Hunt v. Ruterbusch

• Citation: 38 S.W.2d 503
• Decision Date: 02 March 1931
• Docket Number: No. 17092.,17092.
• Parties: HUNT v. RUTERBUSCH et ux.
• Court: Court of Appeal of Missouri (US)

38 S.W.2d 503

HUNT v. RUTERBUSCH et ux.

No. 17092.

Kansas City Court of Appeals. Missouri.

March 2, 1931.

Rehearing Denied April 6, 1931.

Appeal from Circuit Court, Jackson County; Allen C. Southern, Judge.

"Not to be officially published."

Action by Ellanora Hunt against Charles Ruterbusch and another. From a judgment in favor of plaintiff, defendants appeal.

Affirmed.

S. A. Handy, of Kansas City, for appellants.

Martha McLendon and M. J. Henderson, both of Kansas City, for respondent.

BOYER, C.

This case was tried upon a petition charging in two counts false arrest and malicious prosecution. The case was submitted to the jury upon the first count of the petition alone to determine whether or not defendants wrongfully instigated and caused plaintiff's arrest and imprisonment. The answer to this count of the petition was a general denial. The sufficiency of the petition is not questioned. Plaintiff demanded both compensatory and punitive damages. The jury awarded her compensatory damages alone in the sum of $500, and defendants duly appealed. The errors alleged are: (1) That the court erred in overruling defendants' demurrer to the evidence; (2) in giving plaintiff's instruction 1; and (3) in the admission of certain testimony.

The evidence most favorable to plaintiff reveals the following state of facts: On the night of May 15, 1927, three police officers of the city of Kansas City appeared at the home of plaintiff, placed her under arrest, and later took her to a police station and thence to jail, where she was confined for a period of eleven days before she finally obtained her freedom. Before relating the facts leading up to the arrest, it is well to review some of the facts showing occurrences between the parties and their relationship theretofore existing. At the time of the arrest, plaintiff was a married woman, but living apart from her husband. She had previously instituted a suit, which was then pending, to recover damages from defendants, who are husband and wife, for the alienation of the affections of her said husband. The record contains a sordid story of meretricious conduct between the woman defendant and plaintiff's husband during a period of years. Plaintiff's husband had twice attempted to obtain a divorce from her, but failed. On the day of plaintiff's arrest she was living in close proximity to the home of defendants, and on that day plaintiff's husband was visiting in the home of the defendants. There was a filling station across the road from plaintiff's house. It appears that the man at the filling station also sold bread and milk. Plaintiff went to the filling station late in the evening to buy bread and milk, and there met her husband in company with defendant Charles Ruterbusch. Plaintiff says they were intoxicated, and that some slurring or insinuating remark was made when she entered; that she told her husband to get out of the neighborhood and stay away as long as she was there; that Ruterbusch then knocked her over into a rocking chair; that she then arose, picked up a milk can, and with it knocked him down, and then returned to her home. Later in the evening plaintiff says she received a telephone call from defendant Ruterbusch, who told her that, unless she dismissed the suit for alienation of affections, he would send the officers after her, and that defendant Mrs. Ruterbusch then took the telephone and repeated the threat. Plaintiff refused to dismiss her suit, and about 11:00 p. m. three police officers entered her home without a warrant and placed her under arrest. They put her in a police car, and went to the Ruterbusch home. At this place plaintiff's husband got in the car with the officers and his wife, and, while the car was there, and while Hunt was coming out of the house to the car, both defendants followed him out onto the porch and called to the officers in these words: "Take her on down there and keep her there. We are tired of her being out here anyhow."

Plaintiff also testified that at this time the defendants came out to the car and told her that, if she would dismiss the suit for damages pending against them, they would instruct the police to release her. Plaintiff's husband accompanied the officers and his wife to the police station, and the record there made, which was in evidence, shows that plaintiff's husband preferred a charge of assault against her, and that she was held for investigation. At about 3 o'clock the next morning she was removed to another police station, and about 8 o'clock she was subjected to what is called the "show-up," the significance of which is that plaintiff, with others, was held subject to the observation of the officers present. Plaintiff was then removed to the jail building, and defendant Charles Ruterbusch filed a complaint against her in which she was charged with assault with intent to kill, upon which charge she was later tried and acquitted. Plaintiff was in jail eleven days. There is other evidence of the conduct of defendant Mrs. Ruterbusch toward plaintiff showing her purpose and intent to obtain plaintiff's husband for herself, and many taunts and slurs theretofore tendered plaintiff by said defendant. There is also evidence that plaintiff's husband was a frequent visitor at the home of defendants, and at one time he and Mrs. Ruterbusch were living together at another place.

The evidence on behalf of defendants tends to show that, on the day of plaintiff's arrest, plaintiff's husband was visiting at the home of defendants, and in the afternoon of that day plaintiff telephoned to Mr. Ruterbusch and inquired if her husband was there. She was informed that he was, and she then said: "I want you to run my husband away from there. If you don't I will fix you." The evidence also controverts...