Huffstutler v. Coates, 47689

• Decision Date: 11 April 1960
• Docket Number: No. 1,No. 47689,47689,1
• Citation: 335 S.W.2d 70
• Parties: Henry HUFFSTUTLER, Respondent, v. Gordon R. COATES, Appellant
• Court: Missouri Supreme Court

Page 70

335 S.W.2d 70

Henry HUFFSTUTLER, Respondent, v. Gordon R. COATES, Appellant.

No. 47689.

Supreme Court of Missouri, Division No. 1.

April 11, 1960.

Motion for Rehearing or to Transfer to Court en Banc Denied

May 9, 1960.

Robert V. Niedner, Rollin J. Moerschel, Niedner & Niedner, St. Charles, James V. Billings, Kennett, for plaintiff.

Sherman Landau, St. Louis, Wentker & McCulloch, St. Charles, for appellant.

COIL, Commissioner.

Henry Huffstutler recovered $7,000 actual and $3,000 punitive damages in his malicious prosecution against Gordon R. Coates. Coates appealed and claims that the trial court erred in refusing to direct a defendant's verdict, in giving and refusing instructions, in permitting improper examination of witnesses by plaintiff's counsel, and that the judgment is excessive. The criminal charge which plaintiff claimed defendant maliciously prosecuted against him was attempted arson. It was and is undisputed that defendant executed an affidavit as a result of which plaintiff was arrested and held for trial in the circuit court after a preliminary hearing before a magistrate; and was placed on trial in the circuit court where he was discharged at the close of the state's evidence when the trial judge sustained his motion for a judgment of acquittal.

Defendant's point with respect to his contention as to a submissible case is that plaintiff failed to prove the essential element of want of probable cause. Thus, we need not review the evidence to determine but may assume that plaintiff's evidence was sufficient to cause these other constitutive elements of an action for malicious prosecution to be jury issues, viz., the commencement of the prosecution of a proceeding against the present plaintiff, its legal causation by the present defendant, its determination in favor of present plaintiff, the presence of malice on the part of defendant, and damages to plaintiff by reason of the proceeding. Higgins v. Knickmeyer-Fleer Realty & Investment Co., 335 Mo. 1010, 74 S.W.2d 805, 812[1-4]. In determining the question whether plaintiff's evidence was sufficient to make want of probable cause a jury question, we view the evidence in the light most favorable to plaintiff, give him the benefit of all reasonable inferences to be drawn therefrom and, of course, disregard defendant's evidence unfavorable to plaintiff. Hughes v. Aetna Ins. Co., Mo., 261 S.W.2d 942, 945[1-4].

In February 1956 plaintiff began to work for defendant on a farm in St. Charles County, became farm manager in May, and lived on the farm in a 2-story house. Plaintiff worked until July 1, 1957 when defendant hired a new manager. There had been no ill feeling between plaintiff and defendant, at least on plaintiff's part. Plaintiff left the farm, apparently on July 1, and went to Portageville, Missouri, and returned on July 3 to obtain his furniture and other property. With him were his wife and two men to assist in the move, Messrs. Kimes (who owned the truck) and Rhoda.

Plaintiff's house faced south with the kitchen at the southwest corner. A driveway ran east and west along the south side of the front yard. The driveway's north edge was about 20 feet from the kitchen door. Fourteen to 16 inches west of the west kitchen wall was a metal stand or frame which held two bottles, each containing (when full) 100 pounds of liquid petroleum, either butane or propane or a mixture of them. There was a valve at the opening of each bottle from which copper tubing extended to a regulator which served both bottles. One-fourth or 3/8"'' copper tubing extended from the regulator through the west kitchen wall to a gas stove and a water heater. On July 3 there was a small quantity of liquid petroleum in one bottle and the other was full. Plaintiff owned the contents and the bottles belonged to a dealer. After he discovered that he was leaving, he made arrangements to sell the contents to Marvin Lightfoot for $5 but, on the third, Lightfoot declined to purchase. Earl Price, who had replaced plaintiff as farm manager, offered $5 for the gas on behalf of defendant Coates, but plaintiff chose not to sell the gas to Coates for the use of Price.

