Hupp v. North Hills Lincoln-Mercury, Inc.

• Citation: 610 S.W.2d 349
• Decision Date: 02 December 1980
• Docket Number: INC,LINCOLN-MERCUR,No. WD31090,WD31090
• Parties: Robert HUPP, Plaintiff-Respondent, v. NORTH HILLS, Defendant-Appellant.
• Court: Court of Appeal of Missouri (US)

Page 349

610 S.W.2d 349

Robert HUPP, Plaintiff-Respondent, v. NORTH HILLS LINCOLN-MERCURY, INC., Defendant-Appellant.

No. WD31090.

Missouri Court of Appeals, Western District.

Dec. 2, 1980.

Motion for Rehearing and/or Transfer to Supreme Court Denied

Dec. 30, 1980.

Bernard D. Craig, Jr., Michael B. Shteamer, Kansas City, for defendant-appellant.

Edward J. Houlehan, Kansas City, for plaintiff-respondent.

Before WASSERSTROM, C. J., Presiding, and PRITCHARD and SWOFFORD, JJ.

WASSERSTROM, Chief Judge.

On plaintiff's suit for malicious prosecution, the jury awarded him actual and punitive damages. Defendant appeals. We affirm.

On October 14, 1974, plaintiff signed an order to purchase a Mark IV automobile from defendant. The agreement included that the car would be equipped with aluminum or magnesium sport wheels. When plaintiff came to take delivery of the car on October 17, the car did not have the sport wheels installed. Plaintiff handed defendant his check for $1,215.56 for the cash balance due, but according to his testimony the parties agreed for the check not to be presented for payment until the wheels had arrived and could be installed. ¹

Plaintiff immediately began having trouble with the automobile which continued all of the time that he was in possession. He complained that the engine ran rough, it had no power, the "moon" roof leaked, one of the power vent windows leaked, the gas tank took gasoline very slowly and then would fill up only to three-quarters of capacity, the lamp covers would not close unless manipulated manually, and the engine tended to die on the highway. Plaintiff took the car into defendant on November 11 for repair and at that time brought up the fact that defendant had presented his check for payment at the bank despite the agreement that this would not be done. Plaintiff testified that defendant's president Schneider stated that the presentation occurred by error and apologized. By the time plaintiff went in on November 13 to pick up the car, the check had been presented to the bank a second time. Plaintiff again protested, and he testified that defendant's president again said that the presentation was a mistake.

On December 2 an important meeting occurred by plaintiff with Schneider, Shelfield, the salesman who sold him the car, and Colyer, defendant's credit manager. Plaintiff was sorely troubled about his continued difficulties with the automobile, while defendant's representatives were concerned about being paid the $1,215.56. The meeting concluded, according to plaintiff, with defendant putting the sport wheels on the car and plaintiff delivering a new check for $1,215.56, upon the understanding that the check would not be presented for payment until the car was fixed to plaintiff's satisfaction. ²

Plaintiff not only continued to have trouble with the car, but also he learned that defendant had presented the new check to the bank for payment. Plaintiff says he protested that presentation, telling defendant's agents that they knew that he would not put money in the bank to cover the check until the car had been put into acceptable operating condition. Nevertheless, defendant proceeded with still a second presentation of the check to the bank, and again the check was returned unpaid.

About this time plaintiff retained a lawyer who wrote a letter to defendant on December 17 outlining all of plaintiff's complaints and stating that plaintiff wanted to rescind the purchase. At about the same time, Schneider consulted defendant's lawyer, Mr. Michael Messina, who referred the matter to his young associate, Mr. Wayne Fraser. On December 19, Fraser wrote a letter to plaintiff which apparently crossed in the mail the letter which had been written by plaintiff's lawyer on December 17. In his letter of December 19, Fraser demanded immediate payment of the check and stated that otherwise the check would be turned over to the county prosecutor for criminal proceedings.

A heated meeting then followed between the parties in late December or early January. At that time, according to plaintiff, Schneider stated he would not do any more work on the car and that "he was going to see that he threw me in jail over that check."

About January 22, 1975, plaintiff took the car to defendant for the last time and left it. That was followed by a formal notice dated January 30, 1975, from defendant stating that the check dated December 2, 1974, had been refused because of insufficient funds and that upon plaintiff's failure to pay the check within ten days, the check would be turned over to the prosecuting attorney of Clay County for prosecution.

