Hallen v. Smith

• Decision Date: 31 July 1924
• Docket Number: 22377,22380
• Citation: 264 S.W. 665,305 Mo. 157
• Parties: HILDEGARDE HALLEN, Appellant, v. JAMES H. SMITH and JOHN S. LEAHY, Appellants
• Court: Missouri Supreme Court

264 S.W. 665

305 Mo. 157

HILDEGARDE HALLEN, Appellant, v. JAMES H. SMITH and JOHN S. LEAHY, Appellants

Nos. 22377, 22380

Supreme Court of Missouri

July 31, 1924

Appeal from St. Louis City Circuit Court; Hon. Moses Hartmann, Judge.

Affirmed in part and Reversed in part.

Randolph Laughlin for plaintiff.

(1) Plaintiff's evidence tends to show concerted action between Smith and Leahy at the police station on the night of March 1, 1909. They appeared there jointly, persecuted her jointly, and jointly threatened her with the penitentiary unless she would consent to do their bidding, to act as a "lady detective" to spy on Mrs. Fortner, to obtain evidence from her as to Fortner's whereabouts, and to report to Smith and Leahy. Such evidence was competent, and tended to prove a conspiracy. The plaintiff may either prove a conspiracy which renders the acts of the conspirators admissible in evidence, or she may prove the acts of the different persons and thus prove a conspiracy. Tucker v Hyatt, 151 Ind. 232; Patch Mfg. Co. v. Protective Lodge, 77 Vt. 294; Spiess v. People, 122 Ill 7; 5 R. C. L. 1103-1104, sec. 53, notes 10, 11 and 12. (2) There being evidence tending to prove a conspiracy, it follows that any act done by Smith in pursuance of the plan of such conspiracy, with reference to its common object was and is, in contemplation of law, the act of Leahy, and Leahy is responsible for everything done by Smith which the execution of the common design made probable as a consequence, even though such consequence was not intended as a part of the original design or common plan. McManus v. Lee, 43 Mo. 206; U.S. v. Lancaster, 44 F. 896; Spiess v. People, 122 Ill. 1; State v. Bersch, 276 Mo. 397; State v. Shout, 263 Mo. 360; Cooper v. Johnson, 81 Mo. 488. (3) The connection between Smith and Leahy having been established by plaintiff's testimony as to their concert of action and statement at the police station, then whatever was done in pursuance of the conspiracy by one of the conspirators is to be treated as the act of both, and both are liable therefor, irrespective of the fact that they did not actively participate therein, or of the extent to which they benefited thereby. State v. Roberts, 201 Mo. 728; State v. Bobbitt, 228 Mo. 266; State v. Fields, 234 Mo. 623; Doremus v. Hennessy, 176 Ill. 608; Purington v. Hinchcliff, 219 Ill. 159; Page v. Parker, 43 N.H. 363; Patch Mfg. Co. v. Protective Lodge, 77 Vt. 294; Fountain Co. v. Roberts, 92 Wis. 345; Zinc Co. v. Schulsburg Bank, 103 Wis. 125. (4) There being evidence tending to prove a conspiracy, it follows that whether or not the acts of Smith, done on the night of March 5th, were done in furtherance of the common design, or whether they were the natural and probable consequences flowing from the execution of the common design, was a question for the jury. Spiess v. People, 122 Ill. 1; Powers v. Commonwealth, 110 Ky. 386; 53 L. R. A. 243; Bauers v. State, 24 Tex.App. 542; 5 R. C. L. 1065, notes 11 and 12; State v. Shout, 263 Mo. 374. (5) It results from the foregoing that plaintiff had the right to go to the jury on the third count as to both Smith and Leahy. Therefore the court erred in giving the instruction which forced the nonsuit, and erred in overruling plaintiff's motion to set aside the nonsuit.

Charles P. Williams for defendant Leahy.

