Irons v. American Railway Express Company

• Citation: 300 S.W. 283,318 Mo. 318
• Decision Date: 02 December 1927
• Docket Number: 25976
• Parties: William E. Irons v. American Railway Express Company and W. P. Boyle, Appellants
• Court: United States State Supreme Court of Missouri

300 S.W. 283

318 Mo. 318

William E. Irons v. American Railway Express Company and W. P. Boyle, Appellants

No. 25976

Supreme Court of Missouri

December 2, 1927

Appeal from Mississippi Circuit Court; Hon. Frank Kelly Judge.

Affirmed.

Watts & Gentry, J. C. Sheppard and Arnot L. Sheppard for appellants.

(1) The judgment in this cause is entirely void for the reason that the Circuit Court of Mississippi County acquired no jurisdiction of the res. Laws 1921, p. 204; Sec 1372, R. S. 1919; State ex rel. v. Flournoy, 160 Mo 324; Planters Bank v. Phillips, 186 S.W. 752; City of Elgin v. Nofs, 113 Ill.App. 620. (2) Instructions numbered 4-A and 5, given at respondent's request, are comments on the evidence, and give undue prominence to the facts therein hypothesized, and are, therefore, reversibly erroneous. James v. Ins. Co., 135 Mo.App. 247; Paper Co. v. Shilkee, 237 S.W. 111; Curtis v. Bales, 211 Mo.App. 29; Martin v. Travelers' Ins. Co., 247 S.W. 1030; Simpson v. Burnett, 252 S.W. 954; Burton v. Holman, 288 Mo. 70; Jones v. Ry. Co., 287 Mo. 64; Zumwalt v. Railroad Co., 266 S.W. 726; Kepley v. Realty Co., 200 S.W. 756; Rice v. Bridge & Transit Co., 216 S.W. 753. (a) Instruction 5 is further erroneous in that it permits the jury to find malice from the illegality of the process upon which respondent was arrested. Malicious prosecution is founded upon the fact that the process of arrest was legal, whereas false imprisonment is founded on the fact that the process of arrest was illegal. Rosendale v. Market Square D. G. Co., 213 S.W. 171. (b) Neither malice nor want of probable cause has any place in an action to recover compensatory damages for false imprisonment. Leve v. Putting, 196 S.W. 1060; Vaughn v. Hines, 230 S.W. 379. (c) While both false imprisonment and malicious prosecution may be pleaded in separate counts in the same petition, plaintiff must elect upon which he will go to the jury, as they are entirely inconsistent, one being based upon the legality of the process, the other on the illegality of the process. Rosendale v. Market Square D. G. Co., 213 S.W. 171. (3) Instructions numbered 6 and 7, given on request of respondent, are in direct conflict with each other, the former telling the jury that the evidence warrants its finding appellants were actuated by malice in fact; the latter informing the jury that the term "malice," as used in the instructions given, means only malice in law and not malice in fact. They are, therefore, erroneously conflicting. Kuhlman v. Transit Co., 271 S.W. 797; Mansur-Tebbets Imp. Co. v. Ritchie, 143 Mo. 613; State ex rel. v. Ellison, 270 Mo. 645; McCune v. Daniels, 251 S.W. 461; Carroll v. Young, 267 S.W. 436. (4) The burden rests upon plaintiff in this character of case, to prove affirmatively the want of probable cause. DeWitt v. Syfon, 202 Mo.App. 469. This plaintiff does prima facie when he shows the prosecution terminated favorably to himself; but when defendant's evidence tending to show probable cause has been introduced, it must be overcome by plaintiff, else a demurrer to the evidence should be sustained at the close of all of the evidence. Respondent's evidence wholly failed to overcome the showing of probable cause made by appellants; hence the demurrers offered at the close of all of the evidence herein should have been sustained. Brant v. Higgins, 10 Mo. 728; Carp v. Insurance Co., 203 Mo. 351; Stubbs v. Mulholland, 168 Mo. 76; Hill v. Palm, 38 Mo. 22; Hanna v. Insurance Co., 145 S.W. 419; Jordan v. Railroad, 105 Mo.App. 446; Warren v. Flood, 72 Mo.App. 199. (5) The evidence which respondent introduced in the hope of showing that appellants caused the institution of the second prosecution against respondent wholly failed to establish that fact. Therefore, the court should have peremptorily instructed the jury that they could not find against appellants on that count. Borden v. Transit Co., 108 Mo.App. 696; White v. Shradski, 36 Mo.App. 635. (6) The court erred in refusing to rebuke counsel for respondent for improper, prejudicial and inflammatory argument to the jury. Moniel v. Railroad, 297 Mo. 633; Norris v. Railroad, 239 Mo. 695; Nichols & Shepherd Co. v. Metzger, 43 Mo.App. 607; Bishop v. Hunt, 24 Mo.App. 373. (7) The verdict of the jury in this cause is so excessive as to show conclusively that it was the result of passion and prejudice against appellants; and so excessive as to shock the conscience, in view of the character of respondent. It must be remembered that he was not one of the highly respected members of his community; but had "bummed" his way over a good portion of the United States and Canada. Jones v. Railway Co., 228 S.W. 784; Busse v. White, 259 S.W. 461; Partello v. Railroad, 217 Mo. 645.