Thereupon plaintiff's attorney addressed a letter dated February 5, 1975, to the county prosecutor setting forth plaintiff's version of the facts and stating in part, "I believe that this is a civil matter and I am hopeful that it can be resolved in the Courts without the necessity of any criminal action being taken." Fraser responded on February 10 with his own letter to the prosecutor in which he set forth defendant's version of the facts. In this letter Fraser said in part, "I agree with Mr. Houlehan (plaintiff's attorney) that there are some civil matters involved in other aspects of this transaction, but they have nothing to do with the December 2, 1974 check in question here."

Further consultation took place between Schneider and Fraser in which Fraser advised Schneider to take the matter to the prosecuting attorney for criminal prosecution. On February 24, Colyer did go to the authorities and signed a criminal complaint upon which an arrest warrant was issued.

On February 27, plaintiff found a note from his apartment manager telling him that he was wanted by the police. The next day, plaintiff voluntarily went to the sheriff's office at about noon. There he was told that he would have to be incarcerated unless he could make bond. He was permitted to call a bondsman, but the bondsman's secretary said he was not there at the time but that he would come to the jail as soon as he returned. Meanwhile, the authorities took two pictures of plaintiff and his fingerprints. Everything in his pockets and his jewelry was removed. After certain paperwork was completed, a uniformed sheriff wearing a badge and armed with a gun took plaintiff through the courthouse and through the public street to the jail. At the jail additional paperwork was performed, plaintiff was searched and more articles were taken from him and his belt was removed. He was then placed in a cell and later moved to another cell in the main jail with two other inmates. It was not until 8:00 p. m. that the bondsman arrived and put up the $1,000 bail bond, for which plaintiff paid a $100 fee. Soon thereafter plaintiff hired a lawyer to represent him on the fraudulent check charge and paid an attorney's fee of $600.

The criminal proceeding was heard in a magistrate court on April 16, 1975. Plaintiff testified on his own behalf, while Schneider and Colyer testified as prosecution witnesses. At the conclusion of the testimony, the magistrate took the case under advisement and on May 15, 1975, dismissed the charge against plaintiff.

On February 14, 1977, plaintiff filed this suit. The case was tried May 7 and 8, 1979, resulting in a jury verdict against defendant of $25,000 actual damages and $50,000 punitive damages.

Defendant raises the following points on this appeal: (1) that the trial court should have directed a verdict for defendant for the reason that defendant had an absolute defense because of its reliance upon advice of counsel; (2) that the trial court should have dismissed the action because there was insufficient evidence that defendant instigated the prosecution without probable cause; (3) that the trial court should have granted a new trial because the verdicts were so grossly excessive as to show bias and prejudice by the jury; (4) that the trial court should have ordered a remittitur because of the excessiveness of the verdicts; and (5) that the trial court erred in requiring defendant to produce certain financial records at the commencement of the second day of trial.

I.

Defendant's points 1 and 2 are interrelated and therefore will be considered together.

A. Probable Cause. Want of probable cause on the part of defendant in instigating the criminal prosecution is of course one of the elements which plaintiff must prove as part of his case. As showing want of probable cause, plaintiff testified that he had informed defendant that neither the first nor the second check would be covered for payment until such time as defendant complied with its promises, first to install sport wheels on the car and later to put the car into a good state of repair. According to plaintiff's testimony, the entire dispute between the parties was a civil one, but defendant utilized criminal processes in order to try to pressure him into making payment which was not yet due under the agreement of the parties.

Defendant countered that evidence by offering contrary testimony of Schneider, Shelfield and Colyer. Those witnesses testified that when the second check was given on December 2, 1974, defendant's representatives specifically asked whether the check was then good, plaintiff answered that the check was, and that the check would not have been accepted nor the car redelivered to plaintiff except upon the strength of that representation. It can be conceded that defendant would have been acting with probable cause if the facts were as testified by defendant's witnesses. Furthermore, if those facts were not in dispute, there would be probable cause as a matter of law, just as defendant contends.

However, defendant's evidence was disputed. The testimony by Schneider, Shelfield and Colyer was sharply denied by plaintiff. This conflict of testimony was pre-eminently one for reference to and decision by the jury. Haswell v. Liberty Mut. Ins. Co., 557 S.W.2d 628 (Mo.banc 1977); Hoene v....