Higgins v. Knickmeyer-Fleer Realty & Inv. Co.

• Citation: 74 S.W.2d 805,335 Mo. 1010
• Decision Date: 18 September 1934
• Docket Number: 32087,32088
• Parties: Catherine Higgins v. Knickmeyer-Fleer Realty & Investment Company, a Corporation, and Arnold J. Fleer, Appellants. Catherine Higgins v. Joseph Boxerman, Appellant
• Court: United States State Supreme Court of Missouri

74 S.W.2d 805

335 Mo. 1010

Catherine Higgins v. Knickmeyer-Fleer Realty & Investment Company, a Corporation, and Arnold J. Fleer, Appellants. Catherine Higgins v. Joseph Boxerman, Appellant

Nos. 32087, 32088

Supreme Court of Missouri

September 18, 1934

Rehearing Denied September 18, 1934.

Appeal from Circuit Court of City of St. Louis; Hon. Albert D Nortoni, Judge; Opinion filed at May Term, 1934; July 17, 1934; motion for rehearing filed; motion overruled at September Term, September 18, 1934.

Reversed.

McDonald & Just and Edwin C. Luedde for Knickmeyer-Fleer Realty & Investment Company and Arnold J. Fleer.

Respondent made no case against these appellants: first, because there is no evidence showing that these appellants requested instigated, or encouraged the prosecution; second, because the evidence of respondent's own witnesses, as well as the testimony of the others, shows that the prosecution in this case was instituted by the assistant prosecuting attorney of the city of St. Louis, acting on his own initiative, after making his own investigation; third, because as to these appellants the evidence establishes probable cause for the prosecution. Clark v. Thompson, 160 Mo. 461, 61 S.W. 194; Babcock v. Merchants Exchange, 159 Mo. 381, 60 S.W. 732; Warren v. Flood, 72 Mo.App. 199; Christian v. Hanna, 58 Mo.App. 37; Newell on Malicious Prosecution, sec. 13; Ryan v. Orient Ins. Co., 96 Vt. 291, 119 A. 423; Smith v. Federal Rubber Co., 170 Wis. 497, 175 N.W. 808; Macauley v. Starr, Inc., 186 N.Y.S. 197, affd. 233 N.Y. 601, 135 N.E. 935; 18 R. C. L., sec. 2, p. 11, and sec. 7, p. 17; Cooley on Torts (4 Ed.), sec. 121; Note, 36 L. R. A. (N. S.) 230; Hopkinson v. Railroad Co., 249 N.Y. 296, 164 N.E. 104; Genovese v. Harlingen Piggly Wiggly, 32 S.W.2d 379; Genovese v. Butt, 48 S.W.2d 587; Carr v. Zellerbach Paper Co., 14 P.2d 35; Jennings Motors v. Burchfield, 182 Ark. 1047, 34 S.W.2d 455; Granteer v. Thompson, 208 N.W. 497; Brodrib v. Doberstein, 107 Conn. 294, 140 A. 483.

Allen, Moser & Marsalek for Joseph Boxerman.

(1) There is no evidence that this appellant had any part in instituting or instigating the criminal proceeding against plaintiff, or did aught to aid or further the prosecuton thereof at any stage; but plaintiff's own evidence shows that this defendant had nothing to do with such criminal proceeding. On this phase of the case the test is "was defendant actively instrumental in putting the law in force?" To sustain the action it must affirmatively appear as a part of the plaintiff's case "that the party sought to be charged was the proximate and efficient cause of maliciously putting the law in motion." 38 C. J. 395, sec. 23; Clark v. Thompson, 160 Mo. 461; Babcock v. Merchants' Exchange, 159 Mo. 381; Peck v. Chouteau, 91 Mo. 138. (2) An attorney at law is not liable for the giving of any such advice to his client. An attorney is not liable for the acts of his client; and even if, through ignorance, he gives his client bad advice upon which the latter acts (and no such advice was here given), the attorney is not liable to one claiming to have been injured by the client in acting upon such advice. Henderson v. Cape Trading Co., 316 Mo. 384; Mechem on Agency (2 Ed.), secs. 2219-2220; Shull v. Boyd, 251 Mo. 479; Peck v. Chouteau, 91 Mo. 138; Campbell v. Brown, 2 Woods, 350; Burnap v. Marsh, 13 Ill. 540; Bicknell v. Dorian, 16 Pick. 478. An attorney has the right to act in good faith upon the facts disclosed to him, and in order to render him liable for a malicious prosecution by his client it must not only appear that he knew that the prosecution was malicious, but that he also knew that it was without cause. It is not enough that he might, with reasonable diligence, have ascertained that there was no probable cause therefor. Henderson v. Cape Trading Co., 316 Mo. 392; Mechem on Agency (2 Ed.), sec. 2220; 18 R. C. L. 63; Peck v. Chouteau, 91 Mo. 138. (3) Since the evidence conclusively shows that the criminal proceeding was instituted by the prosecuting attorney, acting on his own initiative, upon facts laid before him by others, and not this appellant, and after making his own investigation, there can be no liability on the part of this appellant. 38 C. J. 397, sec. 25; 18 R. C. L. 17, sec. 7; Warren v. Flood, 72 Mo.App. 199; Carr v. Zellerback Paper Co., 14 P.2d 35; Wasserman v. Railroad Co., 28 F. 802; Ryan v. Orient Ins. Co., 96 Vt. 291, 119 A. 493; Christy v. Rice, 152 Mich. 563; Grantees v. Thompson, 208 N.W. 497; MacCauley v. Starr, Inc., 186 N.Y.S. 197, 33 N.Y. 601. (4) The burden was upon the plaintiff to establish both malice and want of probable cause. Wilcox v. Gilmore, 320 Mo. 986; Henderson v. Cape Trading Co., 316 Mo. 391; Wilkinson v. McGee, 265 Mo. 583. (a) Probable cause is "a belief in the charge or facts alleged based on sufficient circumstances to reasonably induce such belief in a person of ordinary prudence in the same situation." Henderson v. Cape Trading Co., 316 Mo. 391; Wilcox v. Gilmore, 320 Mo. 986. (b) Plaintiff wholly failed to carry the burden resting upon her to show want of probable cause. The voluntary dismissal of the prosecution, without other facts in evidence tending to show want of probable cause, did not discharge plaintiff's burden of proof, and hence plaintiff made no case for the jury on such unsupported showing. Smith v. Burris, 106 Mo. 99; Eckerle v. Higgins, 159 Mo. 190; Henderson v. Cape Trading Co., 316 Mo. 392; Peck v. Chouteau, 91 Mo. 138.