Henson & Woody for respondent.

(1) The Circuit Court of Butler County had the legal right to send the case on change of venue to the Circuit Court of Mississippi County, that county being one of the counties in the "next adjoining circuit" to that in which Butler County is located. The order made by the Circuit Court of Butler County in that behalf, gave the Circuit Court of Mississippi County jurisdiction. Sec. 1361, R. S. 1919; Laws 1921, p. 204; Wright v. Kansas City, 187 Mo. 695. (2) Appellants' objection to respondent's Instructions 4A and 5 is without merit. Cantor v. Ins. Co., 285 S.W. 803; Ward v. Railroad, 277 S.W. 908; Willi v. Railroad, 274 S.W. 24; Beckerleg v. Ins. Assn., 274 S.W. 917; Lowry v. Ins. Co., 272 S.W. 79; Murphy v. Ins. Co., 268 S.W. 671; Haywood v. Kuhn, 168 Mo.App. 66; Weaver v. Rudasill, 172 Mo.App. 33; Robb v. Bartells, 263 S.W. 1013; Kirn v. Iron Co., 146 Mo.App. 451; Rollins v. Schwacker, 153 Mo.App. 284; Hartman v. Railroad, 39 Mo.App. 88; Stewart v. Sparkman, 75 Mo.App. 106; Allamong v. Peoples, 75 Mo.App. 276; Blackwell v. Hill, 76 Mo.App. 46; Gordon v. Burris, 153 Mo. 223; Jackson v. Railroad, 157 Mo. 621. (a) Instruction 5 properly states the law. Arrest without legal process may be shown in an action for malicious prosecution to show that the prosecution was malicious, and without probable cause. Stubbs v. Mulholland, 168 Mo. 86; Carp v. Ins. Co., 203 Mo. 295. (b) The cause of action stated in both counts of respondent's petition are for malicious prosecution, and not for malicious prosecution and false arrest; but, even if there were two causes of action stated in both counts, appellants are in no position to complain here for they filed no demurrer, and no motion to elect, tried the case as one for malicious prosecution, failed to call the matter to the attention of the trial in their motion for new trial, and failed to assign it as an error. Lehner v. Smith, 284 S.W. 167; Wank v. Peet, 190 S.W. 88; State ex rel. Peet v. Ellison, 196 S.W. 1103; Ford v. Dickinson, 280 Mo. 206. (3) Respondent's Instruction 6 correctly defines the two kinds of malice, and correctly states the law of this case. Carp v. Ins. Co., 203 Mo. 295, 353. And Instruction 7 correctly defines malice in law. Bokers v. Walker, 192 Mo.App. 230, 182 S.W. 116. There is no conflict between these instructions. Instruction 7 limits the jury to a consideration of only legal malice in determining the question whether or not the prosecution was malicious. This instruction is more favorable to appellants than it should have been, and they cannot complain. Respondent had a right to have the jury consider both malice in fact and malice in law. (4) On a demurrer at the close of a plaintiff's case, his testimony must be taken as true, and the most favorable inferences resonably deducible therefrom must be indulged in support thereof. Waggoner v. Hedgepeth, 279 S.W. 432; Compton v. Construction Co., 287 S.W. 474; Riggle v. Wells, 287 S.W. 803. In determining the propriety of a demurrer at the close of the whole case, plaintiff's evidence must be taken as true, defendant's evidence as false where contradicted by that of plaintiff, and every favorable inference reasonably deducible from all the evidence must be indulged in support of plaintiff's case. Wair v. Foundry Co., 285 S.W. 155; Elsroth v. Karrenbrock, 285 S.W. 525. This rule applies to both counts of the petition. (5) Under the circumstances in this case, the remarks of counsel for respondent in the closing argument does not constitute error for which appellant may complain. Allen v. Autenrieth, 280 S.W. 79; Rainier v. Railroad, 271 S.W. 500; Hays v. Miller's Estate, 189 Mo.App. 72. (6) Under all the facts and circumstances in evidence in this case, the verdict is not excessive. Carp v. Ins. Co., 203 Mo. 295; Cook v. Printing Co., 227 Mo. 471; Mexican Ry. v. Gehr, 66 Ill.App. 173; Black v. Railroad, 218 F. 239; Weaver v. Page, 6 Cal. 681; Railroad v. Craddock, 174 S.W. 965; Shelton v. Railroad, 255 F. 182, 256 F. 991; Hays v. Rys. Co., 183 Mo.App. 608; Smith v. Railroad, 279 Mo. 173; Duffy v. Rys. Co., 217 S.W. 888.

Davis, C. All concur, except Walker, J., who dissents.

OPINION

DAVIS

This is an action for malicious prosecution. The petition is in two counts. The first count is based on the original arrest and prosecution of plaintiff before a justice of the peace in Stoddard County on the preliminary hearing, charging burglary of an express office, and the second count is based on a subsequent prosecution in the circuit court for the same offense after his discharge by the justice. The cause was, on change of venue, sent from Butler to Mississippi County, and there tried. The jury returned a verdict for five thousand dollars actual and ten thousand dollars punitive damages on the first count, and two thousand dollars actual and three thousand dollars punitive damages on the second count.

The following facts seem to be conceded and the cause was tried upon the theory that at Essex, Stoddard County, the defendant American Railway...