Hill v. S. S. Kresge Co.

• Decision Date: 01 December 1919
• Citation: 217 S.W. 997,202 Mo.App. 385
• Parties: THOMAS HILL, by H. H. HILL, his Father and Next Friend, Respondent, v. S. S. KRESGE COMPANY, a Corporation, and ENOCH P. BRAMFORD, Appellants
• Court: Kansas Court of Appeals

217 S.W. 997

202 Mo.App. 385

THOMAS HILL, by H. H. HILL, his Father and Next Friend, Respondent, v. S. S. KRESGE COMPANY, a Corporation, and ENOCH P. BRAMFORD, Appellants

Court of Appeals of Missouri, Kansas City

December 1, 1919

Appeal from Jackson Circuit Court.--Hon. A. C. Popham, Special Judge.

AFFIRMED CONDITIONALLY.

M. J Kilroy and E. A. Scholer for respondent.

Jay Richardson and J. M. Johnson for appellants.

OPINION

BLAND, J.

This is an action for false imprisonment. The jury returned a verdict against both defendants for $ 3,000 actual and $ 2,000 punitive damages. This is a companion case of Vest v. S. S. Kresge Company, 213 S.W. 165. Plaintiff in this case is the same person as the individual, Hill, mentioned in that case. As the facts in this case are substantially the same as those in the Vest case, it is unnecessary to restate them. They will be found set out in full in the Vest case. However, the points raised in this case are somewhat different from those decided in the Vest case.

Defendants' first point is that the special judge who sat in this case had no jurisdiction to try it. The circuit court of Jackson county is composed of several divisions sitting at Kansas City and Independence, in such county. This case was pending in Division Eight, over which Judge Daniel E. Bird presided as the regular judge. The case was not tried before him. Instead, it was tried before A. C. Popham, Esq., a member of the Jackson County bar, as special judge. His selection and the cause thereof are set forth in the following record:

"Be it remembered that on this 20th day of May, 1918, the same being the 7th day of the regular May term of the Circuit Court of Jackson County, Missouri, at Kansas City, begun and held at the court house in said city, county and State; the Honorable Daniel E. Bird, judge, regularly presiding over this the Eighth Division of the Circuit Court of Jackson County, Missouri, was called out of the city, and being therefore unable to hold court in this division of said circuit court, the clerk of this court proceeded to hold an election among the members of the bar, being more than five members of the Jackson County Bar present and participated at said election, the Honorable A. C. Popham was elected special judge in accordance with the provisions of the Statutes of the State of Missouri in such cases made and provided."

The record also showed the oath of office was duly administered.

The statute relative to the disqualification of the regular judge and election of a special one in civil cases pending in the circuit courts of the State generally is found in sections 3961 and 3967, Revised Statutes 1909. The latter section requiring that an entry of the election "shall be made on the records of the court, together with the reasons therefor;" including "the fact that the requisite oath has been taken" by such special judge. But an additional statute authorizing an election in the circuit court of Jackson County composed, as we have said, of several divisions, is found in section 5, of the Session Acts of 1913, p. 212. It reads as follows:

"Whenever the judge of any division of said circuit court shall be sick, absent, or, from any cause, is unable to hold any term or part of term of court in such division, or his regular term at Independence, such term, or part of term, may, by request of such judge of such division, be held by a judge of any other division of said circuit court; and if such judge fail to make such request, or if the judge so requested, for any reason, fail to hold such term, or part of term, of court in such division, or his regular term at Independence, then the attorneys of court may, in the manner provided by general law, elect one of their members possessing the necessary qualifications to hold court in such division, or at Independence, for the occasion."

It will be observed that the record recital disclosed that Judge Bird was unable to hold court in his, the Eighth Division, by reason of being out of the city but it contains no affirmative showing that the regular judge requested or failed to request the judge of some other division to hold court for him. There was no objection made to the jurisdiction of the special judge until the case was brought to this court. The circuit court of Jackson County is a court of general jurisdiction and if we cannot indulge the presumption that the request, or failure to request, by Judge Bird of another judge to hold court for him was not present as required by statute (a matter we need not pass upon), there is no question but that special Judge Popham was a de facto judge, and there being no objection to his acting in the case and all parties acquiescing, the lack of jurisdiction, if any, cannot be raised now. [State ex rel. v. Seay, 64 Mo. 89; Nickerson v. Leader Mercantile Co., 90 Mo.App. 336; Usher v. Telegraph Co., 122 Mo.App. 98; Aiken v. Sidney Steel Scraper Co., 197 Mo.App. 673; State v. Miller, 111 Mo. 542.]

It is urged that the court erred in the giving of plaintiff's instructions Nos. 1 and 2 on the question of actual damages for the reason that they permitted a verdict for plaintiff without requiring the jury to find that defendants acted with malice. Malice need not be proven in an action for false imprisonment when recovery for actual damages only is prayed for, but is necessary to be proved where punitive damages is sought, and must be submitted to the jury in an instruction covering the latter kind of damages. [Wehmeyer v. Mulvihill, 150 Mo.App. 197, 130 S.W. 681; Thompson v. Buchholz, 107 Mo.App. 121, 81 S.W. 490.] But it is insisted that plaintiff in his petition pleaded malice and having pleaded this element, although it was not necessary, his proof and instructions must follow his petition, and that, therefore, this element should have been submitted in the instructions covering even actual damages. If plaintiff unnecessarily pleaded malice in his petition in connection with his request for actual damages, there is no question but that it would be necessary for him to prove and submit malice in his instructions covering such damages. [Billingsley v. Kline Cloak Co., 196 Mo.App. 534; Murphy v. McAdory 183 Ala. 209.] But we do...