Hughes v. Aetna Ins. Co.
| Decision Date | 14 September 1953 |
| Docket Number | No. 2,No. 43356,43356,2 |
| Citation | 261 S.W.2d 942 |
| Parties | HUGHES v. AETNA INS. CO |
| Court | Missouri Supreme Court |
Byron A. Roche, St. Louis, for appellant, Charles E. Gray, St. Louis, of counsel.
Sievers, Reagan & Schwartz, St. Louis, for respondent.
Action by Homer Hughes to recover $15,000 actual and punitive damages for the alleged malicious prosecution of a civil suit against him by defendant, Aetna Insurance Company. At the close of plaintiff's evidence the court directed a verdict for defendant, judgment went accordingly, and plaintiff has appealed.
The offending civil suit was one to recover from Hughes: (1) The amount of Aetna's out-of-pocket loss ($689) under an automobile theft policy issued by it, which loss had been occasioned, in turn, by the loss sustained by Aetna's policyholder, Ruby Motors, by reason of the alleged theft of a '39 Pontiac, against which the policy insured; and (2) $15,000 punitive damages on account of his 'allegedly fraudulent. wrongful, malicious, unlawful and willful' conduct in causing such loss to Aetna. The theory on which that suit was based is disclosed by the following allegations of Aetna's answer in the case at bar: 'Further answering and as an affirmative defense, defendant states that on or about April 9, 1947, Homer Hughes stole an automobile from Ruby Motors, Inc., that after said automobile was stolen by Homer Hughes, defendant herein paid Ruby Motors, Inc., under an insurance policy covering theft, the sum of Six Hundred Eighty-Nine ($689.00) Dollars by reason of the theft of said automobile by Homer Hughes; that thereafter, on or about May 17, 1949, the automobile was recovered, and thereafter, the suit was instituted by defendant herein against Homer Hughes being cause Number 29767 of the Circuit Court of the City of St. Louis, to recover from Homer Hughes the money expended by this defendant by reason of the theft of said automobile by Homer Hughes; * * *.' Such was the issue and contest in that case, trial of which resulted in a judgment for Hughes upon a jury verdict. No appeal was taken, the judgment became final, and the present action followed.
'The constitutive elements of an action for malicious prosecution are: (1) The commencement or prosecution of the proceedings against the present plaintiff; (2) its legal causation by the present defendant; (3) its termination in favor of the present plaintiff; (4) the absence of probable cause for such proceeding; (5) the presence of malice therein; and (6) damage to plaintiff by reason thereof.' Coleman v. Ziegler, (Mo.) 248 S.W.2d 610, 614, and cases cited. The presence of elements (1), (2) and (3) has already been made to appear; that of (6) is unquestioned; and (5) is treated by the parties as collateral to (4) in the sense, and upon the principle that 'malice may be inferred as an issuable fact from the showing of want of probable cause', Lindsay v. Evans, Mo.App., 174 S.W.2d 390, 396, and we shall so treat it. It was for the supposed absence of element (4)--the required showing of want of probable cause--that the verdict in defendant's favor was directed, Aetna contending then and now that plaintiff's proof not only failed to show want of probable cause for prosecuting the civil suit against Hughes as for larceny, but that probable cause therefor was established by such proof as a matter of law. We proceed, then, to an examination of the facts to determine the propriety of the directed verdict, viewing them in the light most favorable to plaintiff, giving him the benefit of all reasonable inferences to be drawn therefrom, and bearing in mind also that Randol v. Kline's, Inc., 322 Mo. 746, 759, 18 S.W.2d 500, 506.
Preliminary to making a statement of the facts, we take occasion to say that the transcript in this case presents the very type of situation which Supreme Court rule 1.04(d) was intended to prevent, and observance of which would save the reviewing court much time, energy--and patience! Here we have the single question of whether the evidence is sufficient to make a case for the jury. Throughout the 162-page record are exhibits having some bearing on that issue, but not one of these exhibits is even referred to in the index, much less identified with the required particularity, i. e., 'Exhibits shall be identified in the index by number or letter and page and shall, in addition, be described so that the court can distinguish the exhibits.' Laxity in complying generally with this and other sections of rule 1, governing appellate practice and procedure, has become so widespread and commonplace as to approach the point of vexatiousness. For this reason, more stringent enforcement of all its provisions, including the prescribed penalty of dismissal for violations, is in immediate prospect, and should be anticipated.
Plaintiff had lived in the community 30 years. He owned his own business, known as 'Commercial Auto Body,' located at 3305 Virginia, St. Louis, where he did body and fender work, including painting. One of his customers was Ruby Motors, 5700 Natural Bridge Road, a used car concern owned by Henry and Nathan Rubenstein. In the six months preceding April 9, 1947, Hughes had made repairs on 25 or 30 cars for Ruby Motors, such work having been done at his own shop to which he had caused the cars to be taken from the Rubenstein or Ruby place of business. The practice in this connection was for Hughes or his employes to pick up the cars at the Ruby lot (frequently in the evening around closing time, 8:30 to 9:30 p. m.), and either tow or drive them to the shop at 3305 Virginia. The 1939 Pontiac out of which the present controversy arises was one of such cars. It was owned by Ruby Motors, and work had been done on it at the Hughes shop in accordance with custom. The car had been delivered back to Ruby Motors upon completion of the work, but complaint was made that the work was not satisfactory. The car was again picked up and taken to the Hughes shop, further work done on it, and once more it was delivered to Ruby Motors. Again the Rubensteins complained, this time that certain paint work called for by the contract had not been done. Whereupon Hughes made an arrangement with Nathan Rubenstein whereby he (Hughes) would pick up the car early the next morning, April 9, 1947, his testimony in that connection being: 'I told Nathan to have the car so that I could get it out of there and I wouldn't have to move a lot of automobiles, and he said he would, and he would leave it open for me.' The plaintiff further testified that when he picked up the car the next morning 'everything was there waiting for me so I could pull the car out, it was free and clear of everything.' This appears to have been before Ruby Motors was open for business, but nevertheless at an hour 'when everybody was going to work out there at the Small Arms plant.' He towed the car to his place of business, did the painting requested, then notified Nathan Rubenstein that the car was ready, but that there would be an additional charge of $6 for the work, and that 'if he wanted it this time, he would have to come down and get it.' He further testified that Rubenstein
Later that day, on the complaint of the Rubensteins, the police appeared at the Hughes shop and placed him under arrest. He testified that at the time of his arrest he told Bauer, the police detective who interrogated him:
Detective Bauer corroborated plaintiff, his testimony on that point being that when he questioned Hughes on the Rubensteins' complaint of the car having been taken without the consent of the owner that Bauer further testified that upon inquiry as to the whereabouts of the car, Hughes' statement (that he admitted having the car and his purpose in withholding it) was incorporated into the police report of the investigation, a microfilm copy of which report, numbered 49365, was produced at the trial by the police department under a subpoena duces tecum. On the basis of that report it was shown that the warrant officer of the district refused to issue a warrant. Two months later, in June, 1947, the circuit attorney's office did cause a warrant to be issued for Hughes on a charge of theft of the automobile. At his preliminary hearing on that charge, held in December, 1947, he was discharged. It is not contended that the present defendant had any connection with, or responsibility for, the arrest of Hughes nor the ensuing criminal proceedings against him, as such.
Plaintiff caused the car to be stored in a private garage at 4609 Westminster, rear, where it remained approximately two years, and until...
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