Plaintiff removed his gas stove and placed it, along with other things, in the truck which was parked in the driveway about twenty feet from the kitchen door. After all of plaintiff's property had been removed from the house and all windows and outside doors had been closed, plaintiff disconnected the copper tubing which ran from the valve on each bottle to the regulator and then opened the valves so that the liquid petroleum from each bottle (in gaseous form) was caused to escape into the air. At that time there was a wind blowing from the south to the north which carried the gas away from the west side of the house and into the open fields to the north. No gas could or would enter the house under the circumstances existing at the time. Plaintiff knew that under proper conditions, i. e., when the right mixture of gas and air occurred, the gas would burn and that it was explosive. There was evidence from which the jury could reasonably have found that propane is 1 1/2 times heavier than air and thus tends to drop to the ground; that an explosive mixture of propane and air is a mixture containing 2 1/2 per cent to 9 1/2 per cent propane gas in air--less than 2 1/2 per cent or more than 9 1/2 per cent propane would not constitute an explosive mixture; that at one point or exact time while the gas was escaping into the air from the bottles there would be an explosive mixture but generally, when the gas is in the open, there would be an excess of air and thus no explosive mixture; that the combustible ratio of propane is 23 cubic feet of air per cubic foot of propane, so that a mixture of 4 per cent propane and 96 per cent air will burn; that there is always a danger of combustion and explosion when propane gas is released into the open immediately adjoining a dwelling house at the time when there is an explosive or combustible mixture of propane and air, but that the gas released under the circumstances of the present case would tend to fall to the ground and the wind from the south would blow it northwardly into open space.

About 30 minutes after he had released the gas, plaintiff departed in the truck with his wife and the two who had accompanied him from Portageville. Plaintiff did not know whether the bottles were empty at that time but there was testimony that it would require approximately 30 minutes for all the gas in a full bottle to empty into the air. As plaintiff departed he met and waved to Billy Lightfoot who was traveling toward the house on a tractor and was then about 100 feet from it. Plaintiff continued on to Portageville, where he established his residence.

On July 9 while at work in a field he was arrested by a deputy sheriff of New Madrid County on a St. Charles County warrant charging him with an attempt to commit arson. He returned to St. Charles for a preliminary hearing, where he was represented by counsel, at the conclusion of which he was ordered to await the order of the Circuit Court of St. Charles County, and he gave a $1,000 bond for his appearance there. On April 23, 1958, he appeared in St. Charles for the trial of the case of the State of Missouri against himself on the charge of attempted arson, and, as we have heretofore noted, the trial judge sustained present plaintiff's motion for judgment of acquittal at the close of the state's evidence. He returned to southeast Missouri and at the time of the trial was residing in Rector, Arkansas.

When plaintiff arrived at the farm on July 3, Earl Price, the new farm manager, was there. Price and others, including Billy Lightfoot and Dickie Coates, defendant's son, had soon (about 1 1/2 hours prior to plaintiff's subsequent departure) gone to a field to grease some machinery. Apparently the Lightfoot boy had been sent to the house to obtain a jug of water. He heard a 'spewing noise' and saw from a distance that the gas bottles were frosted. He returned to the field and reported the noise to Price. It took him about 15 minutes on the tractor to cover the distance. Price and defendant's son returned to the house on the tractor and, according to Price's testimony, which we shall later discuss, he turned off the gas, entered the house, put a cap over his mouth and nose because of the presence of gas, opened doors and windows, reported the incident to Mrs. Coates, and when defendant Coates arrived at the farm about 4 p. m. that same day reported the incident to him. Coates said, 'I will fix him [referring to plaintiff]. I'll just swear out a warrant for the s---- o---- b---- and have him arrested.' (Bracketed insert ours.) On July 5 Coates visited the prosecuting attorney and signed and swore to this affidavit:

'Gordon R. Coates, being first duly sworn, states upon his oath that in the County of St. Charles, State of Missouri, on the 3rd day of July, 1957, one Henry Huffstutler did then and there wilfully and unlawfully and feloniously attempt to procure the burning of a two-store dwelling belonging to and being the property of Gordon R. Coates and Thelma B. Coates, by causing to be released within said dwelling combustible material and substance, namely, butane gas, with the intent that said butane gas would be ignited, thereby causing said dwelling to be exploded and burn.'

Defendant's precise contention is that inasmuch as plaintiff's evidence showed that plaintiff was ordered by the examining magistrate, after a preliminary hearing, to be held to await the order of the circuit court, a presumption of probable cause thereby arose which could be overcome only by substantial evidence that the magistrate's order was procured by false testimony or other improper means; and that plaintiff not only failed to adduce any such evidence but, on the contrary, his evidence affirmatively showed that there was no false testimony at the...