Taylor R. Young and Herbert E. Barnard for respondent.

(1) Defendants, without probable cause, instituted the criminal prosecution; gave the necessary five days' notice to make the check good; went before the prosecuting officer and presented to him such evidence, and all the evidence that was necessary to justify, and which did induce such prosecuting officer to put the law in motion by the issuance of a warrant; concealed from such prosecuting officer all the facts, well known to them, which, if presented, would have prevented the issuance of the warrant -- all for the deliberate, diabolical purpose of extorting $ 5,225.45 from plaintiff and her relatives, which they did not owe to any of the defendants, or anyone else. The prosecution is wholly ended -- a most perfect case of malicious prosecution. Irons v. Am. Ry. Express Co., 300 S.W. 283; Foster v. Ry., 14 S.W.2d 574; Cook v. Globe Printing Co., 227 Mo. 471; Carp v. Insurance Co., 203 Mo. 295; Henderson v. Cape Trading Co., 289 S.W. 332; State ex rel. v. Ellison, 268 Mo. 225; Hunt v. Gus Gillerman, 39 S.W.2d 369; Davis v. Ry. Co., 192 Mo.App. 419; Van Nort v. Van Nort, 16 S.W.2d 643. (2) While an attorney is not ordinarily liable for errors of judgment in honestly advising his client that one whom his client wishes to prosecute has committed a crime, yet, where he willfully, for the purpose of extorting money for either himself or his client, or for their joint benefit, takes an active and the principal part in the commencement of a prosecution, with full knowledge that no crime has been committed, he is not only liable to the party prosecuted, but to a client who acted in good faith on his advice, for any loss sustained. Henderson v. Cape Trading Co., 289 S.W. 332. (3) All the evidence sought to be elicited by respondent and her counsel which tended to show that the check for $ 5,225.45 was wholly without consideration or that it was obtained by means of threats, stress of wrongful foreclosure proceedings, or was obtained by false and fraudulent methods, and that at no time was the plaintiff indebted to defendant Duke, was clearly admissible and would have been a perfect defense in a civil suit on the check. 9 Cyc. 693.

Ferguson, C. Sturgis and Hyde, CC., concur.

OPINION

FERGUSON

Action for damages for alleged malicious prosecution. The Duke Realty Construction Company, a corporation. Sam Duke, Joseph Boxerman, Knickmeyer-Fleer Realty & Investment Company, a corporation, and Henry Knickmeyer, A. J. Fleer and Charles Dietrich, members and officers of said corporation, were made defendants. During the trial plaintiff dismissed as to defendants Henry Knickmeyer and Charles Dietrich. A verdict was returned finding the issues for plaintiff against the other defendants and awarding plaintiff "actual damages in the sum of $ 1000 and punitive damages at the sum of" $ 15,000 judgment was entered accordingly. All the defendants, except the Duke Realty & Construction Company appealed. The joint-separate appeal of defendants Knickmeyer-Fleer Realty & Investment Company and A. J. Fleer is here numbered 32,087, the separate appeal of defendant Joseph Boxerman 32,088 and that of defendant Sam Duke 32,089. Abstracts have been filed and separate briefs and arguments submitted on the part of appellants, the Knickmeyer-Fleer Company, Fleer and Boxerman. The appeal (32,089) of defendant Sam Duke was dismissed here for failure of appellant to comply with our rules.

The trial, in the Circuit Court of the City of St. Louis consumed five days and the record here is voluminous. We shall, however, endeavor to make a preliminary statement of the events leading to the situation out of which this action arises. Defendant Boxerman is an attorney. He had been engaged in the practice of law in the city of St. Louis since 1912. In 1927 and for some years prior thereto, he rented and occupied a suite of office rooms in the Central National Bank Building. Defendant Sam Duke was engaged in the real estate and building construction business. It seems he carried on this business by and through a corporation, Duke Realty & Construction Company. Duke owned the entire stock of this corporation except qualifying shares. Duke rented from Boxerman, and occupied, office space in Boxerman's office suite. Harry N....