherland on Damages (4 Ed.) secs. 1234, 1235; Ross v. Innis, 35 Ill. 487; Minter v. Bradstreet, 174 Mo. 444.

Higbee, C. Davis and Henwood, CC., concur.

OPINION

HIGBEE

On April 2, 1925, plaintiff had a verdict in the Circuit Court of Jackson County at Kansas City, against the defendants, for malicious prosecution, for $ 15,000 for actual and $ 5000 for punitive damages, and from a judgment therefor the defendants appealed.

The petition was filed on August 11, 1923. On March 14, 1925 an amended petition in two counts was filed. The first count claimed damages on account of the false arrest and confinement of the plaintiff, and the second count claimed damages for malicious prosecution. At the close of all the evidence the plaintiff elected to go to the jury on the second count. Briefly summarized, it is charged in this count that at all times therein mentioned the defendant Frank Vest was a special agent, officer and detective of the defendant...