(1) The granting of Smith's demurrer to the evidence on the third count constituted absolutely no reason for granting a new trial against Leahy on the first count. (2) The court erred in holding that in a case of trespass against joint and several defendants the jury was bound to agree with respect to all and that otherwise their verdict was a nullity. Marler v. Ayliffe, Croke (James) 134; Winn v. Railroad, 245 Mo. 413; Hunt v. Simonds, 19 Mo. 588; Medlin Milling Co. v. Moffat Co., 218 F. 690; James v. Evans, 149 F. 140; State ex rel. v. Tate, 109 Mo. 265; Kleiber v. Railroad, 107 Mo. 240; Westcott v. Bridwell, 40 Mo. 146; Rude v. Mitchell, 97 Mo. 365; La Riviere v. La Riviere, 97 Mo. 80; Stotler v. Railroad, 200 Mo. 149; Clark v. Railroad, 234 Mo. 435; Needles v. Burke, 98 Mo. 476; Lockwood v. Bartlett, 7 N.Y.S. 481, 130 N.Y. 340; Allison v. Darton, 24 Mo. 340; Parker v. Moore, 29 Mo. 218; Fenwick v. Logan, 1 Mo. 402; Ferguson v. Thacher, 79 Mo. 511; Berkson v. Ry. Co., 144 Mo. 211; State ex rel. v. Blakemore, 275 Mo. 703. (3) Under our system of pleading, it is fundamental that a count against A and B cannot be joined with a count against A. Trefny v. Eichenseer, 262 Mo. 436; Doan v. Holly, 25 Mo. 357; Liney v. Martin, 29 Mo. 28; Jamison v. Culligan, 151 Mo. 410; Beattie Mfg. Co. v. Geradi, 166 Mo. 142. (4) The code answer setting up misjoinder is a statutory plea in abatement of the whole action. Tidd's Practice, star page 642 (3 Am. Ed. 1856); 1 Ency. Pleading & Practice, p. 30; 23 Cyc. p. 773; LaGrande v. Portland Public Market, 58 Ore. 126; Clark v. Latham, 25 Ark. 16; Larco v. Clements, 36 Cal. 132; Cushman v. Savage, 20 Ill. 330; Blackburn v. Watson, 85 Pa. St. 241; Southmayd v. Jackson, 15 N.W. 476 (Misc.) . (5) The plaintiff was not below and is not here, by reason of that fundamental misjoinder, entitled to "any new trial." She has had her day in court on the issue of misjoinder so far as this action is concerned.

OPINION

Graves, J.

These are cross-appeals and were argued and submitted together. Pleadings and facts can well be commingled in a short outline of the case. Plaintiff had, for more than a year prior to the incidents involved in this action, been a stenographer and notary public in the real estate brokerage office of one M. Dwight Fortner. A few days before the happenings which gave rise to the instant suit Fortner left for parts unknown, but was later located in Paris, France, and brought back to Missouri, and served a term in our penitentiary. The day Fortner left (ostensibly for Chicago, but in fact for New Orleans) he gave plaintiff a check for $ 500 on the St. Louis Union Trust Company, with directions to cash it and pay some bills. This the plaintiff did upon the next day, and after paying the bills, gave the remainder of the money to Fortner's wife. Just prior to his departure Fortner had been trying to effect a sale of some apartments owned by Henry C. Tulley, to F. A. Steer. Mr. Steer had procured from the Third National Bank of St. Louis a cashier's check for $ 12,000, to be used in the purchase of the apartments. This check was payable to F. A. Steer, and Mr. Steer had endorsed it over to Henry C. Tulley, and thus indorsed turned it over to Fortner. The plaintiff had seen this check, and knew of the attempted real estate deal. Tulley declined to receive the check, being unwilling to accept Steer's proposed price. Four or five days after Fortner's disappearance it was discovered that someone (presumably Fortner) had forged the name of Tulley to an indorsement upon this check, and it was deposited to Fortner's credit in the St. Louis Union Trust Company. It is claimed that Fortner had tried to get Tulley to indorse the check in order (as he said) to get Steer's money back from the Third National Bank, but Tulley declined to indorse it. When it was discovered that the indorsement had been forged, or was thought to have been forged, Mr. A. C. Stewart was counsel for the Trust Company and also President of the Board of Police Commissioners in the City of St. Louis. The matter was brought to the attention of the chief of police by the Trust Company. The investigation of the matter was assigned to defendant Smith, the then chief of detectives of St. Louis. During the investigations Smith consulted with Stewart, and the investigations resulted in the discovery of other supposed forgeries by Fortner. Plaintiff, as notary public, had taken and attached certificates of acknowledgments to instruments, wherein it was said that the persons denied that they had ever appeared before her, or given such acknowledgments.

Mr. Steer, becoming anxious about his $ 12,000, employed defendant Leahy, a lawyer and his son-in-law, to look after his interest with the St. Louis Union Trust Company. Steer had learned that Fortner had checked out practically all of the $ 12,000 deposit, and the $ 500 check spoken of above was paid out of such deposit. Leahy called upon Stewart in the interest of his client, Steer. Smith was present at one or more of these meetings. Stewart, however, assured Leahy that Steer would be paid as soon as it was definitely determined that Tulley's name had been forged. All this was before March 1, 1909.

The police, under the lead of defendant Smith, on the night of March 1st undertook to and did get a statement from plaintiff, after getting her and her mother to a police station. At this interview Leahy was present, and participated as plaintiff claims. After the conclusion of the interview, plaintiff and her mother were returned to their home. The officers were trying to locate Fortner, and wanted to get what information they could from plaintiff. They also had knowledge at the time of the alleged false certificates.

The petition complains of three distinct transactions, in as many counts, (1) an alleged false imprisonment on March 1, 1909, (2) a malicious prosecution on March 6, 1909, and (3) an alleged false imprisonment on March 6, 1909.

The suit was originally brought against James H. Smith, A. C Stewart, F. A. Steer, John S. Leahy and St. Louis Union Trust Company. The cause was dismissed as to Stewart and the Trust Company. Defendant F. A. Steer died and there was never a revivor as to him. In each count there is an alleged conspiracy charged to have existed between all of the said original defendants. At time of trial only Smith and Leahy were left to do battle. Certain details as to the course of...